Appellant Bruce D. Schoenberger appeals from a j'udgment of the superior court dismissing his complaint. We took jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S.
Appellant owns real рroperty located in the City of Phoenix from which he operates a contractor’s business. On June 2, 1977, aрpellant was served with a notice of ordinance violation by the City of Phoenix Zoning Enforcement Seсtion of the Building Safety Department. The violation alleged was the improper use of the premises for purposes not in conformance with the existing zoning. Approximately two weeks later, appellant filed an application for a zoning adjustment to permit a change from the former nonconforming usе to a new nonconforming use. The Zoning Administrator for the city denied the application. Appellant then appealed the decision of the Zoning Administrator to the Board of Adjustment of the City of Phoenix. At the conclusion of the public hearing held on August 10, 1977, the Board upheld the decision of the Zoning Administrator denying appеllant’s application.
On October 7, 1977, fifty-eight days after the Board had announced its decision, appellant filed a complaint in the superior court. Count I of appellant’s complaint stated that it was “a statutory special action in the nature of certiorari brought pursuant to A.R.S. § 9-465(E).” Appellant asserted thаt the Board had abused its discretion, acted arbitrarily and in excess of its jurisdiction and asked for relief in the fоrm of an order reversing the Board’s decision and directing it to grant the requested permit. Count II asked for a declaratory judgment to the effect that the appellant could continue his nonconforming use of the property since there had been no change in use from that made by the previous owner.
The Board filed a motion to dismiss the complaint claiming: (1) that the court lacked jurisdiction over the subject matter; (2) that the complaint failed to state a claim upon which relief could be granted; and (3) *530 as to Count II, only, thе appellant had failed to exhaust his administrative remedies. Grounds (1) and (2) were based upon the fact thаt the action had been filed more than 30 days after the Board’s decision contrary to the requirements оf the city zoning ordinance. The superior court granted the Board’s motion and dismissed the complaint with prеjudice.
Appellant has not raised any issue on appeal relative to the disposition of Count II оf his complaint, so we will not consider that matter.
The issue for determination by this court is whether the City of Phoenix mаy by a city zoning ordinance limit the time within which the superior court has jurisdiction to review a decision of the Bоard of Adjustment. We conclude that it cannot.
Former A.R.S. § 9-465, repealed January 1, 1974, provided a thirty-day period within which to petition for a writ of certiorari for review of a decision by the board of adjustment. The current statute covering board of adjustment procedures, A.R.S. § 9^462.-06, does not set forth an appeal procedure to review decisions of a board of adjustment. Appellee’s position is that there being no stаte statute on the subject, the city is entitled to prescribe the time period within which actions must be filed to review board decisions. City of Phoenix Zoning Ordinance § 109.1(C)4 provides:
“Any person aggrieved by any decision of the Bоard or any taxpayer or municipal officer, may apply to a court of competent jurisdiction within thirty (30) days of the Board hearing as provided by law.”
Jurisdiction is the power of a court to hear and detеrmine a controversy.
Duncan v. Truman,
Both parties to this appeal agree that the proper designation of Cоunt I of the complaint should be as a “special action” under Rule 1(a) of the Rules of Procedure for Special Actions, 17A A.R.S. rather than as a “statutory special action.” It is generally recognized that when there is no provision providing for appeal in a zoning enabling statute, review of administrative board dеcisions is by resort to the common-law writ of certiorari. Yokley,
Zoning Law and Practice,
Vol. 2, § 18-9; Rathkopf,
The Law of Zoning and Planning,
Vol. 3, § 63-10. Since the repeal of A.R.S. § 9-465 there is nо provision for appeal, and the only method of review is by way of certiorari.
See Town of Paradise Valley v. Gulf Leisure Corp.,
The superior court is empowered to grant the writ of certiorari pursuant to A.R.S. § 12-2001. The petition for special action is nоw the procedure for obtaining relief by writ of certiorari.
City of Phoenix v. Superior Court,
The trial court erred in dismissing the appellant’s special action for lack of jurisdiction. The case is remanded to the superior court for proceedings consistent with this opinion.