Scenic Arizona v. City of Phoenix Bd. of Adjustment

• Decision Date: 09 February 2012
• Docket Number: No. 1 CA–CV 09–0489.,1 CA–CV 09–0489.
• Citation: 228 Ariz. 419,268 P.3d 370,621 Ariz. Adv. Rep. 4
• Parties: SCENIC ARIZONA, an Arizona corporation; Neighborhood Coalition of Greater Phoenix, an Arizona corporation, Plaintiffs/Appellants/Cross–Appellees, v. CITY OF PHOENIX BOARD OF ADJUSTMENT, a municipal agency, Defendant/Appellee,American Outdoor Advertising, Inc., an Arizona corporation, Defendant/Appellee/Cross–Appellant.
• Court: Arizona Court of Appeals

228 Ariz. 419

268 P.3d 370

621 Ariz. Adv. Rep. 4

SCENIC ARIZONA, an Arizona corporation; Neighborhood Coalition of Greater Phoenix, an Arizona corporation, Plaintiffs/Appellants/Cross–Appellees,

v.CITY OF PHOENIX BOARD OF ADJUSTMENT, a municipal agency, Defendant/Appellee,American Outdoor Advertising, Inc., an Arizona corporation, Defendant/Appellee/Cross–Appellant.

No. 1 CA–CV 09–0489.

Court of Appeals of Arizona, Division 1, Department B.

Nov. 17, 2011.As Amended Feb. 9, 2012.

Gammage & Burnham, P.L.C. By Cameron C. Artigue and Carolyn V. Williams, Phoenix, Attorneys for Plaintiffs/Appellants/Cross–Appellees.

Gary Verburg, Office of the City Attorney By L. Michael Hamblin, Phoenix, Attorneys for Defendant/Appellee City of Phoenix.

Shorall McGoldrick Brinkmann, PC By Thomas J. Shorall, Jr. and Asa William Markel, Phoenix, Attorneys for Defendant/Appellee/Cross-Appellant American Outdoor Advertising.Rogers Towers, P.A., By William D. Brinton, Pro Hac Vice, Jacksonville, FL, Arizona Center for Law in the Public Interest By Joy E. Herr-Cardillo, Tucson, Attorneys for Amicus Curiae The Sierra Club and Scenic America.Quarles & Brady L.L.P. By Kevin D. Quigley, David E. Funkhouser, III and Sarah R. Anchors, Phoenix, Attorneys for Amicus Curiae Clear Channel Outdoor, Inc.Thomas C. Horne, Arizona Attorney General By Bryan B. Perry, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Department of Transportation.

OPINION

BROWN, Judge.

¶ 1 The City of Phoenix Board of Adjustment (“Board”) granted a use permit to American Outdoor Advertising, Inc. (“American Outdoor”) to operate an electronic billboard adjacent to Interstate 17.¹ The Neighborhood Coalition of Greater Phoenix, along with Scenic Arizona,² petitioned for special action in the superior court, asserting the billboard would violate Arizona Revised Statutes (“A.R.S.”) section 28–7903 (1998),³ a provision of the Arizona Highway Beautification Act (“AHBA”). The court determined that Scenic had standing to challenge the Board's decision, but denied the petition on its merits, finding the Board did not act in excess of its authority. For the following reasons, we affirm the court's decision as to standing, but reverse on the merits because the billboard's intermittent lighting is not allowed under the AHBA.

BACKGROUND

¶ 2 In early 2008, American Outdoor submitted an “application for zoning adjustment” to the City requesting a use permit to allow an “electronic message board” on an existing billboard.⁴ A zoning adjustment hearing officer initially considered the application and approved the billboard subject to several conditions, including a maximum brightness level, a minimum display time of eight seconds for each image, extinguishment of all illumination from 11:00 p.m. until sunrise, and a prohibition against any animation or any “flashing, blinking, or moving lights.”

¶ 3 Scenic appealed the hearing officer's decision to the Board, asserting in part that the billboard would use “intermittent light” in violation of the AHBA. At the hearing before the Board, Scenic's representatives presented testimony outlining their opposition to the use permit for the reasons previously addressed in their appeal letter and accompanying exhibits. American Outdoor's representative responded that the billboard's changing light display was nothing more than a “change of copy” and that a letter from the Arizona Department of Transportation (“ADOT”) to the City's zoning administrator indicated ADOT's approval of the proposed use. American Outdoor also referenced a favorable ruling by an administrative law judge (“ALJ”) in an ADOT enforcement action and a Federal Highway Administration (“FHWA”) guidance memorandum that purportedly approved electronic billboards.

