Third & Catalina Associates v. City of Phoenix

objections may previ- partment stand on its

ously appeals, supple- in the court of filed objections along ment them relating to supplemental application for fees petition for review. Conclusion appeals’ decision We affirm court of 42-1314(A)(l) § A.R.S. does former like con- apply rafting trips to river those disap- ducted Wilderness World. We prove of Mac insofar as found that Moki trips rafting river were an “amusement” that Mac, charged “admission fee.” See Moki an 773 P.2d at 478. re- Ariz. at We appeals’ denial of attor- verse the court neys’ fees and find that Wilderness World attorneys’

entitled an award of its fees including appeal, incurred on fees incurred petition for review to this court to estab- right attorneys’ fees. lish C.J, FELDMAN, MOELLER, V.C.J., and MARTONE, JJ., ZLAKET and concur.

895 P.2d 115 ASSOCIATES, THIRD & CATALINA Plaintiff-Appellant, PHOENIX, political subdivi- CITY OF Arizona, City of sion of the State of City Council, Phoe- Phoenix Department, Defendants-Appel- nix Fire lees. 93-0337.

No. CA-CV Arizona, Appeals Court 1, Department A. Division Aug. May Review Denied Anderson, Westover,

O’Connor, Cavanagh, Beshears, Killingsworth P.A. Christo- & Cure, Robbins, Troy Harding B. B. pher Froderman, Phoenix, plaintiff-appellant. McDougall, City Atty. Mi- Roderick G. Phoenix, House, City Atty., D. Asst. chael defendants-appellees.

OPINION

GRANT, Presiding Judge. to decide appeal In we are asked this requir of Phoenix ordinance1 whether Asso retrofitting of Third & Catalina unconstitu sprinklers ciates’ protection rights or violating equal tional as just process of law or without due Associates compensation. Third & Catalina summary judg appeals from .(“appellant”) granted in favor of the of the trial court ment Appendix 1. See A. major affirming City’s appellant’s variance from the ordinance

City, denial of retrofitting a difficulties in requested relief. the basis of the Following contained ACMs. re AND denial FACTS PROCEDURAL HISTORY the Fire Marshal’s City quested appellant appealed under the is the of the U.S. Appellant owner West The Fire to Phoenix Fire Code the Chief. building Communications on Third and Earll appeal appellant then denied the and Chief Phoenix, building Streets in Arizona. The is the Adviso pursued appeal to ten-story glass and Appel- steel structure. ry also the appeal Board. The Board denied originally The lant contracted with Mountain 1, 4, Article April Pursuant to on 1991. Telephone Telegraph Company States and 1.2(h) of the Phoenix Fire Prevention Section (“Mountain States”), predecessor to U.S. Code3, appealed Phoenix Communications, erect two commer- West to City City The Council denied Council. buildings property. cial on The first the 8, an Appellant filed on June 1992. then building was in 1971 and constructed 1972. pursuant to “appeal” superior court Appellant and into Mountain States entered the Phoenix Fire Prevention Code. thirty-year building lease for the that ex- a. pires year in in July the on “appeal” This filed complaint superior in the form a court is During the construction of the first build- with three counts: ing, City required protection fire on the 1. Section 28.40 of Fire Prevention building in structural steel before an (“the City sprinkler of Phoenix Code of the occupancy permit could be issued. Accord- ordinance”), appel- applied retrofit ing appellants, only acceptable coating building lant’s is an unconstitutional (asbestos-con- at that time contained ACMs just compensation without materials). taining building in- The owners violation and Arizona of the United States stalled Monokote on steel the structural com- constitutions. ponents building satisfy of the the fire protection requirement. The sprinkler Monokote used ordinance vio- The retrofit equal protection an ACM. Once the had of the Monokote been lates the clauses steel, applied on the is- structural United and Arizona constitutions States permit. occupancy “exempts” high sued a rise After because it residential building, scope. erection of the buildings first Mountain from its States elected not erect the second com- 3. The ordinance and enforcement of premises. mercial on the Mountain process ordinance violates the due clauses (now Communications) States U.S. West has constitu- States Arizona United appellant’s building been the sole tenant of tions. since 1973. designated “Complaint complaint The was sprinkler retrofit ordinance was enact Statutory Special Action.” years ed sixteen after the construction of Phoenix, defendants/appellees, City 22, building, July appellant’s on 1987. The Council, City of City of Phoenix requires existing ordinance that all commer (collectively Department Phoenix Fire exceeding 75 high-rise buildings cial feet “City”) filed an answer. The then filed sprinkler systems. height be retrofitted with summary judgment raising both a motion for No. Phoenix Council Ordinance By procedural and substantive defenses. Phoenix, § Ariz. Fire Prevention Code 28.40. entry minute dated December 1976, sprinkler systems have re Since been jurisdiction the statuto- trial court declined in all new quired buildings.2 City’s ry special deni- action affirmed 4,1990, By minute challenged appellant’s requested al of March relief. On ruling appel- sought exemption entry May on ordinance and an dated parties agree high-rise buildings Appendix 3. See B. Both 2. Before 22 commercial high-rise buildings appeal. language Appendix and 8 residential were built B controls for this sprinklers in Phoenix. without reconsideration, Appellant lant’s motion for the trial claims are takes the time-barred. required entry position court minute De- to exhaust ad- struck that it was filing paragraph the third in ministrative remedies before cause cember on ordi- jurisdiction superior action court based the court declined Appellant nance. claims that followed the statutory special signed action and the court City’s appeals procedure contained in Phoe- formal written order that had been submit- nix Ordinance No. G-2922 the letter January judgment ted on 1993. The was period and that limitations is tolled dur- April filed 1993. This appeal timely party the time a exhausts administrative filed. County,

