Warner v. Phx Board
1 CA-CV 15-0863
| Ariz. Ct. App. | Apr 13, 2017Background
- Property: ~2-acre residential lot in Phoenix (RE-43 zoning) with a vacant, uninhabitable house; owner sought to split it into two ~1-acre lots that would be narrower than the zoning width requirement but larger than one acre due to depth.
- Developer applied for a variance in 2014 to permit two 148-foot-wide lots where ordinance requires 165-foot width; each resulting parcel would still meet the one-dwelling-per-acre density.
- Neighbors Peter and Kimberly Warner (appellants) live >650 feet away and opposed the variance, claiming it would reduce their home value.
- Zoning adjustment hearing officer approved the variance; the Phoenix Board of Adjustment upheld that approval after a hearing.
- The Warners filed a statutory special action in superior court challenging the Board’s decision; the superior court affirmed, and the Warners appealed to the Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether variance was necessary to preserve and enjoy substantial property rights | Warner: No evidence property couldn’t be maintained as a single-family lot; variance not “necessary” unless property has no value as-is | Board/Richter: Property shape/depth create special circumstances; strict application would deprive privileges enjoyed by similarly classified lots | Court: Affirmed — credible evidence supported that special circumstances (shape/depth) made variance appropriate under statute/ordinance |
| Whether variance would be materially detrimental to adjacent property owners | Warner: No evidence showing no material detriment to adjacent properties; Board failed to make specific finding | Board/Richter: Proposed redevelopment (tear-down and two custom homes) consistent with neighborhood; minimal width reduction and same density mean no material detriment | Court: Affirmed — evidence supported no material detriment to adjacent properties; Board credibility determinations upheld |
Key Cases Cited
- Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530 (Ariz. Ct. App. 1974) (variances granted sparingly and under exceptional circumstances)
- Mueller v. City of Phoenix, 102 Ariz. 575 (Ariz. 1967) (courts defer to board factfinding and do not reweigh evidence)
- Austin Shea (Ariz.) 7th St. & Van Buren, L.L.C. v. City of Phoenix, 213 Ariz. 385 (App. 2006) (review asks whether some credible evidence supports board’s determination)
- Pingitore v. Town of Cave Creek, 194 Ariz. 261 (App. 1998) (appellate courts may not substitute their factual judgments for the board’s)
- Pawn 1st, LLC v. City of Phoenix, 239 Ariz. 539 (App. 2016) (de novo review of ordinance interpretation; defer to board unless decision lacks substantial evidence)