State v. Trachtman

• Decision Date: 31 July 1997
• Docket Number: No. 1,CA-CR,1
• Citation: 947 P.2d 905,190 Ariz. 331
• Parties: 249 Ariz. Adv. Rep. 25 STATE of Arizona, Appellee, v. Alan TRACHTMAN, Appellant. 96-0628.
• Court: Arizona Court of Appeals

Page 905

947 P.2d 905

249 Ariz. Adv. Rep. 25

STATE of Arizona, Appellee, v. Alan TRACHTMAN, Appellant.

No. 1 CA-CR 96-0628.

Court of Appeals of Arizona,

Division 1, Department E.

July 31, 1997.

Review Denied Dec. 16, 1997.

Schmitt, Fisher & Herrod by Michael J. Herrod, Phoenix, for Appellee.

Bryan Cave L.L.P. by Steven M. Dichter and Christine M. Regas, Phoenix, for Appellant.

OPINION

KLEINSCHMIDT, Judge.

Alan Trachtman appeals his convictions for violations of two criminal provisions of the Carefree Town Code relating to zoning. He asserts that the two provisions, one forbidding operating a business enterprise at his residence and the other allowing only those uses which are accessory to residential purposes, are unconstitutionally vague. We affirm both convictions.

FACTS

In May 1994, Trachtman was charged with six counts of criminal conduct relating to the use of his residence. The municipal court dismissed one count prior to trial, directed a verdict for Trachtman on three counts after the State rested its case, and found him guilty of (1) violating sections 702 and 202(38) of the Carefree Planning and Zoning Ordinance by operating a business enterprise on his property that did not qualify as a permissible "home occupation," and (2) violating section 702 of the ordinance by engaging in a prohibited use of his property by renovating, repairing and/or storing motor vehicles "not customary or incidental to an allowed use of such property." The court imposed a fine of $2,500 for each count and placed Trachtman on unsupervised probation for one year.

On appeal, the Maricopa County Superior Court affirmed the convictions. Pursuant to Arizona Revised Statutes Annotated (A.R.S.) section 22-375 (1990), Trachtman appealed to this court. See also Rule 13(b), Super.Ct.R.App.P.--Crim. His only arguments on appeal are that the definitions of "home occupation" and "accessory use" in Carefree's Planning and Zoning Ordinance are unconstitutionally vague.

Our jurisdiction in this appeal from a municipal court conviction is limited solely to a review of the facial validity of those two provisions of the Carefree ordinance and does not include an examination of whether those provisions were constitutionally applied in Trachtman's case. See State v. Martin, 174 Ariz. 118, 121, 847 P.2d 619, 622 (App.1992). We are required, however, to determine if Trachtman has standing to raise his claim of unconstitutionality. See Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 349, 842 P.2d 1355, 1362 (App.1992) (initial question in any constitutional challenge to a statute is whether the party has standing to assert the claim).

TRACHTMAN DOES NOT HAVE STANDING TO CHALLENGE THE HOME OCCUPATION ORDINANCE

Trachtman was charged criminally with violating section 702 of the zoning ordinance by engaging in a business enterprise on R1-35 property. Under section 702, R1-35 property may be used only for (1) one single-family dwelling per lot, (2) the display of certain signs specifically described in the ordinance, (3) home occupations, (4) fences or free-standing walls satisfying the specific requirements of the ordinance, and (5) "[a]ccessory buildings and uses customarily incidental to the above uses." See Town of Carefree, Ariz., Code art. 12-1, Planning and Zoning Ordinance § 402 (1992) (cross-referenced in §§ 502 and 702).

The complaint alleged that Trachtman was operating a business enterprise on his property. The business, Carefree Classics, Ltd., specialized in the repair and restoration of classic automobiles. Trachtman insisted that he was never engaged in a business enterprise, but rather that his repair and renovation of classic cars was simply a hobby. He testified at trial that he did not intend to make a profit from his activities and that he formed Carefree Classics solely to permit him to obtain business discounts from automotive parts suppliers.

The municipal court rejected Trachtman's characterization of his activities and set forth extensive factual findings in its verdict to support its conclusion, not in issue here, that Trachtman was, in fact, engaged in a business enterprise. Because that business did not qualify as a permissible "home occupation," the municipal court found Trachtman guilty of this charge.

