Rotter v. Coconino County

CourtSupreme Court of Arizona
Citation169 Ariz. 269,818 P.2d 704
Docket NumberNo. CV-90-0327-PR,CV-90-0327-PR
PartiesFranz ROTTER, South Grand Canyon Hospitality, Inc., an Arizona Corporation, Plaintiffs-Appellees Cross Appellants, v. COCONINO COUNTY, Coconino County Planning and Zoning Commission, and William L. Towler, Director of the Coconino County Department of Community Development, Defendants-Appellants Cross Appellees.
Decision Date03 October 1991

FELDMAN, Vice Chief Justice.

Coconino County petitioned for review from the court of appeals' opinion allowing Franz Rotter and his corporation, South Grand Canyon Hospitality, Inc. (collectively Rotter), to expand a nonconforming use in violation of a county zoning ordinance onto an adjacent parcel first acquired by Rotter after passage of an ordinance forbidding that use. Rotter v. Coconino County, 167 Ariz. 198, 805 P.2d 1019 (Ct.App.1990). We granted review pursuant to Rule 23, Ariz.R.Civ.App.P., 17B A.R.S., and have jurisdiction under article 6, § 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.


Rotter owns and operates a hotel on a leased parcel of land in Tusayan, Arizona, an unincorporated town within Coconino County. Rotter built the hotel in 1980 on parcel 11G. At that time, parcel 11G and the surrounding parcels (10B and 10D), which were not owned or used by Rotter, were all zoned to permit hotels. In 1981, Coconino County (the County) adopted a comprehensive zoning plan that restricted all three parcels to multi-family residential use. Thus, under the 1981 ordinance, as well as the 1987 ordinance that superseded it, hotels are not a permitted use. Rotter, of course, continued to operate his hotel as a legal, preexisting nonconforming use. See A.R.S. § 11-830(A). In 1987, he purchased portions of parcels 10B and 10D, now designated as parcel 10G. Parcel 10G is adjacent to parcel 11, but is in a different zoning district. 1

In December 1987, Rotter applied to the Coconino County Planning and Zoning Commission (the Commission) for a permit to expand his nonconforming hotel use by one hundred percent of its area onto parcel 10G. The Commission denied the permit because, under the County's zoning ordinance (the Ordinance), a nonconforming use may not expand onto a "site which it did not occupy at the time it became a non-conforming use." Ordinance § 17.3(B).

Rotter then filed a special action in superior court, seeking an order requiring the County to issue the building permit. The superior court agreed with Rotter that the expansion was authorized by A.R.S. § 11-830(B), which provides:

A nonconforming business use within a district may expand if such expansion does not exceed one hundred per cent of the area of the original business.

The court held that, in view of this statute, the County had no authority to "legislate against expansion of a business across differently zoned property lines," even though the expansion would extend a prohibited use onto a parcel acquired after the zoning ordinance was enacted. Order, Aug. 17, 1988. The court subsequently issued an order requiring the County to grant a building permit to Rotter in accordance with his expansion plans.

On appeal, a majority of the court of appeals accorded A.R.S. § 11-830(B) its broadest construction, finding that, as a county rather than a city zoning provision, "the policy favoring the eventual elimination of nonconforming uses is inapplicable to the interpretation of A.R.S. § 11-830(B)." Rotter, 167 Ariz. at 204, 805 P.2d at 1025. The court interpreted A.R.S. § 11-830(B) as a statute "by which the state legislature guaranteed expansion of nonconforming business uses." Id. at 203, 805 P.2d at 1024 (emphasis added). It therefore concluded that A.R.S. § 11-830(B) accorded the property owner a right to expand free of county restriction, regardless of whether the expansion would extend across zoning district lines or upon a parcel not previously burdened by the use. Id. at 205, 805 P.2d at 1026. To the extent that the Ordinance conflicted with this right, it was invalid. Id. at 202-03, 805 P.2d at 1023-24. Dissenting, Judge Gerber read the statute as granting a "limited permission " to expand, "discretionary to the zoning commission." Id. at 208, 805 P.2d at 1029 (emphasis in original). The dissent based this construction on two grounds. First, it found that Arizona's public policy favors the eventual elimination of nonconforming uses. Id. at 207, 805 P.2d at 1028 (citing Gannett Outdoor Co. v. City of Mesa, 159 Ariz. 459, 461, 768 P.2d 191, 192 (Ct.App.1989)). Second, the fact that the legislature amended the original language "shall have the right to expansion" to read "may expand" indicated its intent not to confer an absolute right to expand the nonconformity. Id. at 208, 805 P.2d at 1029.

