Jd's River v. maricopa/lcr ( 2023 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JD'S RIVER BOTTOM, LLC, Plaintiff/Appellant,
v.
MARICOPA COUNTY, et al., Defendants/Appellees.
__________________________________
LCR 723-725 SCOTTSDALE LLC, Intervenor/Appellee.
No. 1 CA-CV 22-0240
FILED 5-30-2023
Appeal from the Superior Court in Maricopa County
No. CV2020-002438
LC2020-000074-001
The Honorable Tracey Westerhausen, Judge
AFFIRMED
COUNSEL
Wilenchik & Bartness, PC, Phoenix
By Dennis I. Wilenchik, John D. Wilenchik, Ross P. Meyer
Counsel for Plaintiff/Appellant
Maricopa County Attorney’s Office, Phoenix
By Wayne J. Peck, Sherle R. Flaggman, Joseph Branco, Sean Moore
Counsel for Defendants/Appellees
Bergin Frakes Smalley & Oberholtzer, PLLC, Phoenix
By Kenneth M. Frakes, Daniel Goldschmidt
Counsel for Intervenor/Appellee
Signature Law Group, PLLC, Prescott
By Henry E. Whitmer
Counsel for Amicus Curiae
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Chief Judge Kent E. Cattani joined.
P A T O N, Judge:
¶1 JD’s River Bottom, LLC (“JD”) appeals the superior court’s
grant of summary judgment in favor of Maricopa County and the Maricopa
County Board of Adjustment (“Board”) and the denial of JD’s summary
judgment motion. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 JD is a business entity that seeks to open and operate a
medical marijuana dispensary in Maricopa County at a site that is in close
proximity to three protected uses: (1) 61 feet from an adult-oriented
business, (2) 1,325 feet from a public park, and (3) 137 feet from another
property that previously received a conditional zoning variance in June
2018 for a medical marijuana dispensary, owned by LCR 723-725 Scottsdale,
LLC (“Sunday Goods”). The zoning ordinance for the unincorporated area
of Maricopa County (“Ordinance”) applicable to the site would ordinarily
prohibit JD’s proposed dispensary operation due to its proximity to these
protected uses.
¶3 County boards of adjustment may grant variances where a
party shows that “owing to peculiar conditions, a strict interpretation [of
the zoning ordinance] would work an unnecessary hardship and if in
granting the variance the general intent and purposes of the zoning
ordinance will be preserved.” A.R.S. § 11-816(B)(2).
¶4 JD applied to the Board for relief from the requirements of the
Ordinance on March 18, 2019. After learning that Board staff intended to
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recommend denial of the variance request, JD filed a special action in the
superior court challenging the validity of the Sunday Goods variance,
which the court dismissed for lack of standing because JD had not yet
presented any variance request to the Board.
¶5 JD then presented its request to the Board. Following a
hearing and public comment, the Board denied JD’s variance requests. JD
appealed to the superior court pursuant to Section 11-816(D), challenging
the denial of the park and adult-business variances. It also filed a separate
special action arguing that because Sunday Goods had not complied with
the conditions of its variance JD should not be required to get a dispensary
distance variance.
¶6 The superior court consolidated the two matters, and both
parties moved for summary judgment. The court granted summary
judgment in favor of the Board. It found that the property JD wanted to
operate its dispensary on did not contain any peculiar conditions justifying
park and adult-business variances. Specifically, it found that (1) the
characteristics of the property JD identified as peculiar were not inherent to
the property (i.e., lot size) and (2) because Sunday Goods requested a
variance on identical grounds, those characteristics could not be peculiar.
¶7 The superior court also found that the Board had no statutory
authority to impose conditions on a variance. Consequently, the Sunday
Goods variance remained in effect whether Sunday Goods complied with
the conditions set by the Board or not. Therefore, JD still needed a variance
for the dispensary distance regulation. The court rejected several of the
County’s arguments, including its suggestion that JD needed to be eligible
to operate a medical marijuana dispensary to apply for a variance.
¶8 JD timely appealed. We have jurisdiction pursuant to Article
6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) Sections 12-2101(A)(1) and -120.21(A)(1).
DISCUSSION
¶9 We review a grant of summary judgment de novo. Glazer v.
State, 237 Ariz. 160, 167, ¶ 29 (2015). Summary judgment is appropriate if
the facts produced in support of a claim or defense “have so little probative
value, given the quantum of evidence required, that reasonable people
could not agree with the conclusion advanced by the proponent of the claim
or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). JD raises two
issues on appeal: (1) whether it presented a genuine dispute of material fact
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as to peculiar conditions warranting a variance and (2) whether Sunday
Goods’ variance was valid.
I. The superior court did not err by finding JD failed to
demonstrate “peculiar conditions” presenting an “unnecessary
hardship.”
¶10 JD argues that “whether a peculiar condition exists on a
property” is inherently a factual question that must be decided by a finder
of fact. It may be true that whether a condition of any kind is present on a
property is a question of fact. But whether a condition is properly defined
as “peculiar,” or more generally falls within the scope of Section 11-816(B),
is inherently a legal question because it involves the interpretation and
application of a statute. See Cypress on Sunland Homeowners Ass’n v.