remedies. v. Cochise Minor ISSUES sprinkler required appellant The ordinance appellant timely complaint, 1. a Did file approval plan department to obtain fire of a statutory period following within the compliance February or before on exhaust its effort to administrative reme- provides The also 1988. ordinance compliance the dies with Phoenix Fire it that after shall be December Prevention Code? by unlawful to maintain a covered 2. ordinance an Is the unconstitutional sprinkler requirement for human occu- the property just appellant’s without pancy complete. not which the work is compensation? financially appellant Because believed was appellant 3. proce- Has the denied ordinance, impossible ap- the comply process by denying right dural due it the complete pellant plan. did not submit hearing? to a fair timely the appellant When did submit Has the ordinance denied complete plan, department requested the fire equal protection by discriminating between City criminally prosecute gener- the that commercial and residential build- manager During appellant. al the crimi-

ings? proceeding, appellant nal filed for relief from Phoenix ordinance under Ordinance DISCUSSION G-2922, No. Phoenix Ariz. Fire Prevention 1.2(h). Code, According § appel- article of Limitations. Statute lant, appellate process under the admin- City argues appel The that procedure step-by-step istrative continued lant’s claims are barred the statute follows: recognize limitations. At the outset we must (1) Appeal to the Phoenix Fire Petition of of limitations is the statute not a favored 4, 1990); May (ruling Marshal dated Dixon, v. 864 defense. Guertin (rul- (2) Appeal Phoenix Fire Chief (App.1993). challenging An action 1072 29, 1990); May dated constitutionality ap anof ordinance as (3) Appeal the Phoenix Fire Ad- plied particular property filed to a must be 4, 1992); visory (ruling April dated Board years within of the date the four ordinance (“A.R.S.”) (4) Appeal adopted. Ariz.Rev.Stat.Ann. the Phoenix Council Yuma, 3, 1992); 12-550; (ruling § Ranch 57 v. 152 dated June (App.1986). P.2d 113 In a (5) statutory Special Action Complaint for ordinance, zoning challenge to a the Ranch' pursuant Phoenix Ordinance No. applied four-year limita- court statute of 1992). (filed July G-2922 applies tions to actions other than for appellate proce- Under the administrative no recovery of real for which dure, forum to address issues is last prescribed. otherwise limitation is Phoenix, superior Ariz. Fire Pre- court. 1.2(h)(e). Appellant §1 vention Code art. the ordinance this case was Since every step adopted of the mandat- July appellant’s 1987 and claims it took appeal process attempt to superior complaint until ed in its receive an was not filed court exemption Virgi- Hodel v. July City’s position or a variance. See is that timely Therefore, Ass’n, complaint was appellant’s Mining & Reclamation nia Surface 69 filed. 452 U.S. S.Ct. L.Ed.2d 1 just taking without 2. Unconstitutional for the given reasons compensation. exemption were: hard- requested variance Supreme Court The United States compliance, ship, impossibility of recently has stated: result constitutional violations would Fifth Amend- Takings Clause appellant’s applying the ordinance situa- Constitution, of the United States ment regular City responds that tion. The through the applicable to the States made Appeals Procedure Fire Prevention Code Amendment, Chicago, B. & Fourteenth granting minor vari- only authorizes the of a Q.R. [17 Chicago, 166 U.S. Co. require- ance from Fire Prevention Code (1897), pro- 979] L.Ed. S.Ct. appellant sought a ma- ments and that since property be private shall “[N]or vides:

