CITY OF PHOENIX, a municipal corporation; Jack Williams, Mayor of the City of Phoenix; Val A. Cordova, Dr. Joseph M. Greer, G. Wesley Johnson, David P. Jones, Faith I. North and Clarence H. Shivvers, Councilmen of the City of Phoenix; John W. Beatty, Planning Director of the City of Phoenix, and F. C. Hurst, Building Inspector of the City of Phoenix, Appellants,
Paul FEHLNER and Pola Fehiner, his wife; Jerry G. Kastner and Anita D. Kastner, his wife; Clarence L. Ashcraft; L. F. Mills and Thelma S. Mills, his wife; Byron Simonson and Meryl Simonson, his wife; Harry S. Gill and Naomi LaVerne, Gill, his wife; Howard E. Clements and Louella Clements, his wife; William M. Billings; Mary F. Mullen, a widow et al., Appellees.
Rehearing Denied Oct. 10, 1961.
[90 Ariz. 14] William C. Eliot, City Atty., Merle L. Hanson, Anis Mitchell and Charles A. Filler, Asst. City Attys., Phoenix, for appellants.
Gorodezky, Mitchell & Stuart, Phoenix, for appellees.
This case involves a challenge to the Zoning Ordinance of the City of Phoenix, as applied to the properties fronting on Thomas Road from 25th Place to 28th Street. The trial court held that the ordinance
as applied to these properties was unconstitutional. The defendant City of Phoenix has appealed from that judgment.
On April 19, 1955, the City of Phoenix annexed an area containing approximately 4.9 square miles of which the parcels here in question were only a small fraction. After extensive study the planning and zoning department of the city prepared a tentative zoning map which it presented to the zoning board. The zoning board then held extensive public hearings and after some adjustments in the tentative plan based on the objections of property holders and information gathered at the hearings the zoning board submitted to the city council a comprehensive zoning plan for the entire area. The council held further hearings and made some additional changes, then enacted the plan as modified which is Ordinance G-133. The objections of the parties to this action were fully considered at the hearings held by the city council and its zoning agencies.
At the time of annexation the two and one-half block-long strip in issue was occupied primarily by residential uses although it was a somewhat mixed area. The map of existing uses offered in evidence shows that the north side of Thomas from 26th Street to 28th Street was entirely residential except for one small contractor's office and a Dairy Queen ice-cream stand. The other half block of the north side from 25th Place to 26th Street was vacant except for a small [90 Ariz. 15] office on the northwest corner of 26th and Thomas. On the south side of Thomas from 25th Place to 28th Street one half the property was devoted to residential uses while the remaining part was primarily devoted to orange groves or other undeveloped areas. Only one parcel of land had any commercial development.
A summary of existing uses indicates that it is mixed with residential clearly predominating over all other uses combined, followed by undeveloped and agricultural uses with only minor commercial use. The properties extending north and south from Thomas Road (those abutting the disputed lots) to a depth of several blocks are clearly residential in use except for some farming or vacant uses on the south.
Further complicating the factual situation at the time of annexation and the passage of Zoning Ordinance G-133 was the fact that Maricopa County had imposed on the disputed strip of two and one-half blocks along Thomas Road a hodgepodge of zoning which included some four or five different classifications which led the trial judge to say, among other things:
'I don't know of a case that I have examined that would permit such zoning as this. The courts have said time and time again this spot zoning cannot be supported.
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'I can't imagine the people sitting by and letting this happen.'
It further appears that the Maricopa County Zoning ordinance covering this area at the time of annexation subsequently was declared void by this court for fundamental error in its attempted enactment. Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101. Thus by decree of this court there was legally no existing ordinance covering this property at the time of annexation.
Confronted with the foregoing factual situation the City of Phoenix passed Zoning Ordinance G-133 which made classifications designed to harmonize this area with its master plan while at the same time conforming as nearly as possible, without being guilty of illegal spot zoning, to the existing use of the area. The strip in question was just part of a larger section of the newly annexed area which was zoned R-5. This classification permits the broadest range of uses of any of the residential classifications. In addition to ordinary residential uses, it permits, among others, some office buildings, drive-in theaters, hotels, motels, trailer courts, hospitals and similar charitable institutions. In fact, even though the area zoned R-5 was substantially developed at the time G-133 was passed, there were only
three out of approximately thirty of the lots in question which were then being used commercially and they were granted non-conforming use permits.
