William P. HAZARD, Petitioner,
The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PLMA, andHerbert F. Krucker, Presiding Judge thereof, Respondents, and Carl Shurtz, Real Party in Interest.
[82 Ariz. 212] May, Lesher & Dees, Tucson, for petitioner.
Scruggs & Rucker and E. J. Valeski, Tucson, for real party in interest.
UDALL, Chief Justice.
Petitioner, William P. Hazard, instituted this original proceeding in certiorari against respondents, the superior court of the State of Arizona, in and for the County of Pima, and Honorable Herbert F. Krucker, presiding judge thereof, for the purpose of testing the legality of an order that, in effect, dismissed petitioner's appeal from the action of the Board of Adjustment of Pima County Zoning District No. 1, in granting a permit to one Carl Shurtz for the operation of a 'sand and gravel pit'. Shurtz was permitted to intervene as a defendant in the superior court proceeding, and he appears in this court as the real party in interest. For convenience the applicant for the writ will be designated petitioner, the court and judge will be styled respondents, and Carl Shurtz will be called by his surname.
The procedural steps giving rise to the instant petition for certiorari may be briefly yet comprehensively stated as follows: 1. Shurtz is the owner of certain patented ground in Sec. 27, Twp. 13 South, Range 14 East, of the G & S. R. B. & M., which lies in and adjacent to the Rillito Wash that is north of the city of Tucson, and since the year 1950 a sand and gravel pit had been operated thereon. On July 26, 1954, Shurtz filed an application for a permit to operate a sand and gravel pit on the premises which, under the zoning ordinances of Pima County, were closed to such use except by special, conditional permit. The application was denied by the Zoning Inspector because under section 2404 of the County Zoning Ordinance it required a special permit from the Board of Adjustment, District No. 1, of Pima County.
2. Shurtz then appealed to the Adjustment Board for such special permit, which was granted on August 12, 1954.
[82 Ariz. 213] 3. Certain persons affected appealed from the Board's action by filing a complaint on appeal in the Superior Court, naming the Board of Adjustment as defendant. Petitioner Hazard, a property owner in the area, was granted leave to intervene as a party plaintiff, and he thereafter filed a complaint in intervention which took the form of an appeal from the Board's action. The complaint also charged Shurtz with the maintenance of a public nuisance and sought injunctive relief on that basis. Shurtz was permitted to intervene, and he filed an answer to the Hazard complaint wherein, inter alia, it was alleged his activities in the area constituted 'mining operations' that are specifically exempted from the provisions of the County Planning and Zoning Act of 1949, Sec. 16, Chap. 58, L.1949, now A.R.S. § 11-830, subd. A (2).
4. A pre-trial conference was held before the respondent judge at which counsel for all of the parties participated; it was there stipulated and agreed that there were three basic law questions to be submitted for determination before proceeding further or considering questions of fact that might thereafter be stipulated to. These questions were: (a) In the light of the zoning ordinances as adopted by the board of supervisors of Pima County, does the law authorize the granting of a sand or gravel pit in an S.R. (suburban ranch) zone at all? (b) Is a sand and gravel pit, such as is being operated by Shurtz, 'mining' within the concept or purview of the zoning Act of 1949, supra? (c) Is this particular operation, as carried on by Shurtz, a sand and gravel pit as contemplated by the law or is it a rock crushing or a processing plant?
All parties were further agreed that the respondent judge might personally inspect the premises where these operations were being carried on as it was thought this would be more enlightening than any oral testimony. However, for the benefit of the reader, we submit a short description of the operations as testified to by Shurtz:
'We have a silent drag line-no motors-electric, that pulls this sand from 600-foot angle in this river up this ramp into a hopper-which feeds into this hopper, makes a right angle
turn into this drum which washes this material with 150 gallons of water per minute. It goes over a screen which devides it into three different sizes. From there the coarsest goes into a crusher, it's crushed down to size and re-run over the belt back in to be graded into different bins. These belts take the material after the bins are full and takes them out and stockpiles them in piles to be used and hauled away.'
Shurtz further stated, 'We mine sand and gravel for public sale and for use in our (cement block) plant.'
[82 Ariz. 214] The questions of law involved were thoroughly briefed by counsel and the court thereafter, on September 7, 1955, entered an order, the pertinent parts of which read:
'The first question-namely, 'Does the law authorize the granting of a sand or gravel pit in an SR zone at all?'-need not be answered because the Court feels, and I think attorneys for both sides will agree, that the second question-that is, 'Is a sand and gravel pit mining?'-should be answered in the affirmative.
'With this answer to the second question-that is, 'The operation is mining'-then the operation of the sand and gravel pit in question is not subject to the zoning law at all and the proceeding before ...