¶ 4 Following the hearing, the Board upheld the hearing officer's decision to grant the permit, finding that the billboard would “be in compliance with all provisions of the [city] ordinance and other laws.” Scenic then petitioned for special action relief in the superior court pursuant to A.R.S. § 9–462.06(K) (2008), naming the Board and American Outdoor (collectively “American Outdoor”) as defendants. Scenic alleged that the Board's decision violated the AHBA and therefore the Board acted in excess of its authority. American Outdoor moved to dismiss for lack of standing. Scenic's subsequent motion to amend the complaint was unopposed. After Scenic filed its amended complaint, American Outdoor again moved to dismiss for lack of standing. The court denied the motion, but subsequently denied the relief Scenic requested. Scenic appealed and American Outdoor cross-appealed the court's ruling on standing.

DISCUSSION ⁵

I. Scenic Qualifies as a “Person Aggrieved” Under the Municipal Board of Adjustment Statute.

¶ 5 American Outdoor asserts that Scenic's members are not “aggrieved” by the Board's decision, and that if individual members do not have standing, Scenic cannot sue on their behalf.⁶ In reviewing a trial court's denial of a motion to dismiss, “we consider the facts alleged in the complaint to be true ... and determine whether the complaint, construed in a light most favorable to the plaintiff, sufficiently sets forth a valid claim.” Douglas v. Governing Bd. of the Window Rock Consol. Sch. Dist. No. 8, 206 Ariz. 344, 346, ¶ 4, 78 P.3d 1065, 1067 (App.2003) (internal quotations and citations omitted); see also Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.”).

¶ 6 In its amended complaint, Scenic alleged as follows: (1) its members use, and intend to continue using, the streets and highways within view of the billboard and the billboard affects their aesthetic enjoyment; (2) the billboard creates an increased safety risk to its members by distracting them and other drivers on the road and thereby increases the risk of traffic accidents; and (3) its members face longer drive times and increased fuel consumption if they choose to alter their routes to avoid the billboard. ⁷ American Outdoor contends that these allegations are conclusory and thus “not entitled to be accepted as true.” Although broadly stated, Scenic's amended complaint does include material factual allegations relating to the harm its members have suffered; therefore, we presume the allegations are true. Cf. Aldabbagh v. Ariz. Dept. of Liquor Licenses and Control, 162 Ariz. 415, 417, 783 P.2d 1207, 1209 (App.1989) (When reviewing a motion to dismiss, “the well-pleaded material allegations of the complaint are taken as admitted, but conclusions of law or unwarranted deductions of fact are not.”).

¶ 7 If a statute authorizes judicial review of an administrative decision, deciding whether a plaintiff has standing “must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.” Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The pertinent statute here is A.R.S. § 9–462.06(K), which provides that a “person aggrieved” by a decision of the Board may file a special action in superior court seeking review of the decision. The statute provides further that a “taxpayer, officer or department of the municipality affected by a decision” of the Board also may seek judicial review. Thus, Scenic must demonstrate that under those provisions at least one of its members is “aggrieved” by the decision of the Board, which is an issue we review de novo. See Armory Park Neighborhood Ass'n v. Episcopal Cmty. Servs., 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985) (noting that representational standing may be based on members of the organization having “standing to sue in their own right”); Center Bay Gardens v. City of Tempe, 214 Ariz. 353, 356, ¶ 15, 153 P.3d 374, 377 (App.2007) (“Unless there are fact issues that require resolution, whether a party has standing to sue is a question of law, which we review de novo.”). Additionally, this type of statute is “remedial and must be construed liberally to promote the ends of justice.” See City of Scottsdale v. McDowell Mountain Irr. & Drainage Dist., 107 Ariz. 117, 121, 483 P.2d 532, 536 (1971) (considering whether appellants qualified as “any person affected” under A.R.S. § 45–1522, which provides a judicial remedy for challenging the organization of an irrigation district).

¶ 8 No prior reported case has squarely addressed the meaning of “person aggrieved” within the context of § 9–462.06(K), particularly under the circumstances presented here, where the plaintiff seeks judicial review of the Board's approval of a hearing officer's grant of a use permit for operation of an electronic billboard. Our legislature has given the Board the duty to hear and decide appeals from decisions made by the zoning administrator, such as the grant or denial of variances, the issuance of use permits, or the interpretation of a zoning ordinance. Austin Shea (Arizona) 7th St. & Van Buren, L.L.C. v. City of Phoenix, 213 Ariz. 385, 390, ¶ 21, 142 P.3d 693, 698 (App.2006) (citing A.R.S. § 9–462.06(C)). In resolving matters before it, the Board may receive evidence and take testimony from witnesses who are placed under oath. Id. Thus, the Board acts in a “quasi-judicial” capacity. Id. (citing Lane v. City of Phoenix, 169 Ariz. 37, 41, 816 P.2d 934, 938 (App.1991)). Additionally, “[t]he Board must act in accordance with the law or it is without jurisdiction.” Arkules v. Bd. of Adjustment, 151 Ariz. 438, 440, 728 P.2d 657, 659 (App.1986).

¶ 9 The statute does not define “person aggrieved,” but we are able to discern from its use in § 9–462.06(K) that the legislature intended to permit much broader standing in this context than in other proceedings.⁸ When the legislature has intended to...