Posted by: Patricia Salkin | May 9, 2020

AZ Appeals Court Holds City and Neighbors Had 30 Days from Board’s Meeting to File Their Petition for Judicial Review

This post was authored by Matthew Loescher, Esq.

A property owner applied to the City of Phoenix for a permit and zoning variances to allow a medical marijuana dispensary on the property. Numerous neighbors objected, including the appellants. On April 5, 2018, the Board of Adjustment overturned the Zoning Administrator’s decision denying the application and approved the permit and variances. On April 30, the appellants requested that the Board reconsider its decision based on manifest error. The Board next met on May 3, and documented the request for reconsideration in the minutes of that meeting but noted: “No motion to reconsider was made by a Board member; previous BOA decision stands.” On May 31, the appellants filed a special action in the superior court. The Superior Court granted the motion to dismiss, concluding that the statutory review period began to run on April 5. 

At the outset the court acknowledged that § 9-462.06(K) and Zoning Ordinances § 303(C)(4) contemplated that unspecified “proceedings on the decision sought to be reviewed” may continue while a special action is pending in the superior court: Specifically, it found that “Filing the complaint does not stay proceedings on the decision sought to be reviewed, but the court may, on application, grant a stay.” However, the court determined that the possibility of “proceedings”—which could refer to legal proceedings or conduct undertaken pursuant to legal decisions—that could proceed at the same time as judicial review, did not necessarily mean there was a legislative intent that agency reconsideration and judicial review must be concurrent. Thus, the court held that pursuant to § 9-462.06, appellants had thirty days from the Board’s May 3 meeting to file their petition in the superior court. As the petition was filed within that period, the Superior Court had jurisdiction. 

Houser v City of Phoenix, 463 P. 3d 232 (AZ app. 4/9/2020)

 


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