We granted review to determine whether a county may prohibit expansion of a nonconforming use onto an adjacent parcel not previously burdened by the use and acquired after passage of the ordinance barring that use.

A. Relevant Law of Vested Nonconforming Uses

A nonconforming land use is commonly defined as a lawful use maintained after the effective date of a zoning ordinance prohibiting such use in the applicable district. See 1 R. ANDERSON, AMERICAN LAW OF ZONING 3d § 6.01, at 446 and 447 n. 2 (1986). The doctrine of vested nonconforming uses is based on the reluctance of courts to apply zoning ordinances retroactively, thus destroying vested property rights. 4 A. RATHKOPF, THE LAW OF ZONING AND PLANNING § 51.01, at 51-4 (1987 & 1990 Supp.); see Watanabe v. City of Phoenix, 140 Ariz. 575, 577, 683 P.2d 1177, 1179 (Ct.App.1984) (principle of nonconforming use is based upon the injustice and doubtful constitutionality of compelling immediate discontinuance of the use). Any ordinance that eliminates nonconforming uses solely by virtue of its enactment is generally held unconstitutional as a taking of property without due process of law. O'Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401, 403-04 (1949); Bergford v. Clackamas County, 15 Or.App. 362, 515 P.2d 1345, 1347 (1973). A nonconforming use, however, is a source of vested rights only if it was in actual existence and use before the effective date of the ordinance. See RATHKOPF, supra § 51.01; Young, The Regulation and Removal of Nonconforming Uses, 12 W. RESERVE L. REV. 681, 686 (1961); see also Sherman-Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 230 A.2d 568, 572 (1967) (it is not enough that the use be contemplated, rather the property must be "so utilized as to be 'irrevocably committed' to that use.") (quotingTown of Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112, 120 (1965)).

Further, the vested right to continue the nonconforming use runs with the land and is not personal to the owner of the use at the time the right vests. RATHKOPF, supra § 51.05. The owner is thus limited to the original premises and may not assert any "vested right" to remove the nonconforming use to another parcel of land that was not used for this purpose prior to the effective date of the ordinance. See, e.g., Jensen's v. Town of Plainville, 146 Conn. 311, 150 A.2d 297, 299 (1959) (plaintiff's right to operate nonconforming use extends only to original tract and number of trailers existing at the time it became a nonconforming use).

Although nonconforming uses are constitutionally protected from the retroactive effect of zoning regulations, such uses are not favored by the law, primarily because they detract from the effectiveness of comprehensive land use regulation, often resulting in lower property values and blight. County Council v. E.L. Gardner, Inc., 293 Md. 259, 443 A.2d 114, 118 (1982). Because of these negative effects, nonconforming uses should be eliminated or reduced to conformity as quickly as possible within the limits of fairness and justice. Beerwort v. Zoning Bd. of Appeals, 144 Conn. 731, 137 A.2d 756 (1958); County Council, 443 A.2d at 119; New London Land Use Assoc. v. Zoning Bd. of Adjustment, 130 N.H. 510, 543 A.2d 1385, 1389 (1988).

With these relevant general principles in mind, we turn to examine the validity of the Ordinance as applied to Rotter's expansion request.

B. The Relationship of the Arizona Statutes to Local Ordinance

In most jurisdictions, county and city governments do not have inherent power to enact zoning ordinances. That power is derived from enabling acts passed by state legislatures. The authority to deal with a nonconforming use is thus broadened or narrowed by the enabling act. See generally ANDERSON, supra § 6.03. In Arizona, the provisions of A.R.S. §§ 11-801 through 11-832 grant counties authority to adopt planning and zoning regulations, affirmatively requiring each county zoning commission to formulate and adopt a comprehensive long-term plan for development of the area within its jurisdiction. A.R.S. § 11-821(A). The county plan must "provide for zoning" and must "show the zoning districts designated as appropriate for various classes of residential, business and industrial uses." § 11-821(B).

Coconino County's zoning ordinance was developed pursuant to the power granted by A.R.S. § 11-801 et seq. See Ordinance No. 81-1 (adopted by Coconino County Board of Supervisors, Aug. 3, 1981). In general, a zoning ordinance will be upheld if it is a reasonable exercise of the power to zone for the purposes of public health, safety, and welfare. Cardon Oil Co. v. City of Phoenix, 122 Ariz. 102, 593 P.2d 656 (1979). The ordinance must, however, operate within the statutory grant of authority to zone. An ordinance is invalid if it conflicts with the state statute delegating the local authority power to act. See City of Scottsdale v....

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