jor exemption, appellant was re- variance or use, just compen- public without taken challenge superior quired to the ordinance principal purposes sation.” One years We court four of its enactment. within is “to bar Government Takings Clause given argument to be without merit find this bear forcing people alone to from some pro- multiphase appellate the elaborate which, in fairness and public all burdens the exhaustion cedure the enacted and justice, public the as a should be borne of remedies doctrine. States, Armstrong 364 v. United whole.” The rationale behind the exhaustion 40, 4 L.Ed.2d [80 U.S. 49 S.Ct. permit (1960). “an admin of remedies doctrine is to 1554] agency perform istrative functions within — U.S.—, 114 Tigard, Dolan v. of a factual special competence—to its make (1994) (footnote 2309, 304 129 L.Ed.2d S.Ct. record, expertise, to correct apply its omitted). judicial so as to mute contro its own errors financially im- that it is Appellant claims Waddell, 174 versies.” Estate Bohn v. ordinance possible comply it to 324, (App.1992), Ariz. 848 P.2d 331 states, the Appellant as now written. — denied, U.S.—, cert. 113 S.Ct. appellant cannot dispute, not does (1993). Therefore, 125 L.Ed.2d 693 exhaus sprinklers building its with without retrofit particu is of tion of administrative remedies building, in due to abating the ACMs the importance lar when the case raises constitu asbestos, regulations and hazards of OSHA agency The administrative tional issues. except at cannot abate the ACMs and that it aggrieved party on may in favor of the decide is not financially ruinous cost. The asbestos grounds, mooting the constitution other thus way if undisturbed. There is no a hazard left relieving of the need al issue and the courts disturbing the sprinklers to install without plaintiff it. If a fails to exhaust to decide According appellant, the esti- asbestos. remedies it will be barred administrative of the ACMs for full abatement mated cost Mi appealing to the courts for relief. from mil- sprinklers is between $8 order to install County, Ariz. at 608 v. 125 nor Cochise million, much or more than lion and $10 (1980); Bohn v. at Estate Wad 310 Appellant argues that building is worth. the dell. if is only option, the ordinance its reasonable enforced, human the to all is to close agree stated we with For the reasons abatement, partial occupancy. To conduct properly its ad- appellant that it exhausted incorporation stud-wall through compliance in full with ministrative remedies systems, sprinkler the cost would of mounted public policy. The statute the law and million to million. approximately during process. $5 this be $3 tolled limitations was presence Appellant contends that Railway Ex- Telegraphers R.R. v. Order of acquire impossible to makes it 88 ACMs press Agency, 64 S.Ct. 321 U.S. Kadota, necessary financing retrofit Hosogai 145 v. L.Ed. 788 (1985). financial sprinklers. Because of these with 1332 700 P.2d Ariz. 208 brought ordinance, Corrigan v.

