Rubi v. 49'er Country Club Estates, Inc.

Decision Date23 April 1968
Docket NumberCA-CIV,No. 2,2
Citation7 Ariz.App. 408,440 P.2d 44
PartiesPeter RUBI, Dennis Weaver and Thomas Jay, all duly elected Supervisors of the Board of Supervisors in and for the County of Pima, State of Arizona, William C. Speed and Peggy T. Speed, husband and wife, Appellants, v. 49'ER COUNTRY CLUB ESTATES, INC., an Arizona corporation, and Magna Investment & Development Co., a foreign corporation, Appellees. 449.
CourtArizona Court of Appeals

Robert Hillock, Tucson, for appellant, Board of Supervisors.

Johnson, Darrow, D'Antonio, Hayes & Morales, by, Raymond F. Hayes, Tucson, for appellants, Speed.

Robertson & Fickett, by, Burton J. Kinerk, Tucson, for appellees.

KRUCKER, Judge.

The appellees, plaintiffs below, own property zoned CR--1 (one acre residential) in a subdivision known as the 49'er Country Club Estates, located in Pima County. The property obtained this zoning when the original subdivision plot was approved by the Board of Supervisors of Pima County prior to the adoption in April, 1963, of the Agua Caliente-Sabino Creek plan. (The zoning ordinance herein involved.)

In February, 1966, the plaintiffs applied for a rezoning of certain parcels within the estates to CR--5 which would allow construction of denser housing such as the townhouses contemplated by them. The County Planning and Zoning Commission, after a hearing, recommended to the Board of Supervisors approval of the rezoning application from CR--1 to CR--5, subject to certain conditions. The Board of Supervisors conducted full and complete hearings on the application and denied it by a vote of 2 to 1. Thereupon the plaintiffs filed suit in superior court, Pima County, seeking judicial relief by way of declaratory judgment and mandamus on the grounds that the Board of Supervisors had acted arbitrarily and capriciously in denying the application. Certain property owners in the area were granted leave to intervene in the action.

The case was tried to the court sitting without a jury and the court resolved all issues in favor of the plaintiffs, declared that they were entitled to use the subject property for the building of townhouses, a permitted use within CR--5 zoning, and directed that a writ of mandamus issue to the Board of Supervisors commanding them to grant the request for rezoning from CR--1 to CR--5. The Board of Supervisors and the intervenors Speed filed their respective notices of appeal from this judgment, but only the intervenors have filed briefs in this court.

The appeal challenges the trial court's invalidation of the Board's action in denying the rezoning application.

Although the complaint is lacking in clarity, we construe it as an attack on the constitutionality of the zoning ordinance. 1 The general purpose of zoning laws is to promote the general welfare by providing a more stable environment for the orderly development of a community, i.e., a means of strengthening the character of a particular area in terms of its use. Weitz v. Davis, 102 Ariz. 40, 424 P.2d 168, 171 (1967); McNaughton v. Boeing, 68 Wash.2d 659, 414 P.2d 778 (1966). They find their justification in the police power, exerted in the interest of the public. 1 Yokley, Zoning Law and Practice (3d ed.) § 2--1, at 24.

The principles fixing the validity or invalidity of zoning ordinances have often been stated; however, it is the application of these principles to a given state of facts which creates the difficulty. The Board of Supervisors, in adopting the Agua Caliente-Sabino Creek zoning plan, acted in a legislative capacity, Hart v. Bayless Investment & Trading Company, 86 Ariz. 379, 389, 346 P.2d 1101 (1959), cloaking the ordinance with a presumption of validity. City of Phoenix v. Fehlner, 90 Ariz. 13, 18, 363 P.2d 607 (1961); Mueller v. City of Phoenix, 102 Ariz. 575, 435 P.2d 472, 478 (1967).

The plaintiffs who assailed this ordinance had the burden of overcoming this presumption. City of Phoenix v. Fehlner, supra; Rathkopf, Law of Zoning and Planning (2d ed.) § 18, at 127. In order to have the zoning ordinance declared unconstitutional, they were required to affirmatively show that the restriction was 'clearly arbitrary and unreasonable,' without 'any substantial relation to the public health, safety, morals, or general welfare.' City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923 (1928).

The term 'reasonableness' is not susceptible of concrete definition but rather depends upon the facts and circumstances of the particular case. 1 Yokley, Zoning Law and Practice (3d ed.) § 2--14, at 57. It has been held that the exercise of the police power under an ordinance may be proper in a general sense but may be unreasonable and confiscatory as applied to a particular parcel of property. See, Horwitz v. Town of Waterford, 151 Conn. 320, 197 A.2d 636 (1964); White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778 (1959); Board of Zoning Appeals of New Albany v. Koehler, 244 Ind. 504, 194 N.E.2d 49 (1963); Golden v. City of St. Louis Park, 266 Minn. 46, 122 N.W.2d 570 (1963); Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo.1963); Francis v. City and County of Denver, 418 P.2d 45 (Colo. 1966).

