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Midway Enterprises, Inc. v. Krucker

Supreme Court of Arizona

June 25, 1958

MIDWAY ENTERPRISES, Inc., a corporation, Petitioner,
v.
Herbert F. KRUCKER, Judge of the Superior Court of Arizona in and for the County of Pima, Respondent.

Page 298

[84 Ariz. 288] Hall, Catlin & Jones, Tucson, for petitioner.

Harry H. Haynes and Jack G. Marks, Tucson, for respondent.

WINDES, Justice.

Pursuant to the provisions of the county planning and zoning act of 1949 (A.R.S., sections 11-801 to 11-830) the board of supervisors of Pima county enacted a zoning ordinance which became effective February 16, 1953. By reason of authority granted under the provisions of this ordinance petitioner Midway Enterprises, Inc., operates a drive-in theater. Thereafter petitioner made application to the zoning board of adjustment for territorial expansion of its facilities and business. Certain interested parties objected to the granting of the application. After hearing, the adjustment board granted the application. The interested parties under the provisions of A.R.S., section 11-807, appealed the matter to the superior court of Pima county, the respondent herein. Both parties moved for summary judgment. The court granted appellants' motion and rendered judgment setting aside the action of the adjustment board and in effect denying petitioner the right to expand as requested. We issued certiorari to test the jurisdiction of the respondent court to render the judgment.

Citation of authority is unnecessary for the well established principle that we do not by the use of certiorari test the correctness of a judgment pronounced in the legitimate exercise of jurisdiction. We only judge the power of the court to render the questioned judgment. The facts are not materially disputed. The argument of the respective parties involves the interpretation by the adjustment board and the respondent of certain provisions of the zoning ordinance and A.R.S., section 11-830, relating to the right to expand what is [84 Ariz. 289] spoken of in both the statute and the ordinance as a 'nonconforming use'. Section 11-830 reads:

'A. Nothing contained in any ordinance authorized by this chapter shall:

'1. Affect existing uses of property or the right to its continued use or the reasonable repair or alteration thereof for the purpose for which used at the time the ordinance affecting the property takes effect.

* * *

* * *

'B. A nonconforming business use within a district may expand if such expansion does not exceed one hundred per cent of the area of the original business.'

So far as material, section 304 of the zoning ordinance reads:

Page 299

'Non-Conforming Uses Exempted: As specified in Section 16 of the County Planning and Zoning Act of 1949 (Section 17-1916, Arizona Code of 1939), the provisions of this Ordinance shall not affect existing uses of property or the right to its continued use or the reasonable repair or alteration thereof for the purpose for which used at the time this Ordinance becomes effective, or for any other use of the same or a more restrictive classification. A non-conforming business use within any district or zone shall have the right to expansion, provided it does not exceed 100% of the area of the original business.'

To the extent that it is relevant section 2406 of the ordinance states:

'Plans For Non-Conforming Use: Any owner of land zoned under this Ordinance who shall file in writing with the Planning and Zoning Commission within 180 days after the effective date of this Ordinance a plan of development for such land including uses not permitted by the zoning, shall be issued a special non-conforming hardship use permit by the Board of Adjustment for said proposed development, or any part thereof, at any time within 2 years from the effective date of this Ordinance; * * *'

The material facts are that at the time the zoning ordinance became effective the drive-in theater was not in existence, and that in accordance with the provisions of section 2406, supra, permission was given to construct and operate the same. Before the adjustment board and in the trial court on the appeal the position of the interested parties (appellants therein) was that under the proper interpretation of A.R.S., section 11-830, and section 304 of the ordinance [84 Ariz. 290] the only businesses that can be allowed to expand after the adoption of the ordinance are those in existence at the time of its effective date. On the other hand petitioner contended that the right to expand was not so limited and would be applicable as well to what is designated as a 'special ...


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