constraints about tional Scotts dale, (App.1985), claims that it will be forced to bar 720 P.2d 528 building, human use part, part, break its vacated in aff'd West, give up any hope denied, (1986), lease with U.S. of 720 P.2d cert. 479 U.S. investment, profiting from suffer 986, 107 $8.5 In 93 L.Ed.2d S.Ct. existing million financial loss because of the com Corrigan the ordinance could mortgage building, on the and demolish the money; expenditure mere plied with building. For these reasons takes effectively given up the land had to be position it all the ordinance denies city purpose. public for a economically building. use of the viable Queenside agree holding We Appellant relies on Lucas v. South Car Saxl, Realty Hills 328 U.S. 66 S.Ct. Co. — Council, —, olina Coastal U.S. (1946), in which Su- 90 L.Ed. 1096 (1992) 2886, in which S.Ct. L.Ed.2d preme rejected challenge to a Court a similar Supreme held that Court at least two requirement, stating: fire retrofit categories regulatory will be action Many types legislation of social diminish compensable case-specific deemed without in property regulated. value of quiry public into the interest advanced cases those where in the extreme are support of the restraint. The first is a public safety or welfare the interest of “physical property invasion” of the and the using proper- prohibited owner is his regulation is when all eco second “denies dealing ty. are with a less dras- We here nomically productive beneficial or use of But case tic measure. in no does — Lucas, at—, land.” U.S. 112 S.Ct. at immunity acquire owner of 226-27, 2893; accord 152 Ariz. at Ranch against police power the exercise of the 731 P.2d at 121-22. compli- it in full because he constructed 57, In Ranch the court held that a existing police ance laws. The with pri zoning taking ordinance constituted a of power powers, one of the least limitable is property deprived vate when restrictions operation prop- and often cuts down prop use for which the owner of reasonable erty rights. erty “adapted destroys thus its eco is (citations 328 U.S. at 66 S.Ct. at 851-52 value, or a bare of nomic all but residue omitted). 152 731 P.2d at value.” Ariz. at of we do not have a situation Here present one We view the case neither that private property being pressed public into physical a invasion nor one which involves Tigard; City v. Lucas service as Dolan destroys use which of the reasonable Council; v. South Coastal or Corri Carolina adapted. property City’s sprinkler is The City may gan City The v. Scottsdale. regula retrofit ordinance is not a land use of police power by re legitimately exercise its any impose tion. does The ordinance not quiring existing buildings used for human Rather, on restrictions the use land. habitation to meet reasonable health safety regulation de the ordinance is a fire safety protect standards order to the occu signed protect Compliance life. to human property may even be de pants. Private merely the ex requires with the ordinance compensation to stroyed by City a without penditure giving up of money, necessary the owner when the destruction Furthermore, taking. is no land. There this City protect public. v. Phoe to Moton is a to be cost borne owners nix, (1966); 410 100 Ariz. P.2d 93 South profits its rental building who derive Ernst, Ariz. 291 Eng’g v. 79 west Co. public to at and not a cost be borne P.2d 764 large potential does not share those profits. money spent Requiring require compensate appel- To comply regulation a is not an unconsti lant in to enforce its retrofit order private property. tutional City’s nullify legitimate ordinance would fire police power protect its citizens from unlike the Hillside Ordi-

This situation is ruling far- hazards. a would have we found to be an unconstitu- Such nance which

