IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
EMMETT McLOUGHLIN REALTY, ) 2 CA-CV 2001-0198
INC., and QUIK-MART STORES, INC., ) DEPARTMENT A
)
Plaintiffs/Appellants, ) OPINION
)
v. )
)
PIMA COUNTY, )
)
Defendant/Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20003514
Honorable Char les V. Harrington, Judge
AFFIRMED
Ethan Steele and Jeffrey M. Neff Tucson
Attorneys for Plaintiffs/ Appellants
Barbara LaWall, Pima County Attorney
By Amelia Craig Cramer and Christopher Straub Tucson
Attorneys for Defendant/Appellee
Patricia A. Or ozco, Yuma County Attorney
By Gregory T. Torok Yuma
Attorneys for Amicus Curiae
Yuma County
Jorden, Bischoff, McGuire & Rose, P.L. C.
By Douglas A. Jorden and Michele A. Hentrich Phoenix
Attorneys for Amici Curiae
American Planning Association
and the Arizona Chapter of the
American Planning Association
B R A M M E R, Presiding Judge.
¶1 The question presented in this appeal is whether A. R.S. § 11-829(F), now (G),
which proscribes counties from rezoning land in a manner that restricts the permitted uses without
the landowner’s permission, violates the Arizona Constitution. 1 As did the trial court, we find the
“anti-downzoning” statute unconstitutional and, therefore, affirm its ruling granting partial
judgment on the pleadings.
Background
¶2 In 1998, the legislature added subsection (F) to § 11-829. 1998 Ariz. Sess. Laws,
ch. 55, § 1; 1998 Ariz. Sess. Laws, ch. 204, § 10. Subsection (F) pr ovided:
The legislature finds that a rezoning of land that changes the
zoning classification of the land or that restricts the use or reduces
the value of the land is a matter of statewide concern and such a
change in zoning that is initiated by the governing body or zoning
body shall not be made without the express written consent of the
property owner. The county shall not adopt any change in a zoning
classification to circumvent the purpose of this subsection.
¶3 In April 2000, the Pima County Board of Supervisors considered and approved a
county-initiated rezoning of a parcel of land owned by Emmett McLoughlin Realty, Inc. , and
Quik-Mart Stores, Inc. (collectively, McLoughlin), from CB-1 to a combination of SR and CR-2
zoning. Although numerous business uses are permitted within the former zoning classification,
1
The parties focus their arguments on § 11-829(F)’s downzoning clause, but the statute also
provides that counties may not, without a property owner’s consent, initiate “a rezoning of land
that changes the zoning classification of the land.” Although this appears to limit all county-
initiated rezoning, we confine our discussion, as did the parties, to the subsection’s effect on
downzoning.
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the latter two permit only residential uses. McLoughlin did not consent to the rezoning and filed
this action challenging Pima County’s downzoning of the property. Pima County admits its
“legislative act of downzoning [the property] was undertaken without the express written consent
of the owners of the property, in contr avention of” § 11-829(F), but contended in its motion for
partial judgment on the pleadings, made pursuant to Rule 12(c), Ariz. R. Civ. P. , 16 A. R.S.,
Pt. 1, that the subsection’s consent provision is an unconstitutional delegation of legislative
authority. The trial court agr eed and, after finding that the consent provision had been the impetus
for adopting subsection (F), held the subsection unconstitutional and, citing Rule 54(b), Ar iz. R.
Civ. P., 16 A. R.S. , Pt. 2, entered partial judgment on the pleadings in the county’s favor. This
appeal followed.
The Owner Consent Provision
¶4 A motion for judgment on the pleadings tests the sufficiency of the complaint and
should be granted if the complaint fails to state a claim for relief. Giles v. Hill Lewis Marce, 195
Ariz. 358, 988 P.2d 143 (App. 1999). The issue we consider here is whether § 11-829(F) is
constitutional, a question of law subject to our de novo review. See Holly v. State, 199 Ar iz. 358,
18 P.3d 152 (App. 2001). In deference to the legislature’s lawmaking authority, we begin with
a presumption that the statute is constitutional. Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d
854 (1949); Flood Control Dist. of Maricopa County v. Gaines, 202 Ariz. 248, 43 P.3d 196 (App.
2002). Indeed, if a statute can be constitutionally construed, we must adopt that construction.
Blake v. Schwartz, 202 Ar iz. 120, 42 P.3d 6 (App. 2002).
¶5 “The legislative authority of the State shall be vested in the Legislature . . . .”
Ariz. Const. art. IV, pt. 1, § 1(1). Our courts, however, have condoned the legislature’s
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delegation of certain of its powers under appropriate circumstances. Among the examples of
permissible delegation of powers by the legislature is the delegation of zoning powers to cities and
counties found in A. R.S. §§ 9-462 through 9-462. 08 and 11-801 through 11-876. See
Transamerica Title Ins. Co. v. City of Tucson, 157 Ar iz. 346, 757 P.2d 1055 (1988); Anderson
v. Pima County, 27 Ariz. App. 786, 558 P.2d 981 (1976); see also Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). The parties do not dispute that
zoning decisions are legislative in nature, see Mehlhorn v. Pima County, 194 Ariz. 140, 978 P.2d
117 (App. 1998), but disagree on whether those decisions, or the ability to frustrate them, may
be delegated to private individuals.
