EMMETT McLOUGHLIN REALTY, INC., v. PIMA COUNTY,
COURT OF APPEALS OF ARIZONA
2002 Ariz. App. LEXIS 176
November 19, 2002
BRAMMER, Presiding Judge.
P1
The question presented in this appeal is whether A.R.S. § 11-829(F), now
(G), [*2] which proscribes
counties from rezoning land in a manner that restricts the permitted uses
without the landowner's permission, violates the Arizona Constitution. n1 As
did the trial court, we find the "anti-downzoning" statute
unconstitutional and, therefore, affirm its ruling granting partial judgment on
the pleadings.
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n1 The parties focus their
arguments on § 11-829(F)'s downzoning
clause, but the statute also provides that counties may not, without a property
owner's consent, initiate "a rezoning of land that changes the zoning
classification of the land." Although this appears to limit all
county-initiated rezoning, we confine our discussion, as did the parties, to
the subsection's effect on downzoning.
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Background
P 2 In 1998, the legislature added
subsection (F) to § 11-829. 1998 Ariz.
Sess. Laws, ch. 55, § 1; 1998 Ariz.
Sess. Laws, ch. 204, § 10. Subsection
(F) provided:
[HN1] The legislature finds
that a rezoning of land that changes the zoning classification of the land or [*3] that restricts the use or reduces the value of the land is a
matter of statewide concern and such a change in zoning that is initiated by
the governing body or zoning body shall not be made without the express written
consent of the property owner. The county shall not adopt any change in a
zoning classification to circumvent the purpose of this subsection.
P3
In April 2000, the Pima County Board of Supervisors considered and approved a
county-initiated rezoning of a parcel of land owned by Emmett McLoughlin
Realty, Inc., and Quik-Mart Stores, Inc. (collectively, McLoughlin), from CB-1
to a combination of SR and CR-2 zoning.
Although numerous business uses are permitted within the former zoning
classification, the latter two permit only residential uses. McLoughlin did not
consent to the rezoning and filed this action challenging Pima County's
downzoning of the property. Pima County admits its "legislative act of
downzoning [the property] was undertaken without the express written consent of
the owners of the property, in contravention of" § 11-829(F), but contended in its motion for
partial judgment on the pleadings, made pursuant to Rule 12(c), Ariz. R. Civ.
P. [*4]
, 16 A.R.S., Pt. 1, that the
subsection's consent provision is an unconstitutional delegation of legislative
authority. The trial court agreed and, after finding that the consent provision
had been the impetus for adopting subsection (F), held the subsection
unconstitutional and, citing Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2,
entered partial judgment on the pleadings in the county's favor. This appeal
followed.
The Owner Consent Provision
P4
[HN2] A motion for judgment on the pleadings tests the sufficiency of the
complaint and should be granted if the complaint fails to state a claim for
relief. Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (App. 1999).
The issue we consider here is whether §
11-829(F) is constitutional, a question of law subject to our de novo
review. See Holly v. State, 199 Ariz. 358, 18 P.3d 152 (App. 2001). In
deference to the legislature's lawmaking authority, we begin with a presumption
that the statute is constitutional. Hernandez v. Frohmiller, 68 Ariz. 242, 204
P.2d 854 (1949); Flood Control Dist.
of Maricopa County v. Gaines, 202 Ariz. 248, 43 P.3d 196 (App. 2002). [*5] Indeed, if a statute can be constitutionally construed, we must
adopt that construction. Blake v. Schwartz, 202 Ariz. 120, 42 P.3d 6
(App. 2002).
P5
[HN3] "The legislative authority of the State shall be vested in the
Legislature . . . ." Ariz. Const. art. IV, pt. 1, § 1(1). [HN4] Our courts, however, have
condoned the legislature's delegation of certain of its powers under
appropriate circumstances. Among the examples of permissible delegation of
powers by the legislature is the delegation of zoning powers to cities and
counties found in A.R.S. § § 9-462 through 9-462.08 and 11-801
through 11-876. See Transamerica Title Ins. Co. v. City of Tucson, 157 Ariz. 346, 757
P.2d 1055 (1988); Anderson v. Pima
County, 27 Ariz. App. 786, 558 P.2d 981 (1976); see also Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct.
114, 71 L. Ed. 303, 4 Ohio Law Abs. 816 (1926). The parties do not dispute
that zoning decisions are legislative in nature, see Mehlhorn v. Pima County, 194 Ariz. 140, 978 P.2d 117 (App. 1998),
but disagree on whether those decisions, or the ability to frustrate them, may
be delegated [*6] to private individuals.
