Posted by: Patricia Salkin | December 22, 2020

AZ Appeals Court Holds Administrative Review Act Did Not Provide a Jurisdictional Basis for Plaintiff’s Complaint Regarding Conditional Use Permit to Operate a Private Cemetery

This post was authored by Matthew Loescher, Esq.

Plaintiff Hall lived in Happy Jack, Arizona. After another resident applied for a conditional use permit to construct and maintain a private cemetery in Happy Jack, several members of the community attended public meetings and wrote letters to the Coconino County Planning and Zoning Commission to oppose to the permit. The Commission approved the request, and Hall appealed the Commission’s decision to the Coconino County Board of Supervisor. After the Board rejected Hall’s challenge, Hall filed a complaint against the applicant and the Board in the Superior Court. The Superior Court then granted the Board’s motion to dismiss the complaint.

On appeal Hall contested the Superior Court’s determination that it lacked subject matter jurisdiction to consider her request for judicial review. The court found that subsection (G) of the Administrative Review Act (“the ARA”), read in context, provided for only limited judicial review of a board of supervisors’ final decision concerning the punishment for a zoning violation. Since the statute’s limited judicial review provision did not encompass a board of supervisors’ decision to approve or deny a conditional use permit, the court held that it did not authorize judicial review under the ARA. As such, the ARA did not provide a jurisdictional basis for Hall’s complaint and the Superior Court therefore lacked subject matter jurisdiction over this claim.

Hall next argued the against the Superior Court’s finding that her claim for declaratory relief failed to provide a valid basis for jurisdiction and state a claim upon which relief could be granted. In reaching its decision, the Superior Court determined that Hall had failed to identify the proximity of her property to the cemetery site. Furthermore. the court found Hall’s claim that the cemetery diminished her property’s value was “speculative,” and therefore insufficient to establish a viable claim for relief. Even assuming the truth of these allegations that Hall held a specific and definite interest in the rezoning of the proposed cemetery site and suffered a real and actual harm from the issuance of the conditional use permit, the court found that Hall failed to identify any information she was unable to present for the Commission or Board’s consideration due to the alleged procedural noncompliance. Accordingly, the court held that no justiciable controversy existed, and the complaint failed to state a cognizable claim for declaratory relief.

Hall v Coconino County Board of Supervisors, 2020 WL 7587117 (AZ App. 12/22/2020)

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