¶6 McLoughlin first contends § 11-829(F) is not a delegation of authority to property
owners but merely constitutes the legislature’s withdrawal of a portion of the counties’ zoning
power. The county points out, however, that each county has “a statutory duty to create a
comprehensive plan in coordination with municipalities and to zone in coordination with
municipalities in urban areas. ” See A.R. S. §§ 11-806 and 11-825(C)(4). A county’s planning
power is not merely ancillary to its ability to rezone; the two powers are interdependent. Only
with the authority to rezone pr operty can a county effectively make the extensive planning
determinations required of it, such as is contemplated by the Urban Planning–Growing Smarter
Act. See 1998 Ariz. Sess. Laws, ch. 204, §§ 1, 6-10; § 11-806. When it enacted § 11-829(F),
the legislature neither revested in itself the zoning authority over pr operty within counties’
jurisdictions nor withdrew the counties’ planning powers. Because it did not withdraw portions
of counties’ zoning authority by enacting the subsection, the legislature cannot effectively exercise
the counties’ zoning powers McLoughlin argues it ostensibly withdrew.
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¶7 In contrast to McLoughlin’s suggestion, the subsection affirmatively grants property
owners the ability to prevent counties from initiating downzoning of the owners’ property, see
§ 11-829(F) (county-initiated downzoning prohibited “without the express written consent of the
property owner” ), ther eby effectively delegating to those property owners the downzoning
authority that formerly reposed in counties. However, “[i]t is a well established theory that a
legislature may not delegate its authority to private persons over whom the legislature has no
supervision or control. ” Industrial Comm’n v. C & D Pipeline, Inc., 125 Ar iz. 64, 66, 607 P.2d
383, 385 (App. 1979); see Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,
122, 49 S. Ct. 50, 52, 73 L. Ed. 210, 214 (1928) (holding unconstitutional a zoning law that
purported to give landowners who were “ not bound by any official duty, but [we]re free to
withhold consent for selfish reasons or ar bitrarily and [could] subject [a neighboring landowner]
to their will or caprice” authority to prevent a par ticular use on a neighbor’s land); People ex rel.
Chicago Dryer Co. v. City of Chicago, 109 N.E.2d 201, 206 (Ill. 1952) (“The legislatur e cannot
abdicate its functions or subject citizens and their interests to any but lawful public agencies, and
a delegation of any sovereign power of gover nment to private citizens cannot be sustained nor
their assumption of it justified.” ); 8 Eugene McQuillan, Municipal Corporations § 25.35, at 111
(3d ed. 2000) (“ [Z]oning powers may not be delegated to private parties or pr operty owners. ”);
83 Am. Jur . 2d Zoning and Planning § 615 (1992); see also FM Properties Operating Co. v. City
of Austin, 22 S. W.3d 868, 877 (Tex. 2000) (state law allowing certain landowners to exempt their
properties from municipal water requirements unconstitutionally delegated legislative power to
landowners whose “pecuniar y interest in developing their land to realize profit may be inconsistent
with or repugnant to the public interest”).
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¶8 McLoughlin contends, however , that, instead of delegating to owners the ability
to legislate, the subsection merely allows owners to waive a restriction established by the
legislature, that is, a general prohibition on county-initiated downzoning. As Pima County points
out, this argument highlights the distinction between two historical lines of authority in this area.
The first, the “ waiver” line, is typified by Thomas Cusack Co. v. City of Chicago, 242 U.S. 526,
37 S. Ct. 190, 61 L. Ed. 472 (1917), in which the Court upheld a city ordinance allowing a
majority of property owner s to waive a general prohibition against the erection of billboar ds in
residential neighborhoods. In doing so, the Cour t noted the statute did “not [constitute] a
delegation of legislative power, but [wa]s . . . a familiar provision affecting the enforcement of
laws and ordinances. ” Id. at 531, 37 S. Ct. at 192, 61 L. Ed. at 476. Courts have generally
distinguished such “waiver ” r egulations from ones requiring an owner to obtain the consent of
neighboring property owner s before taking land-use planning action. In Eubank v. City of
Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156 (1912), for example, the Court struck down
a city ordinance allowing a majority of property owners to establish neighborhood setback
requirements.
¶9 In the second line of authority, the “ consent” line, the Illinois Supreme Court
addressed the distinction in Chicago Dryer Co. The Illinois legislature had delegated to municipal
corporations the authority to name streets. In response to Hagerty v. City of Chicago, 195 N.E.
652 (Ill. 1935) (naming of streets a legislative function), the legislature had amended the street-
naming statute to require a municipal corporation to change a str eet’s name it if received a petition
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containing the signatures of sixty percent of the street’s pr operty owners. The court found the
amended statute’s effect was
to give the property owners unbridled discretion of what the law
shall be, and, once they have made that deter mination, the
corporate authorities become a mere automatic register of their
action and the will of the property owner s is given the effect of law.