P6
McLoughlin first contends § 11-829(F)
is not a delegation of authority to property owners but merely constitutes the
legislature's withdrawal of a portion of the counties' zoning power. The county
points out, however, that [HN5] each county has "a statutory duty to
create a comprehensive plan in coordination with municipalities and to zone in
coordination with municipalities in urban areas." See A.R.S. § § 11-806 and 11-825(C)(4). A county's
planning power is not merely ancillary to its ability to rezone; the two powers
are interdependent. Only with the authority to rezone property can a county
effectively make the extensive planning determinations required of it, such as
is contemplated by the Urban Planning-Growing Smarter Act. See 1998 Ariz. Sess. Laws, ch. 204, § § 1, 6-10; § 11-806. When
it enacted § 11-829(F), the legislature
neither revested in itself the zoning authority over property within counties'
jurisdictions nor withdrew the counties' planning powers. Because it did not
withdraw portions of counties' zoning authority by enacting the subsection, the
legislature cannot effectively exercise the counties' [*7] zoning powers McLoughlin argues it ostensibly
withdrew.
P7
In contrast to McLoughlin's suggestion, [HN6] the subsection affirmatively
grants property owners the ability to prevent counties from initiating
downzoning of the owners' property, see
§ 11-829(F) (county-initiated
downzoning prohibited "without the express written consent of the property
owner"), thereby effectively delegating to those property owners the
downzoning authority that formerly reposed in counties. However, "it is a
well established theory that a legislature may not delegate its authority to
private persons over whom the legislature has no supervision or control." Industrial Comm'n v. C & D Pipeline,
Inc., 125 Ariz. 64, 66, 607 P.2d 383, 385 (App. 1979); see Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S.
116, 122, 49 S. Ct. 50, 52, 73 L. Ed. 210, 214 (1928) (holding
unconstitutional a zoning law that purported to give landowners who were
"not bound by any official duty, but were free to withhold consent for
selfish reasons or arbitrarily and [could] subject [a neighboring landowner] to
their will or caprice" authority to prevent a particular use [*8] on a neighbor's land); People ex rel. Chicago Dryer Co. v. City of Chicago, 413 Ill. 315,
109 N.E.2d 201, 206 (Ill. 1952) ("The legislature cannot abdicate its
functions or subject citizens and their interests to any but lawful public
agencies, and a delegation of any sovereign power of government to private
citizens cannot be sustained nor their assumption of it justified."); 8
Eugene McQuillan, Municipal Corporations
§ 25.35, at 111 (3d ed. 2000) ("Zoning
powers may not be delegated to private parties or property owners."); 83
Am. Jur. 2d Zoning and Planning
§ 615 (1992); see also FM Properties Operating Co. v. City of
Austin, 22 S.W.3d 868, 877, 43 Tex. Sup. Ct. J. 835 (Tex. 2000) (state law allowing
certain landowners to exempt their properties from municipal water requirements
unconstitutionally delegated legislative power to landowners whose
"pecuniary interest in developing their land to realize profit may be
inconsistent with or repugnant to the public interest").
P8
McLoughlin contends, however, that, instead of delegating to owners the ability
to legislate, the subsection merely allows owners to waive a restriction
established by the legislature, [*9] that is, a general prohibition on county-initiated downzoning. As
Pima County points out, this argument highlights the distinction between two
historical lines of authority in this area. The first, the "waiver"
line, is typified by Thomas Cusack Co. v.
City of Chicago, 242 U.S. 526, 37 S. Ct. 190, 61 L. Ed. 472 (1917), in
which the Court upheld a city ordinance allowing a majority of property owners
to waive a general prohibition against the erection of billboards in
residential neighborhoods. In doing so, the Court noted the statute did "not
[constitute] a delegation of legislative power, but was . . . a familiar
provision affecting the enforcement of laws and ordinances." Id. at 531, 37 S. Ct. at 192, 61 L. Ed. at
476. [HN7] Courts have generally distinguished such "waiver"
regulations from ones requiring an owner to obtain the consent of neighboring
property owners before taking land-use planning action. In Eubank v. City of Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156
(1912), for example, the Court struck down a city ordinance allowing a
majority of property owners to establish neighborhood setback requirements.
P9 [*10] In the second line of authority, the "consent" line, the
Illinois Supreme Court addressed the distinction in Chicago Dryer Co. The Illinois legislature had delegated to
municipal corporations the authority to name streets. In response to Hagerty v. City of Chicago, 360 Ill. 97, 195
N.E. 652 (Ill. 1935) (naming of streets a legislative function), the
legislature had amended the street-naming statute to require a municipal
corporation to change a street's name it if received a petition
containing the signatures of
sixty percent of the street's property owners. The court found the amended
statute's effect was to give the property owners unbridled discretion of what the
law shall be, and, once they have made that determination, the corporate
authorities become a mere automatic register of their action and the will of
the property owners is given the effect of law. Stated simply, here the
provision in reference to the consent of the abutting owners affects the
enactment of the law rather than its execution. Thus construed, the decision of
a group of property owners, in an admittedly legislative field, is made to
prevail over that of the corporate authorities who [*11] represent the entire
population . . . without regard for the necessity, beneficence or
reasonableness of their action.