209 issue of sub raised the appellant The preventing implications—such as reaching on the first time process for stantive due ordering property owner to City from a not raised the issue was appeal. Since structurally unsound with- vacate a decide it we do not in the trial court decided compensation to do so. paying out the owner Bank, 165 v. Arizona here. require type ruling would That Schoenfelder (1990); Reso P.2d 890 Ariz. 796 safety property in order to enforce purchase Scottsdale, 177 Corp. City v. Trust lution right Appellant has no standards. (App.1993). 866 P.2d 902 Ariz. safety Merely exempt from fire laws. to be money spend to com- requiring appellant to Equal Protection. ply sprinkler retrofit ordinance does right. the ordinance away any property Appellant We hold claims that not take equal guarantee of is not an unconstitutional violates the constitutional that the ordinance imposing a bur by classifying and protection taking. buildings but high-rise upon commercial den buildings. exempting residential procedural process. due 3. Denial of has contends is unconsti proving the ordinance burden of argues City never Appellant that the presumed any ordinance is tutional because proper the costs and difficulties considered —Doe, U.S. Heller v. Doe to be valid. retrofitting ty have in owner would (U.S. —, 125 L.Ed.2d 257 113 S.Ct. Appellant claims to ACMs. contained 1993); Living Cleburne Cleburne hearing a full and fair have been denied Ctr., Inc., 432, 105 473 U.S. S.Ct. issue, never arguing this that there was (1985); Watahomigie v. Arizona L.Ed.2d af cross-examination that could be available Appeals, Quality Bd. Water City’s proce under the administrative forded City claims (App.1994). The 887 P.2d 550 requirement “The fundamental dures. affida required to submit opportunity to be heard at process due is the to overcome competent evidence vits or other meaningful meaningful in a manner. time validity not. presumption of did Haralambie, 122 Ariz. Huck v. Morrison v. Shanwick ample support record contains Corp., Int'l 804 P.2d why have rational could reasons Watahomigie Bd. (App.1990).” v. Arizona greater need ly immediate believed that Quality Appeals, 181 Ariz. 887 Water retrofitting require in commer existed to the court, (App.1994). In the trial the P.2d 550 answer, buildings. In the high-rise cial City contended that waived high-rise build City that commercial states for cross-examination of wit opportunity open floor areas which ings utilize extensive City no cross-exam admits that nesses. rapid spread of fire and smoke. facilitate the City is available under the Phoenix ination compartmen buildings are more Residential aggrieved appellate process until the Code’s high-rise many residential talized. Unlike However, superior party reaches the court. buddings buildings, commercial request appellant never the states that air-conditioning ven and to have central tend and right to cross-examine witnesses ed the in systems are conducive to tilating which testimony smoke, unsworn complained gas never about and toxic creased circulation proceedings before during the administrative throughout the structure. Commer flames Chief, Marshal, Fire occupancy the Fire the higher the Fire than buildings cial have Board, Furthermore, Advisory the Phoenix buildings. underin residential many proceedings equal protec not violate the Council. Given clusiveness does Dukes, involved, including those 427 U.S. New v. appellant was tion clause. Orleans which (1976); court, 511 can find no violation 49 L.Ed.2d superior we 96 S.Ct. Aiello, 417 94 S.Ct. Geduldig on this record. Wa U.S. procedural process due v. Ad Quality 256 Nixon L.Ed.2d tahomigie v. Arizona Bd. Water Servs., 425, 97 433 U.S. County, 178 Ariz. ministrator Gen. v. Pinal Appeals; Guertin 53 L.Ed.2d (App.1994). S.Ct. 875 P.2d application of challenge high-rise buildings administrative treating all commercial building. ordinance to they If alike—they sprinklers. all must have re- sprinklers were were built after 1976 request Third & Catalina In March construction; if initial quired part as of the “modification, or amendment” variance ed a they must be they were built before marshal, claim from the fire of the ordinance grant appel- sprinklers. To retrofitted for system sprinkler of a ing that installation exemption result in unfair lant an would that, in It stated prohibitive. cost would be buildings have al- to those which treatment first have system, it would to install a order retrofit ready complied with the building that to abate the asbestos ordinance. render the involved would the costs “Unnecessary In a statement of

