Transamerica Title Ins. Co. v. City of Tucson

• Decision Date: 09 April 1975
• Docket Number: A,No. 2,No. 27,215,CA-CIV,27,215,2
• Citation: 533 P.2d 693,23 Ariz.App. 385
• Parties: TRANSAMERICA TITLE INSURANCE COMPANY, a corporation, as Trustee under Trustppellant, v. The CITY OF TUCSON, a Municipal Corporation, et al., Appellees. 1667.
• Court: Arizona Court of Appeals

Page 693

533 P.2d 693

23 Ariz.App. 385

TRANSAMERICA TITLE INSURANCE COMPANY, a corporation, as Trustee under Trust No. 27,215, Appellant, v. The CITY OF TUCSON, a Municipal Corporation, et al., Appellees.

No. 2 CA-CIV 1667.

Court of Appeals of Arizona, Division 2.

April 9, 1975.

Rehearing Denied May 7, 1975.

Schorr & Karp, P.C., by S. Lenwood Schorr, Tucson, for appellant.

James D. Webb, Tucson City Atty., by Enos P. Schaffer, Deputy City Atty., Tucson, for appellees.

OPINION

HOWARD, Chief Judge.

As a condition of rezoning, can a municipality require the landowner to dedicate part of his land for right-of-way purposes? That is the main issue to be decided by this appeal.

Appellant is the owner of vacant land located at the southeast quadrant of the intersection of Silverbell Road and Speedway Boulevard in Tucson, Arizona. This property consists of approximately 196,000 square feet. The northern three-fourths of the property is zoned B--1 which permits commercial usage. The southern one-fourth of the property is zoned R--1 for residential use. Appellant requested and was granted a change of zoning on the southern quarter from R--1 to B--1. However, the rezoning granted requires, as conditions precedent, that appellant deed to the City a 75-foot one-half right-of-way for Speedway for the entire northerly portion of the land already zoned B--1 and a 60-foot one-half right-of-way for Silverbell Road on the westerly side of all the property. There are other conditions designed to buffer the subject property from existing residential property.

In granting the conditional zoning, the Mayor and Council found that the rezoning would permit a 'greater impact on the traffic' on Speedway and Silverbell and:

'4. That the governing body would be discriminating as to propety owners throughout the city who as a condition to rezoning which increases traffic demands and friction are historically required to dedicate additional right-of-way way to meet the standard widths of the Tucson Master Plan for major thoroughfares.

5. That, in particular, the governing body would be discriminatory and unfair to the property owners directly across Speedway who had a parallel fact situation. . . .'

Both before the Mayor and Council and in the trial below, appellant presented two plans, Plan S and Plan S--1. Plan S shows how the property can be utilized as a shopping center under the present zoning. In Plan S the improvements are located toward the center of the property with parking spaces located in the front, rear and sides of the improvements. Under Plan S the area sought to be rezoned is used for parking, a permissible R--1 use. Plan S provides 274 parking spaces and has one entry and exit for ingress and egress to Speedway and one entry and exit for ingress and egress to Silverbell.

Plan S--1 shows the development of the property after rezoning. The main difference between Plan S and Plan S--1 is that under S--1 the improvements are located to the rear of the property on the land presently zoned R--1 and the parking is mostly to the front of the improvements. Plan S--1 provides for one entry and exit on Speedway and one entry and exit on Silverbell. It has twenty less parking spaces than Plan S.

A Rezoning Development Plan is required by Section D5 of the Rules and Regulations of the City Planning and Zoning Commission. Section D7 provides that final plans for building permits shall substantially comply with the approved tentative plan.

Appellant did not object to the conditions designed for buffering or the dedication of the one-half right-of-way for Silverbell Road along the property adjacent to Silverbell which was being rezoned. It did object, however, to the other dedication demanded and filed an action for declaratory judgment in superior court.

The trial court made findings of fact and conclusions of law and entered its judgment in favor of appellees. Among the court's findings were:

'13. The right-of-way dedications required in this case was reasonably related to the proposed use under the rezoning.

14. The proposed use under the rezoning will increase traffic on the streets bordering the plaintiff's property.

15. The proposed use of the property under the rezoning will increase traffic turbulence on the streets.'

Appellant has presented nine questions for review, six of which in essence relate to the reasonableness of the conditions. The remaining questions concern the admissibility of certain evidence and the sufficiency of the evidence.