109 N.E.2d at 205
(citations omitted). As such, the court said, the law constituted
"legislative delegation in its most obnoxious form." Id.
P10
The county also relies on Brodner v. City
of Elgin, 96 Ill. App. 3d 224, 420 N.E.2d 1176, 51 Ill. Dec. 618 (Ill. App. Ct.
1981), which we find helpful to our discussion. There, the City of Elgin
adopted a municipal ordinance requiring applications for rezoning to be
accompanied by the written consent of the owner of the property to be rezoned.
Over the protests of several property owners, the city filed and adopted
applications to rezone the owners' parcels. The owners sought a judicial
declaration that the zoning amendments were invalid because the city had failed
to obtain their consent. In upholding the trial court's dismissal of the
complaint, the Illinois appellate court held that the owner consent provision
was an unconstitutional delegation of the city's legislative zoning authority
because it "conferred upon the owner of the property the absolute
discretion to decide [*12] that no rezoning shall ever occur . . .
despite the fact that the City [might] be effecting a comprehensive zoning plan
in pursuit of the common good." 420
N.E.2d at 1178.
P11
The central question under these cases in classifying whether a statute such as
§ 11-829(F) falls within the consent or
waiver line of authority is whether the legislative body permissibly delegated
its legislative authority. [HN8] Because the owner consent provision in the
subsection affects a rezoning's enactment as opposed to its execution, § 11-829(F) cannot be classified a waiver
statute. See Chicago Dryer Co. Similar
to the ordinance at issue in Brodner
and the statute at issue in Chicago Dryer
Co., § 11-829(F) is a consent
statute that unconstitutionally permits a property owner to withhold consent
from such a proposed rezoning based solely on his or her self-interest. In
doing so, the property owner is unaccountable for frustrating the public
health, safety, or welfare because the county's board of supervisors has no
recourse. See A.R.S. § 11-251(30);
11-802.
P12
McLoughlin also argues, however, that the legislature intended § 11-829(F) to create [*13] a type of vested
right in zoning classifications. [HN9] Under the vested rights doctrine, a
property owner who materially acts in reliance on an issued building or special
use permit may continue to act in conformance therewith, notwithstanding
arbitrary governmental withdrawal or cancellation of the permit. Town
of Paradise Valley v. Gulf Leisure Corp., 27 Ariz. App. 600, 557 P.2d 532
(1976). Although McLoughlin suggests no material reliance here and points
to no occasion in which the legislature has by implication expanded this
equitable doctrine, we need not decide the issue because the legislative
history accompanying § 11-829(F)'s
adoption contains no suggestion the subsection was intended to expand property
owners' vested rights to include zoning classifications. As we have already
discussed, the narrow breadth of the legislation instead demonstrates no
legislative intent to withdraw counties' downzoning authority; by implication,
as the trial court found, the legislature's central purpose in enacting § 11-829(F) was adoption of the owner consent
provision. Moreover, we question whether expanding the vested rights doctrine
in this manner could be upheld as being [*14]
substantially related to the
public's health, safety, and welfare, see
Euclid; Rotter, because the
subsection's restriction applies only to county-initiated downzonings. Under
such a system, any rights the legislature arguably might have intended to vest
by enacting § 11-829(F) would be
abrogated upon either a municipality's annexation of the owner's property or
the incorporation of a municipality including that property.
Severability
P13
McLoughlin also contends that, if the owner consent provision is
unconstitutional, it is nonetheless severable from § 11-829(F), permitting the subsection's remainder to be enforced.
[HN10] We will not declare an entire statute unconstitutional if, after the
unconstitutional portions have been excised, the remaining portions may be
interpreted consistently with the constitution, see Randolph v. Groscost, 195 Ariz. 423, 989 P.2d 751 (1999), and
it clearly appears the legislature would have enacted the remainder without the
unconstitutional portion. State Compensation Fund v. Symington, 174
Ariz. 188, 848 P.2d 273 (1993).
P14
As Pima County suggests, and as McLoughlin acknowledges, without [*15] the owner consent provision, the remainder of the subsection would
prohibit all county-initiated downzoning. As we have already discussed, nothing
in the legislative history suggests the legislature adopted § 11-829(F) intending to completely withdraw
counties' zoning powers or to enact a total prohibition on county-initiated
downzoning. Instead, we can only infer from the legislative history that the legislature's
purpose in adopting the subsection was protecting property values through the
owner consent provision. Because the legislature did not intend the subsection
to be applicable without the owner consent provision, we need not determine
whether the remainder of the subsection may be independently enforced. See Symington. We accordingly agree with
the trial court that the entire subsection is invalid.
P15
Affirmed.
J. WILLIAM BRAMMER, JR.,
Presiding Judge
CONCURRING:
M. JAN FLOREZ, Judge
JOSEPH W. HOWARD, Judge