Pawn 1st, LLC v. City of Phoenix
239 Ariz. 539
| Ariz. Ct. App. | 2016Background
- Pawn 1st sued after the Phoenix Board of Adjustment granted a variance allowing Jachimek (Central Pawn) to operate a pawn shop in a C-3 zoned parcel despite a Zoning Ordinance requirement that pawn shops be located at least 500 feet from a residential district.
- The City Zoning Ordinance permits pawn shops in C-2 (and therefore C-3) districts but imposes a 500-foot distance limitation.
- The Zoning Administrator denied the variance; the Board reversed and granted it. Pawn challenged that grant in superior court; this court previously held Pawn had standing and remanded for consideration of the special action.
- On remand the superior court upheld the Board; Pawn appealed to the Court of Appeals.
- The Board relied on special circumstances asserted by Jachimek: prior eminent domain actions that reduced lot size, eliminated setbacks and parking, and discontinuance of a nonconforming use. The City recommended denial, arguing the circumstances were self-created.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the variance was a prohibited "use" variance (i.e., changed permitted uses) or an allowable "area" variance | Pawn: The 500-foot separation effectively prohibits the use and thus the variance is a forbidden use variance | City/Jachimek: Pawn shops are a permitted use in C-3 (via C-2); the 500-foot rule is a dimensional/area restriction | Held: The variance was an area variance, not a use variance — it did not authorize a use otherwise prohibited in the zoning district |
| Whether the Board had authority to grant the variance (i.e., whether statutory/ordinance criteria were satisfied) | Pawn: Board lacked authority because statutory/ordinance criteria for variance (special circumstances not self-imposed; deprivation of privileges enjoyed by similar properties) were not met | City/Jachimek: Eminent domain effects and discontinuance of nonconforming use constituted special circumstances; grant was justified | Held: The Board exceeded its authority — special-circumstance requirement was not met because claimed hardships were self-created by selecting the site; the variance was ultra vires and void |
| Proper scope of "district" comparison for special-circumstance analysis | Pawn: Compare to other properties in the same district/classification that do not suffer the claimed hardship | City: District includes other C-3 parcels; comparison to nearby C-3 corner parcels was appropriate | Held: Board properly compared property to other C-3 parcels in the district; that comparison did not save the variance because the special-circumstance element failed |
| Effect of discontinuance of a nonconforming use on variance analysis | Pawn: Discontinuance is not a special circumstance creating deprivation relative to other district properties | Jachimek: Discontinuance recognized by City as a special circumstance | Held: Discontinuance alone is not a special circumstance; it restores conformity and does not justify a variance |
Key Cases Cited
- Pawn 1st, L.L.C. v. City of Phoenix, 231 Ariz. 309 (App.) (prior opinion addressing standing and remand)
- Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530 (1974) (distinguishing use vs. area variances)
- Arkules v. Bd. of Adjustment of Town of Paradise Valley, 151 Ariz. 438 (App.) (board has only statutory powers; ultra vires acts void)
- Haynes v. City of Tucson, 162 Ariz. 509 (App.) (variance requires deprivation of privileges enjoyed by similar properties)
- Burns v. SPA Auto., Ltd., 156 Ariz. 503 (App.) (special circumstances/hardship cannot be self-inflicted)
- Desruisseau v. Isley, 27 Ariz. App. 257 (1976) (C-3 district allows uses permitted in C-2)
- Austin Shea (Ariz.) 7th St. and Van Buren, L.L.C. v. City of Phoenix, 213 Ariz. 385 (App.) (substantial-evidence review of board decisions)