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Hart v. Bayless Inv. & Trading Co.

Supreme Court of Arizona

November 25, 1959

James G. HART, James E. Lindsay, and James T. O'Neil, as members of and constituting the Board of Supervisors of Maricopa County; Virgil Crismon, Hugh Nichols, C. A. Grant, Charles R. Bathurst, Sanford F. Morrison, Percy Smith, Russell A. Shedd, and H. S. (Casey) Abbott, as members of and constituting the Planning and Zoning Commission of Maricopa County; Laurence H. Whitlow, as Executive Director of the Planning and Zoning Commission of Maricopa County; Donald W. Hutton, as Zoning Inspector of Maricopa County; and Roy Thornbrugh, as Chief Deputy Zoning Inspector of Maricopa County, Appellants, John F. Long, Home Building, Inc., a corporation, Intervenor-Appellant,
v.
BAYLESS INVESTMENT & TRADING COMPANY an Arizona corporation, Appellee.

Page 1102

Rehearing Denied Jan. 12, 1960.

Page 1103

[86 Ariz. 382] Charles C. Stidham, Maricopa County Atty., Paul Levie, Deputy County Atty., Laurence H. Whitlow, and W. E. Patterson, Phoenix, for appellants.

Stephen B. Rayburn; Stahl, Murphy & Blakely, Phoenix, for intervenor-appellant.

Moore & Romley, Phoenix, for appellee.

Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank and Philip M. Haggerty, Phoenix, amici curiae, for O'Malley Investment & Realty Co. and O'Malley Security Corporation.

UDALL, Justice.

This is an appeal from a judgment of the trial court holding invalid the zoning ordinances which regulate the use or property within the unincorporated areas of Maricopa

Page 1104

County. The appellee, Bayless Investment and Trading Company, brought a suit in which it was alleged, inter alia, that the zoning ordinances were of no effect because the requisite notice of hearings--both before the Zoning Commission and the Board of Supervisors--had not been given. The trial court, agreeing with this contention, found the ordinances to be void. This appeal was taken by the Board of Supervisors, Zoning Commission, and other named defendants below.

The two basic ordinances struck down by the court below are those upon which the existing structure of zoning regulation in Maricopa County has been built: the first was purportedly adopted by the Board of Supervisors on January 25, 1951; the second, intended to supersede the first, was approved by the Board on June 2, 1952. The authority of the Board of Supervisors, constituting the legislative body of the county, to adopt zoning ordinances is undisputed. This power is derived from 'The County Planning and Zoning Act of 1949', Ch. 58 S.L. '49 (now A.R.S. sections 11-801 to 11-830), the validity and constitutionality of which is neither involved nor questioned in any way in these proceedings. However, it must be recognized that the authority granted to the county supervisors in this respect is limited by the terms of section 3 thereof (now A.R.S. § 11-802), which requires that a zoning ordinance, to be effective, must be enacted in accordance with the provisions of the Zoning Act. It is asserted by the appellee (plaintiff below) that the Maricopa County ordinances must be held to be of no effect because of failure of the Board to comply with the requirements of this enabling Act. The primary question now before us on appeal is whether the trial court was correct in sustaining this contention and invalidating said ordinances.

[86 Ariz. 383] For convenience, the parties will be designated as follows: the appellee, Bayless Investment and Trading Company, will be called plaintiff; the Board of Supervisors will be referred to as the Board, and the Maricopa Zoning Commission as the Commission. The various appellants and the intervenor-appellant, as a group, will be denominated defendants. 'The County Planning and Zoning Act of 1949' will be called the Zoning Act; and the two ordinances in question will be referred to as the 1951 Ordinance and the 1952 Ordinance respectively.

Plaintiff (Bayless) in its amended complaint stated three sparate causes of action: (1) it sought injunctive relief requesting, inter alia, that the Zoning Ordinance be declared to be of no force and effect and that defendants be enjoined from prosecuting plaintiff under the enforcement provisions of the Zoning Act (Sec. 18; now A.R.S. § 11-808); (2) mandamus was asked to compel the Zoning Inspector and his deputy to forthwith issue to plaintiff a building permit for the erection of a shopping center on Lot 1 of section 30, Township 2 North, Range 2 East, herein referred to as the 'Bayless Parcel'; (3) by certiorari a judgment was sought declaring that Supervisor James T. O'Neil, in casting his vote against granting the necessary proposed zoning change, had acted arbitrarily, capriciously, and oppressively. It would appear, however, that stipulations entered into by the parties pending this appeal have made these special forms of relief unnecessary. Therefore, as we see it, the plaintiff, at this stage of the proceedings, is interested solely in obtaining a decision from this Court upholding the declaration of the invalidity of the zoning regulations by the lower court.

