Adams v. Giguere
1 CA-CV 16-0209
| Ariz. Ct. App. | May 23, 2017Background
- Giguere bought a Tempe lot, demolished the existing house, and rebuilt; two approved plans inconsistently described the south right-of-way width.
- Because of the discrepancy, the completed house sat 20 feet from the curb (10 feet short of the City’s 20-foot front setback measured from the property line).
- Giguere applied for two variances (front-yard setback and reduced on-site driveway length); a hearing officer denied them, and the City Board of Adjustment later granted both following a hearing.
- Neighbors sought special-action relief in superior court under A.R.S. § 9-462.06(K); the superior court denied relief and the Neighbors appealed.
- The Board relied on evidence including city staff reports noting an excessive right-of-way, lack of sidewalk, and site easements/power lines that limited building placement; the Board had previously granted similar variances in the area.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether special circumstances (hardship) justified variances | Neighbors: insufficient evidence; hardship was self-created and not unique | City/Giguere: right-of-way, lack of sidewalk, easements/power lines created hardships beyond Giguere's control | Affirmed — credible evidence supported implicit finding of special circumstances/hardship |
| Whether strict application of the Code deprived Giguere of privileges enjoyed by others | Neighbors: no deprivation because Giguere could have built compliantly | City/Giguere: many nearby properties received similar variances; parity shown | Affirmed — record showed other variances granted; Giguere was not granted special privileges |
| Whether the hardship was self-imposed by building before seeking relief | Neighbors: variance improperly granted because the issue resulted from placement error | City/Giguere: post-build application is not dispositive; right-of-way and easements were not created by owner | Affirmed — circumstances not shown to be self-imposed to preclude variance |
| Standard of review for Board decision | Neighbors sought reversal for lack of evidence | City: Board decision reviewed for abuse of discretion/arbitrary or capricious conduct; credibility determinations control | Affirmed — appellate and superior courts must defer if credible evidence supports Board |
Key Cases Cited
- Pawn 1st, L.L.C. v. City of Phx., 239 Ariz. 539 (App.) (zoning board powers limited to statutory/ordinance grants)
- Arkules v. Bd. of Adjustment of Paradise Valley, 151 Ariz. 438 (App.) (scope of board authority)
- Austin Shea (Ariz.) 7th St. & Van Buren, L.L.C. v. City of Phx., 213 Ariz. 385 (App.) (standard of review: defer to board if credible evidence supports decision)
- Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530 (App.) (party challenging board bears burden to show decision was against weight of evidence)
- Burns v. SPA Auto., Ltd., 156 Ariz. 503 (App.) (special circumstances/hardship need not be absolutely unavoidable; must arise from ordinance application)
- FL Receivables Tr. 2002-A v. Ariz. Mills, L.L.C., 230 Ariz. 160 (App.) (factfinder resolves conflicting evidence; credibility determinations binding on appeal)