Agenda - Planning Commission - 11/02/2017

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September 25, 2017 I Volume 11 I Issue 18 Zoning Bulletin setback line, frontage requirements, and lot size restrictions. Under Arizona statutory law and the City's zoning ordinance, an area vari- ance may be granted where there are "special circumstances" or "hard- ship" such that strict application of the zoning ordinance would "deprive the property of privileges enjoyed by other property of the same classification in the same zoning district." (A.R.S. § 9- 462.06(G)(2); City of Phoenix Zoning Ordinance § 307(9)(a)-(d).) However, a finding of special circumstance does not justify a variance when the circumstances are self-imposed by the applicant or property owner. (A.R,S. § 9-462.06(H)(2); City of Phoenix Zoning Ordinance §§ 303(B)(2)(b), 307(A)(9)(a)-(b),-(10)(b).) The City's Zoning Administrator denied Jachimek's applications. Jachimek then appealed to the City's Board of Adjustment (the "Board"). The Board conditionally approved Jachimek's requested variance. In doing so, the Board found that "special circumstances" ap- plied to the Property that were "not created by the owner or applicant, but rather were created in part by growth in the city itself." Specifi- cally, the Board found that prior eminent domain activities had rendered the Property "dissimilar to other properties in a reasonably close radius," including setbacks, lot size, and parking restrictions. A competing pawn shop, Pawn 1st, LLC ("Pawn"), filed a special action in superior court challenging the Board's variance decision. Ultimately, the superior court ruled in Jachimek's favor and dismissed Pawn's complaint. The court found that sufficient evidence supported the Board's decision to grant Jachimek's area variance. Pawn appealed, and the court of appeals reversed. The court of ap- peals held that any special circumstances "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." Jachimek appealed. DECISION: Judgment of Court of Appeals vacated. Judgment of Superior Court affirmed. Disagreeing with the court of appeals finding that the special cir- cumstances here were self-imposed by Jachimek's decision to pursue a pawn shop use at the Property, the Supreme Court of Arizona upheld the Board's grant of a variance to Jachimek. In so concluding, the court first found that "[t]he record support[ed] the Board's findings that the lot size, the building's limited setback from the public sidewalk, and the parking restrictions constitute[d] special circumstances justifying an area variance." The court found this was because "the Property's unique characteristics create exceptional practical difficulties." "Th[ose] characteristics and the strict applica- tion of the zoning regulations uniquely diminish[ed] the Property's 10 © 2017 Thomson Reuters