Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CV201000395 Honorable Stephen M. Desens, Judge Honorable Wallace R. Hoggatt, Judge.
Lewis and Roca LLP By John C. Hinderaker and Jeffrey L. Sklar Tucson Attorneys for Plaintiff/Appellee
Michael J. Massee, Benson City Attorney and Nogales Sims Murray Ltd. By Jeffrey T. Murray and Kristin M. Mackin Phoenix Attorneys for Defendants/Appellants
PHILIP G. ESPINOSA, Judge.
¶1The Arizona Supreme Court has remanded this zoning-enforcement case for this court to determine whether a mobile-home park as a whole, or only its individual constituent spaces, can be considered a nonconforming use under A.R.S. § 9-462.02(A). Stagecoach Trails MHC, LLC. v. City of Benson, 231 Ariz. 366, ¶ 17, 295 P.3d 943, 947 (2013). We have done so and conclude, as a matter of law, that a mobile-home park in its entirety is entitled to nonconforming-use status. But because the record is insufficient to determine whether the mobile-home park in this case was a nonconforming use, we remand this matter to the superior court for further proceedings.
¶2A complete factual background is provided in our supreme court's opinion. Stagecoach Trails, 231 Ariz. 366, ¶¶ 3-13, 295 P.3d at 944-46. We restate only those facts that are relevant to the issues before us.
¶3In 1998, the City of Benson amended § 16 of its zoning regulations to increase the setback and minimum-size requirements for spaces within Benson mobile-home parks. Initially, the City did not apply the requirements of the amended regulations to parks that were already operating. Between 2003 and 2010, the City granted the Stagecoach Trails mobile-home park (Stagecoach) permits to replace thirty-four of its mobile homes with newer, often larger models that did not comply with applicable setback requirements. Then, in late 2009, the City notified mobile-home park operators, including Stagecoach, that it would begin applying the amended version of § 16 when individual homes were replaced and that any future permit applications would be evaluated under the requirements of that section.
¶4In January 2010, the City denied Stagecoach's application for a permit to install a new and larger mobile home on one of its spaces (space 27). In the denial letter, the City's zoning administrator explained that before the permit could be granted, Stagecoach would have to show, among other things, that the applicable setback requirements would not be violated. Stagecoach appealed the permit denial to the Benson Board of Adjustment, arguing that the entire park is a nonconforming use under § 9-462.02(A) and that it was therefore entitled to replace individual homes without relinquishing nonconforming-use status and being required to comply with the zoning requirements then in force. The board of adjustment rejected this argument and affirmed, agreeing with the zoning administrator that the mobile-home park's constituent spaces individually were nonconforming uses.
¶5Stagecoach filed a special-action complaint in superior court, appealing the board of adjustment decision and seeking invalidation of the amended § 16. Based in part on the City's concession that it had not strictly complied with statutory notice requirements when adopting the amendment to § 16, the court invalidated that section. The City then sent two additional letters to Stagecoach, one in July and one in September, again denying the permit application for space 27 and explaining that even without regard to the now invalidated § 16, the space's new site plan violated various other provisions of the zoning regulations. The superior court retained jurisdiction over the case and held an evidentiary hearing, after which it reversed the board of adjustment's ruling and ordered the City to issue a permit for the mobile home on space 27.
¶6The City appealed, and we affirmed in part and reversed in part, concluding, inter alia, that Stagecoach had failed to exhaust its administrative remedies because it never had presented to the board of adjustment the issue of whether the mobile home on space 27 violated zoning regulations left in force after § 16 was invalidated. Stagecoach Trails MHC, LLC. v. City of Benson, 229 Ariz. 536, ¶ 19, 278 P.3d 314, 318-19 (App. 2012). We reasoned that the superior court's jurisdiction had ended with the invalidation of amended § 16 and it was necessary for the board of adjustment to address whether space 27 would have been a nonconforming use with respect to the provisions left in force after the invalidation. Id.
¶7Our supreme court granted review and vacated this court's decision,  concluding that Stagecoach was not required to exhaust its administrative remedies because returning to the board of adjustment would have been futile, and holding that the superior court, therefore, had properly retained jurisdiction over the matter. Stagecoach Trails, 231 Ariz. 366, ¶¶ 16-17, 25, 295 P.3d at 946, 948. The supreme court remanded the case for this court to consider whether a mobile-home park as a whole, or an individual space within the park, is properly considered a nonconforming use, and any other "relevant, unaddressed issues." Id. ¶ 25. We do so now.
¶8When a use of property predates the adoption of a zoning regulation prohibiting it, such use is known as a legal nonconforming use and is entitled to certain constitutional and statutory protections. Rotter v. Coconino Cnty., 169 Ariz. 269, 271, 818 P.2d 704, 706 (1991); see also § 9-462.02(A). As such, a zoning regulation may not be applied retroactively to extinguish a preexisting use of property "for the purpose used at the time the ordinance or regulation takes effect"; nor may a regulation affect the owner's right to make "any reasonable repairs or alterations in buildings or property used for such existing purpose, " unless the municipality purchases or condemns the property. § 9-462.02(A). Courts interpret these protections narrowly, however, because nonconforming uses are not favored by the law and "should be eliminated or reduced to conformity as quickly as possible"; but such elimination may be accomplished only "within the limits of fairness and justice." Rotter, 169 Ariz. at ...