Transamerica Title Insurance Co. v. City of Tucson , 23 Ariz. App. 385 ( 1975 )

HATHAWAY, Judge

(dissenting).

In my view the evidence supports the trial court’s conclusion that the conditions attached to the rezoning request were reasonable.

There is no doubt that a municipality may require, as a condition to its granting a rezoning application, dedication of a street. A.R.S. § 9-462.01 (A) (7) ,¹

The testimony disclosed that the shopping center contemplated on the property if rezoned would generate more traffic, being a more attractive development. The exhibits depicting the two plans in themselves seem to support the trial court’s conclusions. The new Plan, S-l, opens the entire parking area to both Speedway and Silverbell, concentrates all traffic on the northside and as otherwise borne out in the evidence, presents a more attractive shopping center.

As observed in Scrutton v. County of Sacramento, cited by the majority, reasonable conditions may be imposed upon the landowner’s proposal:

“A grant of public privilege may not be conditioned upon the deprivation of constitutional protections. (Bagley v. Washington Township Hosp. Dist., 65 Cal.2d 499, 504-505, 55 Cal.Rptr. 401, 421 P.2d 409; Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 545-547, 171 P.2d 885.) 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.’ [Citation omitted.]

“Although ‘reasonableness’ has been postulated as the hallmark of validity, a more precise standard is available. An utterance in Ayres v. City Council, supra, 34 Cal.2d at page 42, 207 P.2d at page 8 supplies it: ‘[W]here it is a condition reasonably related to increased traffic and other needs of the proposed [land use] it is voluntary in theory and not contrary to constitutional concepts.’ The Ayres’ formulation may be generalized by the statement that conditions imposed on the grant of land use applications are valid if reasonably conceived to fulfill public needs emanating from the landowner’s proposed use.” 79 Cal.Rptr. at 879.

Applying the Ayres’ formulation, as generalized in Scrutton, it would appear that the conditions imposed upon the granting of rezoning are reasonably conceived to fulfill increased needs emanating from the landowner’s proposed use. I would affirm.

1 . That statute reads in part:

Ҥ 9-462.01. Zoning regulations

A. Pursuant to the provisions of this article, the legislative body of any municipality by ordinance may:

* * * * *

7. Require as a condition of re-zoning public dedication of rights-of-way, as streets, alleys, public ways, drainage and public utilities as are reasonably required by or related to the effect of the re-zoning.”