valueless.4 5. Conclusion. asked Hardship,” Third & Catalina Personal granted fire marshal hold reasons we have stated we For the ordinance, requirements applied the ordinance words, exemption. total other and we therefore not unconstitutional was request. The fire marshal denied affirm. appealed this decision to Third & Catalina marshal, VOSS, J., chief, fire upheld the concurs. fire who Safety Advisory Board. Fire then to the EHRLICH, concurring. Judge, specially several Third & Catalina The Board allowed majority that the While I concur with plan acceptable try to out an months to work trial summary judgment grant of when none Department, but Third & appropriate, I believe that court was forthcoming, affirmed the deter- it also time- claims are constitutional Catalina’s & Cata- fire marshal. Third mination their I not reach barred. therefore would to the Phoenix Coun- appealed lina then County Maricopa E.g., Patterson v. merits. cil, unanimously determined 153, 159, 865 P.2d Office, 177 Ariz. prior administrative supported evidence Sheriffs (court constitu- (App.1993) will avoid determinations, upheld the de- and therefore legal principles questions when other tional Third & Catalina’s exemption of an nial controlling). finally are filed a building. Third & Catalina challenging the complaint in the trial court City Council enacted the Phoenix When constitutionality the ordinance. high- requiring all commercial the ordinance July on was enacted sprinklers, 22 The ordinance buildings fire to install rise 1987; five complaint was filed almost affected, including the build- buildings were later, July There exists a years Associates. Third & Catalina owned limitations, Ariz.Rev. four-year statute provided that The ordinance 12-550; Ranch 57 v. section plan compliance StatAnn. were to submit owners Yuma, (App. P.2d 113 February completion by and a schedule the run- 1986), is whether and so the issue on the installation and that all work an admin- tolled while ning of the statute was completed by December to be was I think not. sought. redress was received a istrative requested and Third & Catalina of from requested variance to submit to extend the time 45-day variance could not Fire Prevention Code Phoenix It then sub- plan until March its “minor,” the been considered any sense have incomplete plan, which apparently mitted an available, and the con- type only fur- of variance subsequently took no rejected. It was have been re- never could issues challenge either stitutional comply or to ther action to bodies but' city’s administrative solved plan or the ordinance rejection of its circumstance only by In neither the courts. prosecution Only after a criminal years. two rem- been an administrative could there have for its against Third & Catalina initiated was remedy Therefore, no administrative edy. an company initiate comply did the failure to expensive alter- more asbestos-free but than the originally had chosen asbes- 4. Third & Catalina gypsum board. of concrete or natives tos-containing retardant rather Monokote fire variance; directly it is as a minor pursued pursuit thus construed need been and its have In contrary purpose of the Fire Code. running of to the have served to toll the could not fact, acknowl- fact, Third & Catalina gives the counsel for In the record the statute. re- argument that the relief expires edged at oral impression delay until the lease quested indeed “substantial.” strategy. in 2003 is the 1.2(h)(a) Moreover, the record apparent it is from Pursuant to Article section notice at the & was on Fire Prevention Code that Third Catalina of Phoenix (“Fire administra- Code”), instigation throughout only marshal is autho- the fire granted that it could not be grant party proceedings minor to a tive rized to “a variance” sought. it At provision type and extent demonstrating that a Fire Code relief 4, 1990, hearing May hardship marshal’s unnecessary personal causes “an the fire told that the substantially limiting preservation Third & counsel was Catalina’s only authority provide “to enjoyment property rights.” mi- fire marshal has Such a it comes to code may granted if it some minor relief nor variance not be would when you materially persons working And to state that want be detrimental to issues. in a general, requirement sprinklers vieinity public or to welfare in from the total harmony building, is not a minor variance if the is not in with the or variance code____” added.) Thus, (Emphasis be- purpose safeguarding life and Fire Code’s Code, minor, type of variance Fire Art. cause it is not property from fire. See 1.2(h). exemp- requested by Third & Catalina—an sec. The fire marshal’s determination requirement install regarding may appealed tion from the a minor variance chief, Advisory sprinklers building—is not even avail- to the fire the Fire Board, city finally Granting Fire such council and to the able under the Code. only materially courts. Id. relief would not have been persons working in detrimental to both statute, interpreting In an ordinance or we general public or near the and the give ordinary plain meaning, their or words injury the increased risk of or welfare due to superfluous and we should not render words fire, death in the of a but it also would event See, insignificant interpretation. or our harmony protective been in have e.g., Department Arnold v. Arizona Nevertheless, purpose of the Fire Code. Services, Health 775 P.2d pursue non- Third & Catalina continued to (1989); Patterson, 177 Ariz. at remedy. existent administrative 865 P.2d at 817. The drafters of the inconsistency in specifically thé “minor” There is also an Third & Code included word argument regarding describing type of variance that is Catalina’s exhaustion Generally, subject remedies. to administrative review. This word its administrative size, indicating party has been defined as a lesser must exhaust its available administra See, importance. e.g., permit appro extent or Random tive remedies order agency factu Dictionary English Language, priate administrative to make a House ed., Unabridged apply expertise par 2d New al record and Webster’s Davidson, E.g., Unabridged Dictionary, ticular Parisi v. Universal 2d ed. situation. (1983). Therefore, 92 S.Ct. 31 L.Ed.2d a minor variance would 405 U.S. extent, However, a well-settled importance of little there is be a variance requirement; in a essentially exception or inter to this situation one that would not alter pursuit of an administrative reme purpose ultimate of the Fire when the fere with the cir 45-day dy of be useless or futile under the example, For a extension would Code. cumstances, may bypass plan compliance, party a the adminis time to submit an initial of altogether bring griev sought by granted process and its such as the one and to trative directly minor to the trial court. Minor Third & in would be a ances Catalina 170, 172, However, P.2d County, 125 Ariz. from the Fire Code. Cochise variance Waddell, by Estate Bohn v. requested relief Third & Catalina of (App. city’s essentially exemption from the total 1992). way be sprinkler requirements, can no

