dissenting:
The majority opinion holds that once a subdivision plat is validly recorded, the right of the landholder to develop the land in accordance with the lot sizes shown on the plat becomes permanently and irrevocably vested, and can never be changed by subsequent enactment or amendment of the governing agency’s subdivision or zoning ordinances. The majority recognizes that the result it reaches is not shared by most other jurisdictions, and states that “our view might well be different but for the decision in Robinson,1 but since our Supreme Court has spoken on the subject, we follow its holding.” Since, in my opinion, the majority has misinterpreted the issue involved in Robinson, I respectfully dissent.
In Robinson, the Arizona Supreme Court was not required to, and did not, reach the abstract question of whether the vested rights of a subdivider in a validly recorded subdivision were absolute and therefore not subject to subsequently enacted zoning or subdivision ordinances. All that Robinson involved was an interpretation of an exception clause contained in the zoning ordinances which were applicable to plaintiff Robinson’s property. This exception clause excluded from the zoning ordinance’s lot size restrictions, lots which were “legally established as such when the same came under the influence” of the zoning ordinance’s minimum lot size restrictions. As stated by the court in Robinson:
“Plaintiff contends that by recording her plat she had acquired ‘legally established’ lots within the meaning of the County Zoning Ordinance at a time when the area was zoned ‘Rural’, that such classification permitted lots considerably smaller than one acre, and that lots legally established under County jurisdiction were legally established building lots in the City in accordance with City Ordinance § 400(c).
* * * * * *
“Unless the plaintiff’s lots fall within the exception provided for ‘legally established’ lots, therefore, the City Building Inspector was justified in denying the requested building permits. It is to this latter question that we now turn.” 101 Ariz. at 449, 450, 420 P.2d at 924, 925.
The court then discussed the term “legally established” as used in the exception clause, and determined that within the meaning of that clause, the plaintiff’s subdivision plat was “legally established” when it was initially recorded, and that approval of the Board of Supervisors was not required, stating:
“We find that, in the absence of any express statutory requirements, as soon as a plat is properly recorded, the lots therein become “legally established” within the meaning of both the zoning ordinance and common understanding. As we have said before, this court will interpret a statute (or ordinance) in such a way to give it a fair and sensible meaning.” 101 Ariz. at 452, 420 P.2d at 927.
From the foregoing it is apparent that the Arizona Supreme Court in Robinson did not purport to rule upon the question of what the plaintiff’s rights would have been were it not for the exception clause there involved.2
Since the Arizona Supreme Court has not spoken upon the issue presented in this case, I would affirm the trial court’s holding that under the facts of this case, appellants were not entitled to develop their subdivision lots in contravention of the lot size restrictions set forth in the city’s subsequently enacted zoning ordinances.
. Robinson v. Lintz, 101 Ariz. 448, 420 P.2d 923 (1966).
. As indicated above, the Arizona Supreme Court stated in Robinson that the City Building Inspector would have been justified in denying the requested building permits if the plaintiffs lots did not fall within the exception provided in the zoning ordinance. This indicates an interpretation contrary to that urged by the majority, but since it is dicta, I do not argue that it constitutes Arizona Supreme Court precedent mandating the result urged in this dissent.