Schwarz v. City of Glendale

• Decision Date: 16 December 1997
• Docket Number: CA-CV,No. 1,1
• Citation: 190 Ariz. 508,950 P.2d 167
• Parties: , 258 Ariz. Adv. Rep. 23 Gerard SCHWARZ, also known as Jerry Schwarz, and Diane Schwarz, husband and wife, Plaintiffs-Appellants, v. CITY OF GLENDALE, a municipal corporation; and Samaritan Health Systems, an Arizona nonprofit corporation, Defendants-Appellees. 97-0073.
• Court: Arizona Court of Appeals

Page 167

950 P.2d 167

190 Ariz. 508, 258 Ariz. Adv. Rep. 23

Gerard SCHWARZ, also known as Jerry Schwarz, and Diane Schwarz, husband and wife, Plaintiffs-Appellants, v. CITY OF GLENDALE, a municipal corporation; and Samaritan Health Systems, an Arizona nonprofit corporation, Defendants-Appellees.

No. 1 CA-CV 97-0073.

Court of Appeals of Arizona,

Division 1, Department D.

Dec. 16, 1997.

Dushoff & McCall, P.C. by Jay Dushoff, Denise J. Henslee, Phoenix, for Plaintiffs-Appellants.

Peter Van Haren, Office of the City Attorney by David A. Pennartz, Deputy City Attorney, Glendale, for Defendant-Appellee, City of Glendale.

Beus, Gilbert & Morrill, P.L.L.C. by Martin A. Aronson, Christine R. Taradash, Phoenix, for Defendant-Appellee Samaritan Health Systems.

OPINION

RYAN, Judge.

Under Arizona statute, when twenty percent or more of the property owners within 150 feet of property included in a proposed zoning change protest the proposed rezoning in writing, the proposed change cannot become effective unless approved by a super-majority, three-fourths, vote of the city council. Ariz.Rev.Stat. Ann. ("A.R.S.") § 9-462.04(G). We must decide whether a buffer area created by the property owner seeking rezoning prevents the statute from being triggered. The trial court found that it does on the facts of this case. We agree and thus affirm.

FACTS AND PROCEDURAL HISTORY

In May 1992 Samaritan purchased a vacant 15.1 acre parcel of land in Glendale, Arizona, bounded on the north by Eugie Avenue and on the east by 56th Avenue. Across Eugie Avenue to the north of the property was Thunderbird Samaritan Medical Center. Across 56th Avenue to the east of the property was a residential neighborhood. Samaritan purchased the parcel hoping to build a 98,000 square foot medical office building on a portion of it.

Previously the City of Glendale ("City") had adopted a general plan setting forth its statement of land development policies as required under state law. See A.R.S. §§ 9-461 to 9-461.12. At the time Samaritan purchased the property, it was zoned R-3 and R-4 for multi-family residential use under the City's general plan.

Samaritan sought changes to the general plan and existing zoning so that it could build the office building on the western 11.76 acres of the property ("Office Property"). The remaining 3.34 acres, which Samaritan did not plan to use in the office building project, were configured to create a 160-foot wide area on the eastern end of the parcel ("Buffer Zone"). This area would serve as a buffer between the Office Property and the residential properties east of 56th Avenue and could be used by residents.

On November 6, 1992, Samaritan filed three applications with the City's Planning and Zoning Commission ("Commission"): (1) No. GP-92-08 ("First Application") to amend the general plan by re-designating the entire parcel from multi-family residential to general office; (2) No. Z-92-23 ("Second Application") to rezone the 11.76 acres making up the Office Property to C-O (commercial office); and (3) No. Z-92-24 ("Third Application") to rezone the 3.34 acres making up the Buffer Zone to A-1 (agricultural residence) because Samaritan intended to create an open, landscaped area throughout the Buffer Zone. Before any public hearings, Samaritan withdrew the Third Application and proceeded only with the first two applications.

In March 1993 the Commission held public hearings on the First and Second Applications. Thereafter, the Commission recommended that the Glendale City Council approve both applications. The recommended approval of the Second Application was subject to thirteen stipulations. The stipulations required certain landscaping improvements in the Buffer Zone and the grant of a public easement through the Buffer Zone allowing access by residents of the area. Samaritan voluntarily entered into these stipulations; the Commission had not imposed them as conditions to rezoning.

