Agenda - Planning Commission - 07/21/2016

Home

June 10, 2016 I Volume 10 1 Issue 11 Zoning Bulletin purchase commercial property zoned C-3 in the City of Phoenix (the "City"). Under the City's zoning ordinance, pawn shops were an al- lowed use in a C-3 zone, but the wall of a pawn shop had to be located at least 500-feet from a residential district. Jachimek applied to the City for a variance from the 500-foot distance requirement. The City's Zoning Administrator denied Jachimek' s variance application. Jachimek appealed and the City's Zoning Board of Adjustment (the "Board") approved the variance. Pawn 1st, LLC ("Pawn") owned a competing pawn shop business. Pawn appealed the Board's decision to grant the variance. The Superior Court affirmed the Board's decision. Pawn again appealed the granting of the variance. Pawn argued that Jachimek's request for a variance was not an "area" variance but was actually an unauthorized "use" variance because it allowed the prop- erty to be developed for an impermissible use namely the operation of a pawn shop within 500 feet of a parcel zoned residential. Pawn also argued that the Board improperly granted the variance because any special circumstances were created by Jachimek selecting the particu- lar property for use as a pawn shop. DECISION: Judgment of Superior Court reversed, and matter remanded. The Court of Appeals of Arizona, Division 1, first held that the vari- ance that was granted to Jachimek by the Board was an area variance, not an unauthorized use variance as Pawn had argued. The court explained the distinctions between "area" and "use" variances: "A 'use' variance is one which permits a use of land other than that allowed by the zoning ordinance. Thus, a variance which permits a commercial use in a residential district is a 'use' variance. `Area' variances involve such matters as setback line, frontage requirements, height limitations, lot size restrictions, density regulations and yard requirements." Here, the court found that under the plain language of the City's zoning ordinance, operation of a pawn shop was a permitted use in a C-3 commercial district, subject only to a distance limitation. Pawn had argued that the variance sought by Jachimek "[did] not seek to modify set -back lines, frontage requirements, height limitations, lot - size restrictions, density regulations, or yard requirement." Thus, Pawn contended, the distance separation setback in this case could not be an area variance. The court disagreed, finding that the 500-foot distance of separation requirement was not unlike a set -back line requirement. The court said either the use was permitted or not; there were no degrees of prohibition on the uses. Therefore, the court rejected Pawn's argument that the requested variancewas a "use variance" because a pawn shop was an allowed use in a C-3 zoning district, "irrespective of the 500- foot distance requirement." The court concluded that the Board's deci- 6 © 2016 Thomson Reuters