In their answer to the amended complaint the defendants, in addition to asserting the legality of the ordinances, raised certain affirmative defenses which challenged the standing of this particular plaintiff to attack the ordinances in question. The allegations were that, even if the ordinances were defective, the plaintiff was barred from contesting their validity because of laches, estoppel, waiver, and lack of equity. However, after setting out these defenses, the defendants also presented a counterclaim asking for a judical determination of the question whether the ordinances

Page 1105

were valid and enforceable. This counterclaim for declaratory relief sequarely presented the issue of the validity of the ordinances in question. Therefore the objections raised as to the plaintiff's standing--whith appear to be bottomed upon respectable authority--have become immaterial. It is true that this court will not rule upon the constitutionality or validity of an existing law or ordinance if the legal issues presented can be disposed of on some other grounds. In this case, however, we have no such alternative. Both plaintiff and defendants[86 Ariz. 384] have asked for an adjudication of the question whether either of the county zoning ordinances is effective. Therefore, we shall proceed to a resolution of that question without considering the now irrelevant issue of the standing of this plaintiff to challenge the validity of said ordinances.

Before dealing with the merits of plaintiff's contentions we must first dispose of a point raised by the defense. Defendants take the position that since the ordinances are valid on their face, this court cannot--or will not--inquire into any alleged defects in the procedures leading up to final adoption by the Board. For this proposition we are cited to the so-called 'enrolled bill rule', succinctly set out in Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854, 865, viz.:

'There is a line of authorities adhering to the rule that an enrolled bill imports verity, and it is conclusively presumed that the constitutionally prescribed details of legislative procedure leading to its passage and enrollment have been complied with. 50 Am.Jur., Statutes, section 149. Arizona has adopted this rule * * *'.

The principle referred to is one of comity between the separate constitutional branches of government. It is based on the premise the the judiciary should be duly respectful of the legislature, since the two departments are of equal dignity in the constitutional scheme. In this case, however, we are not dealing with the constitutionality of a legislative enactment, but rather with the validity of a county ordinance. The authority of a county board of supervisors is in no way parallel to that of the legislature. It is a recognized principle of constitutional law that constitutions are not grants of, but limitations on, the powers of the legislature; that is, the legislature has all those powers not specifically precluded by constitutional terms. Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436; Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808; Giss v. Jordan, 82 Ariz. 152, 309 P.2d 779. The law-making powers of the county, on the other hand, are entirely derivative. The Board of Supervisors can exercise only those powers specifically ceded to it by the legislature. Associated Dairy Products Co. v. Page, 68 Arix. 393, 206 P.2d 1041; Maricopa County v. Southern Pacific Co., 63 Ariz. 342, 162 P.2d 619; Hartford Accident & Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d 328; Board of Supervisors of Apache County v. Udall, 38 Ariz. 497, 1 P.2d 343; Board of Control of State of Arizona v. Buckstegge, 18 Ariz. 277, 158 P. 837. By the Zoning Act, certain authority was conferred upon the Board, but subject to those express conditions imposed by the same Act. An attempted exercise of that authority without compliance with the statutory conditions precedent is utterly void and of no effect. [86 Ariz. 385] It is true that where there is no factual evidence presented to show that such an ordinance was not properly adopted, such an enactment is entitled to the presumption of regularity which attaches to all official acts. Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138; Cf. Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. However, when, as here, facts are shown which rebut that presumption, the courts will exercise their jurisdiction to determine whether the necessary statutory prerequisites have been complied with.

The Zoning Act--as originally enacted in 1949--required that two separate public hearings be held prior to the adoption or amendment of a zoning ordinance: one before the Zoning Commission, after which the Commission's recommendation might be

Page 1106

referred to the Board (Sec. 8) (now A.R.S. § 11-822); then a second hearing before the Board, preceding the enactment into law of the ordinance (Sec. 9) (now A.R.S. § 11-823). In each case the statute specified the notice of the hearing which must be given:

Sec. 8--'* * * the commission shall hold at least one public hearing thereon, after giving at least fifteen days notice thereof by publication in a newspaper of general circulation in the county seat. * * *'

Sec. 9--'* * * At least fifteen days notice of the hearing [by the Board] shall be given by one publication in a newspaper of general circulation in the county seat.'

Section 2, the definition section (now A.R.S. § 11-801), defines 'newspaper of general circulation in the county seat' as: '* * * a daily newspaper if one is published in the county seat. If no daily newspaper is published, a weekly newspaper may be used.' It should be noted that the ordinances in question concern only Maricopa County, of which the county seat is Phoenix, where two daily newspapers are published.

Chronologically stated, the following are the steps taken in the purported adoption of the ordinances in question:

1951 Ordinance:

A. Zoning Commission:

Notice of hearing published: May 23, 1950, in ...


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