On June 28, 1993, a neighborhood coalition filed a petition requesting that the Council's vote on the Second Application be subject to the super-majority, three-fourths vote requirement of A.R.S. section 9-462.04(G). ¹ Twenty-six individuals, constituting over eighty percent of the property owners located within 150 feet of the Buffer Zone, but not within 150 feet of the Office Property, signed the petition. None of the complaining property owners resided within 150 feet of the Office Property.

On June 29, 1993, the Council held a public hearing on the first two applications. Only six of the seven members of the Council attended and voted. The Council approved both applications by a majority vote of four to two, refusing the request of the protest group to apply the three-fourths vote requirement of A.R.S. section 9-462.04(G) to the Second Application. ²

Appellants, who were among the twenty-six neighbors requesting the super-majority vote, then filed the complaint in this case. They sought judicial review of the Council's approval of the Second Application, asking to have the rezoning voided because it had not been approved by a three-fourths vote of the Council. The trial court found that the three-fourths requirement of A.R.S. section 9-462.04(G) was not triggered in this case. Appellants timely appealed, and we have jurisdiction under A.R.S. sections 12-913 and 12-2101(B). ³

DISCUSSION

The facts are undisputed. The sole issue is whether the super-majority vote requirement of A.R.S. section 9-462.04(G) was called into play for the rezoning of the Office Property. Because the interpretation and application of statutes involve the resolution of legal issues, we review such decisions de novo. Libra Group, Inc. v. State, 167 Ariz. 176, 179, 805 P.2d 409, 412 (App.1991).

Municipalities must strictly follow the statutory procedure to enact a zoning ordinance. A court must void a zoning ordinance enacted by procedures that do not substantially comply with the statutory requirements. Levitz v. State, 126 Ariz. 203, 205, 613 P.2d 1259, 1261 (1980); Manning v. Reilly, 2 Ariz.App. 310, 313, 408 P.2d 414, 417 (1965). Our supreme court held a zoning change void where, under the precursor to A.R.S. section 9-462.04(G), a super-majority vote of the zoning board members had been required, but the requirement had not been met. Hyland v. City of Mesa, 112 Ariz. 66, 67-68, 537 P.2d 936, 937-38 (1975). Samaritan and the City concede that if a super-majority vote was required to approve the rezoning of the Office Property, the rezoning was void because a super-majority vote was not obtained.

Under section 9-462.04(G), when twenty percent or more of the property owners within 150 feet of property included in a proposed zoning change protest the proposed rezoning in writing, the proposed change cannot become effective unless approved by three-fourths of the members of the body authorized to rule upon it. Here, appellants must overcome the fact that their property is not within 150 feet of the Office Property. Although appellants' property is within 150 feet of the entire parcel purchased by Samaritan, it is not within 150 feet of the Office Property for which Samaritan sought rezoning. Samaritan created the 160-foot wide Buffer Zone area to separate the Office Property from appellants' residences. ⁴

The majority of state courts that have considered similar factual situations have concluded that self-created buffer zones prevent the application of super-majority voting statutes. See, e.g., Pfaff v. City of Lakewood, 712 P.2d 1041, 1043 (Colo.App.1985); Midway Protective League v. City of Dallas, 552 S.W.2d 170, 174 (Tex.Ct.App.1977); St. Bede's Episcopal Church v. City of Santa Fe, 85 N.M. 109, 509 P.2d 876, 877 (1973); Rodgers v. Village of Menomonee Falls, 55 Wis.2d 563, 201 N.W.2d 29, 33 (1972); Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352, 364-66 (1971). These courts have consistently held that an applicant for a zoning change may avoid the necessity for a super-majority vote by creating a buffer zone between the property to be rezoned and the lands of adjacent property owners. We adopt the majority position. ⁵

Appellants acknowledge that creation of a buffer zone to defeat statutory requirements such as those found in A.R.S. section 9-462.04(G), even when done solely for that purpose, is not considered an illegal subterfuge. They point out, however, that some of the above-mentioned courts recognize that certain circumstances might cause the creation of a buffer zone to be an illegal subterfuge.

For example, Herrington held that if the rezoned property and the buffer zone property are so mutually dependent that neither property would be suitable for use without the other, the super-majority statute is triggered. 295 N.E.2d at 732-33. Appellants also point to language in Pfaff indicating that the creation of a buffer zone is illusory if the buffer zone cannot be used in a manner consistent with the uses permitted under the governing zoning ordinance. 712 P.2d at 1043. They argue that for one or both of these reasons, the Buffer Zone created in this case is illusory and should not be allowed to prevent the application of the super-majority voting requirement. We disagree.

We agree that the creation of the Buffer Zone could not prevent the application of the...