Posted by: Patricia Salkin | May 5, 2016

AZ Appeals Court Finds Decision Granting Variance to Competing Business Exceeded Board’s Statutory Authority

Pawn 1st, LLC appealed 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 and its members, granting a variance to Pawn, doing business as Central Pawn. Specifically, Jachimek challenged a decision of zoning board approving a competing business’s application for zoning variance from an ordinance requiring the exterior walls of a pawn shop to be located at least 500 feet from a residential district. The superior court denied Pawn’s requested relief, finding that the variance granted to Jachimek was an area variance and not a use variance.

Pawn first argued that Jachimek’s request for a variance was not an “area” variance as found by the superior court, but an unauthorized “use” variance because it allowed the Property to be developed for an impermissible use; namely, the operation of a pawn shop within 500 feet of a parcel zoned residential. Here, the Board’s decision to grant the variance to operate a pawn shop within 500 feet of a residential district in a C–3 commercial district did not allow a use not permitted in the zoning classification, irrespective of the 500–foot distance requirement. The court therefore found that the request for a variance was an “area” variance.

Pawn next argued the Board exceeded its jurisdiction and authority in failing to find the necessary criteria required by statute and ordinance before approving the variance. The court found that the discontinuation of the nonconforming use and the effects of the eminent domain action constituted “special circumstances” warranting a variance from the distance limitation applicable to pawn shops. The eminent domain proceedings that reduced the Property’s size, parking, and setback deprived the property of privileges enjoyed by other property of the same classification in the same zoning district” as required by A.R.S. § 9–462.06.G.2 and did not apply to other properties in the district  as required by § 307.A.9.a of the Zoning Ordinance. However, any special circumstances here were created by Jachimek and/or the Property owner by selecting this particular property to use as a pawn shop, in violation of the prohibition against self-imposition. Accordingly, the court found the Board exceeded its statutory jurisdiction and authority in granting the application for a variance.

Pawn 1st, LLC v City of Phoenix, 2016 WL 1427649 (AZ App. 4/12/2016)

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