Section 202(38) of the Carefree Planning and Zoning Ordinance defines a "home occupation" as:

Any occupation or profession customarily conducted entirely within a dwelling and carried on by a member of the family residing therein, and which occupation or profession is clearly incidental and subordinate to the use of the dwelling for dwelling purposes and does not change the character thereof, and in connection with which there are no employees other than a member of the immediate family residing in the dwelling, and no mechanical equipment except for that which is customarily used for domestic, hobby, or household purposes. Home occupation includes the use of a dwelling by physician, surgeon, dentist, lawyer, clergyman, or other professional person for consultation or emergency treatment, but not for the general practice of his profession. Home occupation does not include clinic, hospital, barber shop, beauty parlor, animal hospital, advertising or public relations agency, interior decorator's office or similar use. No noise, nuisance, sign or other display shall indicate from the exterior of the building or property that it is being utilized in whole or in part for any purpose other than that of a dwelling, nor shall such use generate pedestrian or vehicular traffic beyond that normal to the district in which it is located. A carport or garage may not be used for home occupations.

(Emphasis added.)

Trachtman argues that section 202(38) is unconstitutionally vague because "it fails to define what conduct is prohibited." Specifically, he asserts that the provision is void for vagueness because it does not define "occupation" and does not distinguish an "occupation" from a "hobby." According to him, the provision fails to give Carefree residents adequate notice of which "home occupations" are permitted and which are prohibited, and is therefore prone to arbitrary enforcement by city officials.

Before we may consider Trachtman's challenge to the constitutionality of the ordinance, however, we must first determine whether he has standing to raise his claim. See Church, 173 Ariz. at 349, 842 P.2d at 1362. "In order to possess standing to assert a constitutional challenge, an individual must himself have suffered 'some threatened or actual injury resulting from the putatively illegal action.' " State v. Herrera, 121 Ariz. 12, 15-16, 588 P.2d 305, 308-09 (1978) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). In this case, the "putatively illegal action" is Carefree's enactment and enforcement of an impermissibly vague criminal ordinance.

Even if an ordinance or statute may be vague in some particulars, a person "to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); see also New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3359-60, 73 L.Ed.2d 1113 (1982) ("The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court."); State v. McLamb, 188 Ariz. 1, 6, 932 P.2d 266, 271 (App.1996) (" 'A defendant whose conduct is clearly proscribed by the core of the statute has no standing to attack the statute.' ") (quoting State v. Tocco, 156 Ariz. 116, 119-20, 750 P.2d 874, 877-78 (1988)); State v. Carruth, 132 Ariz. 368, 370, 645 P.2d 1282, 1284 (App.1982) ("Unless the challenged legislation, by its terms, regulates the exercise of first amendment rights, its constitutionality may not be challenged on the ground that it might apply to parties not before the court.").

The section defining permissible home occupations clearly forbids the business Trachtman was conducting. Section 202(38) states that a home occupation is an "occupation or profession customarily conducted entirely within a dwelling" and "[a] carport or garage may not be used for home occupations." "Dwelling" is defined in section 202(21) as "[a] building or portion thereof designed or used exclusively for residential occupancy." It is clear from the ordinance that a permissible home occupation must be of a type that can be carried on inside the home or residential building. Trachtman's business was conducted in his garage and driveway. Because the ordinance clearly prohibited his conduct, Trachtman does not have standing to challenge it for vagueness.

THE ACCESSORY USE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE

Count II of the complaint charged Trachtman with engaging in a prohibited use of R1-35 zoned property by renovating, repairing and/or storing "motor vehicles not customary or incidental to an allowed use of such property." The ordinance allows R1-35 property to be used for accessory uses customarily incidental to the use of a single-family residence. See Carefree Planning and Zoning Ordinance § 402. Section 202(90) defines "accessory use" as "[a] use which is customarily incidental and subordinate to the principal use of a lot or a building, including bona fide servant and caretaker quarters, and located on the same lot therewith." The ordinance further explains that private swimming pools, tennis courts and satellite receiving earth stations are included as uses customarily incidental to permissible uses of R1-35 property. § 402(6)(a)-(c). These are examples, and do not purport to cover all accessory uses.

Trachtman's conviction on Count II turned on whether his activities constituted a permissible "accessory use" of his property. The municipal court found "that the storage, [renovation, and repair] of 12 to 16...