Stated simply, here the provision in reference to the consent of the
abutting owners affects the enactment of the law rather than its
execution. Thus construed, the decision of a group of property
owners, in an admittedly legislative field, is made to prevail over
that of the corporate author ities who represent the entire population
. . . without regard for the necessity, beneficence or reasonableness
of their action.
109 N.E.2d at 205 (citations omitted). As such, the court said, the law constituted “legislative
delegation in its most obnoxious form.” Id.
¶10 The county also relies on Brodner v. City of Elgin, 420 N.E.2d 1176 (Ill. App. Ct.
1981), which we find helpful to our discussion. There, the City of Elgin adopted a municipal
ordinance requiring applications for rezoning to be accompanied by the written consent of the
owner of the property to be rezoned. Over the protests of several property owners, the city filed
and adopted applications to rezone the owners’ parcels. The owners sought a judicial declaration
that the zoning amendments were invalid because the city had failed to obtain their consent. In
upholding the trial court’s dismissal of the complaint, the Illinois appellate court held that the
owner consent provision was an unconstitutional delegation of the city’s legislative zoning
authority because it “confer [red] upon the owner of the proper ty the absolute discretion to decide
that no rezoning shall ever occur . . . despite the fact that the City [might] be effecting a
comprehensive zoning plan in pursuit of the common good. ” Id. at 1178.
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¶11 The central question under these cases in classifying whether a statute such as
§ 11-829(F) falls within the consent or waiver line of authority is whether the legislative body
permissibly delegated its legislative authority. Because the owner consent provision in the
subsection affects a rezoning’s enactment as opposed to its execution, § 11-829(F) cannot be
classified a waiver statute. See Chicago Dryer Co. Similar to the ordinance at issue in Brodner
and the statute at issue in Chicago Dryer Co., § 11-829(F) is a consent statute that
unconstitutionally permits a proper ty owner to withhold consent from such a proposed r ezoning
based solely on his or her self-interest. In doing so, the property owner is unaccountable for
frustrating the public health, safety, or welfare because the county’s board of supervisors has no
recourse. See A.R. S. § 11-251(30); 11-802.
¶12 McLoughlin also argues, however, that the legislature intended § 11-829(F) to
create a type of vested right in zoning classifications. Under the vested rights doctrine, a property
owner who materially acts in reliance on an issued building or special use permit may continue
to act in conformance therewith, notwithstanding arbitrary governmental withdrawal or
cancellation of the permit. Town of Paradise Valley v. Gulf Leisure Corp. , 27 Ar iz. App. 600,
557 P.2d 532 (1976). Although McLoughlin suggests no material reliance here and points to no
occasion in which the legislature has by implication expanded this equitable doctrine, we need not
decide the issue because the legislative history accompanying § 11-829(F)’s adoption contains no
suggestion the subsection was intended to expand property owners’ vested rights to include zoning
classifications. As we have already discussed, the narrow br eadth of the legislation instead
demonstrates no legislative intent to withdraw counties’ downzoning authority; by implication, as
the trial court found, the legislature’s central purpose in enacting § 11-829(F) was adoption of the
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owner consent provision. Moreover, we question whether expanding the vested rights doctrine
in this manner could be upheld as being substantially related to the public’s health, safety, and
welfare, see Euclid; Rotter, because the subsection’s restriction applies only to county-initiated
downzonings. Under such a system, any rights the legislature arguably might have intended to
vest by enacting § 11-829(F) would be abrogated upon either a municipality’s annexation of the
owner’s proper ty or the incorpor ation of a municipality including that property.
Severability
¶13 McLoughlin also contends that, if the owner consent provision is unconstitutional,
it is nonetheless severable from § 11-829(F), permitting the subsection’s remainder to be enforced.
We will not declare an entire statute unconstitutional if, after the unconstitutional portions have
been excised, the r emaining portions may be interpreted consistently with the constitution, see
Randolph v. Groscost, 195 Ar iz. 423, 989 P.2d 751 (1999), and it clearly appears the legislature
would have enacted the remainder without the unconstitutional portion. State Compensation Fund
v. Symington, 174 Ar iz. 188, 848 P.2d 273 (1993).
¶14 As Pima County suggests, and as McLoughlin acknowledges, without the owner
consent provision, the remainder of the subsection would prohibit all county-initiated downzoning.
As we have already discussed, nothing in the legislative history suggests the legislature adopted
§ 11-829(F) intending to completely withdraw counties’ zoning powers or to enact a total
prohibition on county-initiated downzoning. Instead, we can only infer from the legislative history
that the legislature’s purpose in adopting the subsection was protecting property values through
the owner consent provision. Because the legislature did not intend the subsection to be applicable
without the owner consent provision, we need not determine whether the remainder of the
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subsection may be independently enforced. See Symington. We accordingly agree with the trial
court that the entire subsection is invalid.
¶15 Affirmed.
________________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge
CONCURRING:
_______________________________________
M. JAN FLÓREZ , Judge
_______________________________________
JOSEPH W. HOWARD, Judge
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