At the outset it should be noted that a zoning ordinance is cloaked with a presumption of validity. City of Phoenix v. Price, 18 Ariz.App. 144, 500 P.2d 1132 (1972); Peabody v. City of Phoenix, 14 Ariz.App. 576, 485 P.2d 565 (1971). Further, the appellate court must accept the trial court's findings unless they are demonstrated to be clearly erroneous. Olson v. State, 12 Ariz.App. 105, 467 P.2d 945 (1970). When the reviewing court is left with a definite and firm conviction that the trial court has made a mistake in its findings of fact and such findings are clearly erroneous, it may set them aside. Park Central Develop. Co. v. Roberts Dry Goods, Inc., 11 Ariz.App. 58, 461 P.2d 702 (1969).

The City of Tucson in the exercise of its police power may do those acts which promote public convenience or general prosperity, as well as public safety, health, and morals. The police power is based on the necessity to safeguard the public interest. Its concept is not static, but dynamic, changing and accommodating to the complexities of modern society.

Because of the nature of the police power, its exercise frees a governmental body from liability for compensation for resulting private losses. Montgomery v. Health Dept., 161 Cal.App.2d 584, 326 P.2d 886 (1958); 6 E. McQuillin, The Law of Municipal Corporation § 24.06 (1969). However, exercise of the police power does not include the power of eminent domain. Article 2, § 17 of the Constitution of Arizona, A.R.S., provides:

'* * * No private property shall be taken . . . for public or private use without just compensation having first been made, or paid into court for the owner . . ..'

The police power cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property. House v. Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950, 952 (1944). An arbitrary, conceived exaction will be nullified as a disguised attempt to take private property for public use without resort to eminent domain. Mid-way Cabinet Fixture Mfg. v. County of San Joaquin, 257 Cal.App.2d 181, 65 Cal.Rptr. 37 (1967). A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

The power of a municipality to impose conditions on zoning or rezoning has been upheld. Ayres v. City Council, 34 Cal.2d 31, 207 P.2d 1 (1949); Scrutton v. County of Sacramento, 275 Cal.App.2d 412, 79 Cal.Rptr. 872 (1969). We agree with these cases. The power to impose conditions on rezoning is an exercise of the police power and such conditions are valid as long as the conditions are reasonably conceived. The fulfillment of public needs emanating from the proposed land use is the sine qua non of the exaction's reasonableness. Scrutton v. County of Sacramento, supra.

In Ayres, approval of a subdivision was conditioned on dedication of land for street-widening and a planting strip. There was evidence that the subdivision would create conditions which required the widening, the restriction of ingress and egress, and the screening of lot owners from traffic noise and fumes emanating from the subdivision.

In Scrutton v. County of Sacramento, supra, the landowner sought to have her property rezoned from agricultural to multiple family residential to permit its development for residential apartment units. Among the conditions imposed by the county was the requirement that Mrs. Scrutton dedicate a 27-foot right of way for widening a street called Foster Way which bordered the east side of her property and that she pave Foster Way at her own expense (amounting to $13,000). Mrs. Scrutton objected to dedicating and paving the Foster Way frontage since the sole vehicular access to her planned apartment development was by means of the street bordering the northern part of her property. The county's sole justification for the Foster Way requirements was that they would benefit Mrs. Scrutton's property. Summary judgment was granted in the county's favor. In reversing the summary judgment, the court commented on the affidavits filed by the county:

'They contained no showing that Mrs. Scrutton's apartment project would generate traffic or other conditions on Foster Way which would reasonably necessitate widening and improving the street at her sole expense.' 79 Cal.Rptr. at 880

All the cases which we have cited are relied upon by the city in defending the judgment of the trial court.

A planning session was held in 1971 prior to the public rezoning hearing. Mr. Lim, Director of Planning for the city gave the following reason for the requested dedications:

'Mr. Chairman, the Commission requested from Staff the Speedway at Silverbell traffic. In consultation with the Traffic Engineer the latest average daily count at Speedway and Silverbell was on the order of 9,691 cars per day. On Speedway itself, it is on the order of 2,429 to about 2,972. On any thoroughfare, whether it be major or minor, when you get to the position of having 9,000 cars average daily traffic, it is to the best interest of the community that the street be widened beyond the thirty foot street where it is now, and if possible go to at least four lanes. Once the average daily traffic gets above 10,000 and in the order of 12,000 to 14,000 and on up, then one starts...