[90 Ariz. 16] It is significant to note that Thomas Road is one of the arterial streets which, according to the traffic map in evidence, carry substantially larger volumes of traffic than other streets lying between the arteries. The maps in evidence show that the entire northeast quadrant of the city is served by a grid of arteries generally about eight blocks apart and running both north-south and east-west. The zoning and existing use maps in evidence show that with very little exception the zoning and uses between arterial streets is limited to the more restrictive residential uses, principally R-1 and R-2. At the same time and with commendable consistency the zoning along the arterial streets is distributed in regular patterns between R-5, which is the least restrictive of the residential uses and different only in a limited degree from the more restrictive commercial uses, and the most restrictive type commercial uses, C-1 and C-2. Some of the properties fronting on arterial streets are, however, zoned for the more restrictive residential uses including R-1. There are only one or two instances where parcels are zoned either R-5 or C-1 or C-2 which do not front on an arterial street.
The pattern of distribution between R-5 and the commercial zones is substantially this: at and near the intersection of arterial streets on the arterial grid the properties are zoned for commercial use and between those intersections are located the R-5 zones. When the fact is borne in mind that R-5 is next to C-1 on a continum of zoning classifications which includes ten different zones the sense of the zoning pattern becomes more clear even to persons not trained in the science of zoning who must rely on the cold appellate record for their information.
It is especially significant that the maps in evidence show that the zoning of the parcels in dispute is fully consistent with the patterns established throughout an infinitely larger area of the city. Even more significant is the fact that Thomas Road itself from Central Avenue to 56th Street (a distance of fifty-six blocks) is zoned predominantly for R-5 use. Along this entire distance the only departure from R-5 zoning is for some small strips of R-1 (most restrictive residential use) and some (much less than half the properties fronting on Thomas Road) commercial zoning at the intersections of the arterial grid.
We think that even a superficial look at the exhibits in evidence completely rids the zoning here employed of any stain of possible spot zoning so frequently condemned by the courts. We cannot see that strip zoning as here employed is subject to condemnation. It follows a sensible pattern and to condemn it would be to condemn as well the application of commercial zoning to this area which is the alternative zoning which the complaining property holders [90 Ariz. 17] contend should be employed rather than R-5.
The problem of what contitutes an appropriate zone is primarily for the legislature. It is not the prerogative of the courts to substitute their judgment for that of the body which our system of government vests with primary responsibility for determining how best to serve public health, safety and welfare. The only role which the courts can properly play in the decision making once the properly constituted legislative body has spoken is to insure that the legislature has not exceeded the broad bounds set by the constitutions of the State and of the United States. As recently as 1954 the Supreme Court of the United States indicated in a unanimous decision that the limits within which the legislative judgment on public welfare must be left free are broad indeed. The court said:
'The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community
should be beautiful as well as healthy, spacious as well as clean, wellbalanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.' Berman v. Parker, 348 U.S. 26 33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27, 38.
While the Supreme Court in the Berman case was dealing with the Due Process clause of the Fifth Amendment which restricts federal action we think for the purposes here under consideration that the Due Process Clause of the Fourteenth Amendment is no more restrictive of state action when exercising its police power to promote the general welfare. See State exrel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217.
The concept that a man owns his property from the center of the earth to the limits of the sky to use as suits his own fancy is not now and has not ever been entirely true. The doctrine of nuisance which has always been a restriction on land use is as ancient as the title to any land in this country. Of course in the beginning it dealt only with the more gross and obvious kinds of nuisance. But urban disease like disease of the body has been subjected to much more sophisticated examination in recent years. Now the germ theory of urban diseases such as slums, blight and others is well established. Where once the thought of an injection with a needle to prevent smallpox would have horrified even the most sophisticated in society we now accept it as a matter of course and may constitutionally compel every citizen to submit to [90 Ariz. 18] the treatment in the interest of the general welfare. To suggest otherwise would be laughable in our times. The fact that a similar development in the treatment of urban diseases has been much slower cannot in any way justify us in drawing constitutional limits which prevent the discovery and application of preventative medicine to this kind of public disease. Its very complexity suggests the need for a broad range within which to operate. If in our comparatively virgin state we can prevent the laying of the first brick of a ghastly slum like those which have ulcerated great urban centers elsewhere we should consider the cost of some experimentation a matter of small import indeed.
The persons who own property fronting on Thomas Road have not right to indiscriminately ignore the impact of their development on the properties adjacent to them. The zoning employed gives them great latitude to fix their own course of development but according to the lengthy testimony of those who are qualified in zoning the negative limits placed on that choice are necessary to prevent the creeping development of undesirable conditions which ultimately would cast a ...