Third & it to Catalina claims that wanted pursue the administrative remedies available required by All this shall be work section Code, under the it was Fire and that entitled on, before, completed or 1994. December However, so. to do Third & Catalina also February On or the commer- before remedy claims that the administrative was representatives building cial owners and/or inadequate it deprived because Third Ca-& provide shall Prevention Division Fire process talina of constitutional due various compliance plan with a formulated for and ways, including hearings that the were not completion required for of the schedule work fair, that the administrative bodies re- never completion herein. The schedule shall indi- alistically its only considered claims but re- accomplished in each cate the work to be prior viewed whether the bodies had suffi- year specif- for and shall include benchmarks support cient evidence to their determina- completed ic to be work December tions, process provide full did not for to be 1990 and December 1992 with work witnesses, cross-examination of and complete by December enough permitted present not to time phase'shall to priority The within the first be grievances Third & before bodies. Cata- provide sprinkler protection to all automatic lina fact voiced its frustration with the areas of each commercial hazardous system during pro- administrative entire Depart- the Fire as determined point inescap- cess. These claims all ment. that, although going through able conclusion process, the administrative Third & Catalina plan subject be to re- formulated shall inadequate knew that to it was address approval by view of Fire Division cognizance, company’s this concerns. With be for Prevention. Work shall reviewed proceeded Third & Catalina should have compliance Af- approved schedule. application the trial court to contest the ter December it shall unlawful be the exception the ordinance under to the rule firm, corporation main- any person, for or Indeed, ap- of exhaustion. it could have permit tain or be maintained commercial

proached court with its constitutional occupancy human work challenge contemporaneously insis- complete. is not pursuit tent of administrative on the * July #Ord. Added only hardship present if basis the con- Phoenix, Arizona Prevention Fire Code. the appropriate stitutional issues to tribunal running for resolution and avoid the B APPENDIX It statute limitation. did not. Phoenix, City of Arizona reasons, foregoing I For do believe FIRE PREVENTION CODE statute of limitation was tolled dur- 1.2(h). 1, SECTION APPEALS ARTICLE ing foray Third into the & Catalina’s admin- PROCEDURE. process. istrative