Of critical importance here is the limited role of the judiciary in zoning cases. Courts are ill equipped to sit as super-zoning commissions. Therefore, where the reasonableness of a zoning ordinance if fairly debatable, it must be upheld. City of Phoenix v. Fehlner, supra; Huneke v. Glaspy, 155 Colo. 593, 396 P.2d 453 (1964); Meginnis v. Trustees of Shepherd and Enoch Pratt Hospital, 246 Md. 704, 299 A.2d 417 (1967); Wilkins v. City of San Bernardino, 162 P.2d 711 (Cal.1945); Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074 (1927); State ex rel. Manchester Improvement Company v. City of Winchester, 400 S.W.2d 47 (Mo.1966); 101 C.J.S. Zoning § 68. The following comment in Robinson v. City of Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166 (1957) reveals the judicial function:

'With the wisdom or lack of wisdom of the determination we are not concerned. The people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life. Let us state the proposition as clearly as may be: It is not our function to approve the ordinance before us as to wisdom or desirability. For alleged abuses involving such factors the remedy is the ballot box, not the courts. * * *' 86 N.W.2d, at 169.

The trial court found that the ordinance was unreasonable and bore no proper relation to the police power of the state. Its findings and conclusions as to the reasonableness of the ordinance, however, are not binding on this court if the record shows the question is 'debatable.' Hamer v. Town of Ross, 59 Cal.2d 776, 31 Cal.Rptr, 335, 382 P.2d 375 (1963); Skyline Materials, Inc. v. City of Belmont, 198 Cal.App.2d 449, 18 Cal.Rptr. 95 (1962). As stated in Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38 (1949):

'The appellate courts look beyond such determinations and consider in some detail the basic physical facts appearing in the record, such as the character of the property of the objecting parties, the nature of the surrounding territory, the use to which each has been put, recent trends of development, etc., to ascertain whether the reasonableness of the ordinance is fairly debatable. (Citations omitted) Similarly, findings which relate to matters of opinion and judgment, such as that property is 'suitable only' for certain purposes, are not controlling. (Citations omitted) As we have seen, matters of this type lie within the discretion of the zoning authorities, and their action will be upheld if the question is fairly debatable.' 202 P.2d at 43.

However, the fact that there may be a difference of opinion among witnesses does not mandate a judicial finding that the reasonableness of the ordinance is debatable. Myers v. City of Elmhurst, 12 Ill.2d 537, 147 N.E.2d 300 (1958); Huttig v. Richmond Heights, supra; City of Tulsa v. Swanson, 366 P.2d 629 (Okl.1961). Rather, the court must determine from all the facts whether difference of opinion are reasonable and justifiable. Mutz v. Village of Villa Park, 83 Ill.App.2d 1, 226 N.E.2d 644 (1967).

The mere fact the property would be substantially more valuable if another use were permitted is not in itself sufficient reason to invalidate an existing zoning ordinance. City of Phoenix v. Fehlner, supra; Reeve v. Village of Glenview, 29 Ill.2d 611, 195 N.E.2d 188 (1963); City and County of Denver v. American Oil Co., 150 Colo. 341, 374 P.2d 357 (1962); Maywood Proviso State Bank v. Village of Berkeley, 55 Ill.App.2d 84, 204 N.E.2d 144 (1965). Although mere loss of value is not considered controlling, when it is shown that no reasonable basis of public welfare requires the restriction and resulting loss, some courts have taken the view that the presumption of validity is dissipated. See LaSalle National Bank of Chicago v. Cook County, 12 Ill.2d 40, 145 N.E.2d 65 (1957); First National Bank and Trust Co. of Evanston v. County of Cook, 15 Ill.2d 26, 153 N.E.2d 545 (1958); Horwitz v. Town of Waterford, 151 Conn. 320, 197 A.2d 636 (1964); Long v. City of Highland Park, 329 Mich. 146, 45 N.W.2d 10 (1950); Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo.1963).

In City of Tucson v. Arizona Mortuary, supra, our Supreme Court has indicated when judicial intervention may be proper:

'Doubtless, if the value of the property rights destroyed is so great, as compared with the benefit done, that it clearly appears the ordinance is arbitrary and unreasonable, the courts will interfere, but if there can be any reasonable argument on the question the legislative will must prevail.' 34 Ariz., at 512--513, 272 P.2d at 929.

Our Supreme Court in City of Phoenix v. Fehlner, supra, has laid down the following test, quoting from the landmark case of Arverne Bay Construction Company v. Thatcher...

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