PAWN 1ST, LLC, an Arizona limited liability company, Plaintiff/Appellant,
CITY OF PHOENIX, a political subdivision of the State of Arizona; BOARD OF ADJUSTMENT OF THE CITY OF PHOENIX; and BOB FORD; EMILIO GAYNOR; PATRICK PAUL; ALEX TAUBER; YVONNE HUNTER; BETTINA NAVA; and EMILY RYAN, as members of and constituting the Board of Adjustment of the City of Phoenix, Defendants/Appellees, WILLIAM JACHIMEK dba CENTRAL PAWN, Real Party in Interest/Appellee
from the Superior Court in Maricopa County. No. LC
2010-000701-001. The Honorable Lisa Daniel Flores, Judge.
Baker, Phoenix, By Thomas M. Baker, Counsel for
City Attorney's Office, Phoenix, By Daniel L. Brown,
Robert A. Hyde, Paul M. Li, Brad Holm, Counsel for
& Bell, PC, Phoenix, By James O. Bell, Counsel for Real Party
Patricia A. Orozco delivered the opinion of the Court, in
which Presiding Judge Margaret H. Downie and Judge Maurice
A. Orozco, Judge
Pawn 1st, LLC (Pawn) appeals from the superior court's
judgment dismissing its complaint for special action review
of a decision by the Board of Adjustment of the City of
Phoenix (City) and its members (collectively, the Board)
granting a variance to real party in interest William
Jachimek, doing business as Central Pawn (Jachimek). Because
we conclude that Jachimek's application for a variance to
operate a pawn shop within 500 feet of a residential district
does not meet the necessary requirements established by
statute and ordinance, we reverse the ruling and remand.
AND PROCEDURAL BACKGROUND
The underlying facts and procedural history of this case were
stated in Pawn 1st, L.L.C. v. City of Phoenix, 231
Ariz. 309, 294 P.3d 147 (App. 2013) ( Pawn I ).
Briefly, Jachimek entered into a lease with an option to
purchase commercial property (the Property) zoned C-3 on the
southwestern corner of McDowell Road and 32nd Street,
intending to operate a pawn shop. Id. at 310, ¶
2. The City of Phoenix Zoning Ordinance (Zoning Ordinance)
requires that the exterior walls of a pawn shop business in a
C-3 district be located at least 500 feet from a residential
district. Phx., Ariz., Zoning Ordinance § 623.D.132.b
(2016). The City's Zoning Administrator denied
Jachimek's request for a variance from the 500-foot
distance requirement, but on appeal, the Board approved the
variance. Pawn I, 231 Ariz. at 310, ¶ ¶
4-5. Pawn, a competing pawn shop business, filed a complaint
in superior court for special action review of the
Board's decision. Id. at 310, ¶ 7.
In Pawn I, we reversed the superior court's
determination that Pawn lacked standing to bring a statutory
special action challenging the Board's grant of a
variance to Jachimek and we remanded for consideration of the
special action. Id. at 313, ¶ 25. On remand,
the superior court denied Pawn's requested relief,
the variance granted to Jachimek was an area variance and not
a use variance. The variance at issue was a deviation from
the zoning ordinance that imposed a dimensional requirement
for pawn shops, i.e. that the exterior walls of the building
in which the pawn shop is located shall be at least five
hundred (500) feet from a residential street. Section
623(D)(132) of the Phoenix Zoning Ordinance. This zoning
ordinance did not prohibit pawn shops; for that reason,
granting a variance was not a " use variance."
Because the Board of Adjustment is authorized to consider
area variances, its decision to grant the area variance to
Jachimek was not ultra vires.
For reasons fully stated in the written and oral arguments of
Defendant City of Phoenix and Real Party in Interest
Jachimek, the Court finds that there is evidence to support
the Board's decision to grant the area variance.
The superior court affirmed the Board's decision and
entered judgment dismissing Pawn's complaint with
prejudice. Pawn appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and
Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 and
-2101.A.1 (West 2016).
Standard of Review
We review de novo issues involving the interpretation of a
statute or a city ordinance. See Whiteco Outdoor
Advert. v. City of Tucson, 193 Ariz. 314, 316-17, ¶
7, 972 P.2d 647 (App. 1998). We generally defer to the
Board's decision and presume it to be correct unless it
is " not supported by substantial evidence, is contrary
to law, is arbitrary and capricious or is an abuse of
discretion." A.R.S. § 12-910.E; see also
Whiteco, at 317, ¶ 7. If the record contains
credible evidence to support the Board's decision, it
must be affirmed. See Austin Shea (Ariz.) 7th
St. and Van Buren, L.L.C. v. City of Phoenix, 213 Ariz.
385, 392, ¶ 29, 142 P.3d 693 (App. 2006); Murphy v.
Town of Chino Valley, 163 Ariz. 571, 574, 789 P.2d 1072
However, as to issues of statutory interpretation, we are
free to draw our own conclusions as to whether the Board
properly applied the law. See Murphy, 163
Ariz. at 574. Further, we may " substitute [our]
judgment for the Board's assessment of the legal effect
of the underlying facts." Whiteco, 193 Ariz. at
317, ¶ 7. " [We] may substitute our opinion for
that of the superior court since we are reviewing the same
record." Arkules v. Bd. of Adjustment of Town of
Paradise Valley, 151 Ariz. 438, 441, 728 P.2d 657 (App.
In Granting the Variance, the Board Did Not Make a Change in
The Board or its Zoning Administrator " may not [m]ake
any changes in the uses permitted in any zoning
classification or zoning district." A.R.S. §
9-462.06.H.1; Phx., Ariz., Zoning Ordinances § §
303.B.2.a, 307.A.10.a. Pawn argues that Jachimek's
request for a variance is not an " area" variance
as found by the superior court, but an unauthorized "
use" variance because it allows the Property to be
developed for an impermissible use; namely, the operation of
a pawn shop within 500 feet of a parcel zoned residential. In
contrast, the City, the Board and Jachimek argue the variance
is a permissible " area" variance.
All parties cite out-of-state cases in support of their
respective arguments about whether a distance separation
limitation, such as the 500-foot requirement here,
constitutes a " use" or " area" variance.
Although the terms " use variance" and " area
variance" are not embodied in the statutes or
ordinances, we find those terms helpful in exploring and
explaining the relevant distinctions.
The distinctions between " area" and "
use" variances stem from Ivancovich v. City of
Tucson Bd. of Adjustment, in which this court addressed
the propriety of a 1968 variance request and discussed the
distinction at length. 22 Ariz.App. 530, ...