(a) FIRE Fire Marshal MARSHAL. A APPENDIX designee may grant a or his minor variance provisions and to this code or ordinance Phoenix, Arizona ex- relating thereto when there amendments FIRE CODE PREVENTION hardship sub- unnecessary personal ists an * limiting SECTION 28.40 FIRE PROTECTION- en- stantially preservation resulting joyment property rights EXISTING HIGH-RISE BUILDINGS interpretation of this Code a liberal buildings having used All commercial floors provisions and amendments relat- ordinance human more occupancy located than not be thereto. This minor variance shall grade at lowest feet above the level unless found authorized it is that: Department pro- shall vehicle access (1) Authorizing minor throughout approved an automatic variance tected enjoy- necessary preservation for the sprinkler system installed in accordance with rights; and ment of substantial 14.4 of this Code. Section hearing and recommendation Following a Board, any per- Advisory Safety by the Fire (2) will Authorizing minor variance of the of the the decision with son dissatisfied hazardous to materially detrimental or not be City may appeal to the Council. then Board working in the vicini- residing or persons made shall be Council appeal An neighborhood, adjacent property, to the ty, to (10) days the Fire working ten within general; public welfare or the hearing. The time- Safety Advisory Board (3) minor variance will Granting of the upon may be modified above frames stated sought to be harmony purposes with good cause. showing of provisions by or ordinance attained this code (e) ag- Any persons REVIEW. COURT relating thereto. and amendments Council, of the grieved a decision (b) THE FIRE DEPART- OF CHIEF days after the any may at time within Any person claims that he has MENT. who filing decision of the Council’s Fire aggrieved by the decision of the been Department, of the Fire office of the Chief Fire may appeal to the Chief of the Marshal Superior Court of appeal file an with the (5) designee within five Department or his following methods of County by the various following of the working days the decision procedures in Arizona as appeal or review Fire Marshal. applicable statutes forth set (c) BOARD. FIRE ADVISORY SAFETY Arizona. State of Any may appeal from a decision person Fire Department Fire to the the Chief of the

Safety Advisory Board when it is claimed following condi- one or more of the tions exists:

(1) intent of the Codes or ordi- The true has been incor- nances described this Code 895 P.2d 125 rectly interpreted; or LEASING, INC., a California ALL-WAY (2) or ordi- provisions of the Codes Plaintiff-Appellant, corporation, fully apply; nances do (3) arbitrary A decision is unreasonable or Kelly, Kerry alternates or new materials. applies

as it KELLY and Lorraine wife, Defendants- husband and applicant accompany written shall his Appellees. Safety Advisory Board appeal to the Fire $50, except appeal if is a fee of 92-0150. No. CA-CV pertains of and to a made the owner Arizona, Appeals Court residence, family single the fee shall be $25. 1, Department E. Division Department Fire shall de- The Chief of the general posit sum in the fund said Sept. City. May Denied Review (d) If the Fire CITY COUNCIL.

Advisory the deci- Board dissatisfied with Department Fire the Chief of the

sion of by the hearing and recommendation after a Board, may appeal to the Board then final. decision shall be Council whose final any person

If is dissatisfied Department of the Fire of the Chief decision by the hearing and recommendation after Board, appeal may then the Board whose Council

Chiefs decision final. decision shall be

Case Details

Case Name: Third & Catalina Associates v. City of Phoenix

Court Name: Court of Appeals of Arizona

Date Published: Aug 18, 1994

Citation: 895 P.2d 115

Docket Number: 1 CA-CV 93-0337

Court Abbreviation: Ariz. Ct. App.