Orlandini, 227 Ariz. 288, 296, ¶ 30 (App. 2011).
¶11 JD argues that four existing conditions present a genuine
dispute of material fact: (1) the property’s “size, location[,] surroundings”
and zoning; (2) the property’s location in the Tempe North Community
Health Analysis Area (“CHAA”); (3) the property’s location on a “county
island” distant from “more protected uses;” and (4) its proximity to the
Sunday Goods variance approval.
¶12 No Arizona cases define “peculiar condition,” but we find the
out-of-state cases the County cited in its briefing persuasive. A peculiar
condition is one that arises “from the physical conditions of the land itself
which distinguish it from other land in the general area.” City and Borough
of Juneau v. Thibodeau, 595 P.2d 626, 635 (Alaska 1979) (disavowed on other
grounds by State v. Alex, 646 P.2d 203, 208, n. 4 (Alaska 1982)). To be eligible
for a variance, a property’s peculiar condition must cause it to “differ[]
substantially and in relevant aspects from other parcels in the zone . . . .”
Topanga Assn. for a Scenic Cmty. v. Cnty. of Los Angeles, 522 P.2d 12, 22 (Cal.
1974).
¶13 Each of the purported “peculiar conditions” JD cites would
swallow the rule that they be peculiar to the property in question. And the
County’s argument that the property must have completely unique
conditions is too broad.
¶14 The location of the property in an unincorporated area on a
“county island,” its proximity to Sunday Goods, and its location in the
Tempe North CHAA are all conditions that, more than merely affecting the
Sunday Goods location, affect all nearby properties. See Thibodeau, 595 P.2d
at 636 (“[W]here the ordinance equally affects all property in the same
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zoning classification, relief from [the ordinance] must come from . . . an
amendment to the zoning code.”). By JD’s own definition, the application
of these laws cannot be peculiar to JD’s parcel. Because JD points us to
nothing that distinguishes its property from any other in the set of affected
properties, we find that it has not established a peculiar condition.
¶15 JD argues that the County is “trying to have it both ways”
because Sunday Goods was granted a Section 11-816(B) variance but JD was
not. JD, however, is not appealing (in this respect) the Sunday Goods
variance, so the question of whether Sunday Goods met the “peculiar
conditions” requirement under the statute is not before us. We find no
error.
¶16 Even if we were to assume a peculiar condition exists on JD’s
property, we agree with the County that JD failed to show unnecessary
hardship, which exists when “the land in question cannot yield [a]
reasonable return” absent the variance. See Santa Cruz Cnty. v. S. Ariz.
Christian Assembly, 22 Ariz.App. 507, 509 (1974); see also Ivancovich v. City of
Tucson Bd. of Adj., 22 Ariz.App. 530, 538 (1974). While perhaps more
difficult to use this particular zoned property without a variance, JD
concedes in its opening brief that the property can be used for other
industrial purposes. This concession on its own puts the property outside
the scope of Section 11-816(B). The superior court did not err.
II. Special action relief was not available for JD’s challenge of the
Sunday Goods variance in superior court.
¶17 JD separately argues that because Sunday Goods has not
complied with the conditions attached to its variance, the variance has
lapsed, and eliminated a variance that is required for Sunday Goods to
operate a dispensary. The superior court considered these arguments in
JD’s special action petition and rejected them.
¶18 But JD failed to exercise its statutory right to appeal the
Board’s decision to grant Sunday Goods’ variance or, more to the point, the
Board’s failure to revoke it after conditions were not met—a remedy that
was otherwise “plain, speedy, and adequate.” Ariz. R.P. Spec. Act. 1(a).
Section 11-816(D) provides that an appeal from a decision of the Board may
be filed in the superior court within 30 days of the decision by “any person
aggrieved in any manner.” And “when a statute creates a right and also
provides a complete and valid remedy for the right created, the remedy
thereby given is exclusive.” Valley Drive-In Theatre Corp. v. Super. Ct., 79
Ariz. 396, 400 (1955). Because JD contends it was aggrieved by the Sunday
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Goods variance, it was required to pursue repeal of the variance, and then
appeal any denial, to challenge the Board’s decision. It cannot challenge
the existence of the variance in an unrelated administrative appeal
concerning its own variance; the validity of the Sunday Goods variance was
not before the Board. See Land Dep’t v. O’Toole, 154 Ariz. 43, 47 (App. 1987)
(noting that declaratory relief is generally unavailable where “another
equally or more appropriate remedy is available.”). Special action
jurisdiction to the superior court is not available to circumvent a form of
statutory relief of which JD did not avail itself. Consequently, the superior
court lacked jurisdiction to consider the merits of that aspect of JD’s claim,
as do we.
III. We deny JD’s request for fees and sanctions.
¶19 JD requests attorneys’ fees and costs pursuant to Sections 12-
341, 12-348, and 12-1840. JD also requests sanctions against Appellees for
defending a frivolous position pursuant to Arizona Rule of Appellate
Procedure 25. We deny these requests.
CONCLUSION
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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