This site is dedicated to the sharing of factual information about your rights as citizens of Apache County and all of Arizona. The goal of individuals supporting this site is to help you make informed decisions concerning the quality of government throughout Arizona but most especially in Apache County.
We’ve provided a number of links that we think will be useful in furthering your knowledge of your rights as citizens. Please take the opportunity to visit one or more of these sites and let us know if they were helpful to you. We also invite you to share your ideas with us and by working together we can improve our lines of communication and better communication will lead to better government.
The responsibility for good government does not rest in the hands of the elected but in the hands of the electorate. In order to ensure and maintain good government that represents the interests of the peoples it is designed to serve, it is necessary to be knowledgeable, aware and vigilant.
Knowledgeable of our rights with respect to our relationship to a Public Body.
Aware of the actions that are taken on behalf of our interests by a Public Body.
Vigilant and observant so that the actions taken by a Public Body are administered fairly and equally to all citizens over which the Public Body has jurisdiction.
Putting it rather bluntly, IF we do not begin to become more knowledgeable, aware and vigilant about the actions taken by the County Board of Supervisors, the County Clerk, the elected offices of Attorney, Recorder, Assessor and Treasurer, we will deserve the type of government that we receive.
It takes effort. It takes time. It also takes commitment by more than just a handful of fellow residents in Apache County. Each community needs to have at least one or two individuals who are willing to become involved in the effort to improve the quality of government that comes from the County Leaders. It also takes a PLAN.
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ULTRA VIRES: Definition?
See “APACHE COUNTY OFFICIALS”
examples ultra vires
See “APACHE COUNTY ORDINANCE ADOPTION”
“APACHE COUNTY PUBLISHED NOTICE PROCEDURES”
Violation of the public DUE PROCESS RIGHTS continue in Apache County.
Examples of Ultra Vires cases at the bottom of this page.
Please scroll down to read them
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Ok here is the BOS meeting minutes from the Feb.4, 1985 Apache County BOS meeting.
Read the item that says “as it is 9:00 am” zoning hearing. Then look for any other hearing for the building ordinance.
Here is the Published notices for the TWO PUBLIC HEARING for Feb.4, 1985 Yes TWO public hearing. If you did not find TWO public hearing in the minutes maybe you should be asking why? Why was they not two public hearing and if there was not how did they adopt two different ordinances????
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as of 8/31/ 2011
We have now had over 5000 hits to the site
since we started and went online Oct.2, 2009 and we continue to grow.
Thank you
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ULTRA VIRES related Arizona CASE LAW
TONY ABBOTT and KATHLEEN ABBOTT, husband and wife; MARK
FELIO and JEAN FELIO, husband and wife; DAVID W. FERRALL; LAWRENCE GARRETT and
PEGGY GARRETT, husband and wife; DREW EVAN MILES; DONALD MONTGOMERY and CLAIRE
MONTGOMERY, husband and wife; and CINDY WATERS VASQUEZ, individually and on
behalf of all persons similarly situated, Plaintiffs/Appellants,
v.
YUMA
COUNTY, ARIZONA, by and through the YUMA COUNTY BOARD OF SUPERVISORS, Its
Governing Body, Its Members: Supervisors LENORE LORONA STUART, Dist. 1; RUSSELL
MCCLOUD, Dist. 2; KATHRYN “CASEY” PROCHASKA, Dist. 3; MARCO A. “TONY” REYES,
Dist. 4; and GREGORY S. FERGUSON, Dist. 5, Defendants/Appellees.
No. 1 CA-CV 10-0239.Court of Appeals of Arizona, Division One, Department C.
May 5, 2011.Don B. Engler, P.C., Yuma, By Don B. Engler, Attorney for Appellants,
Jon R. Smith, Yuma County Attorney, Yuma, By Edward P. Feheley, Deputy County
Attorney Attorneys for Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS
AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24.
MEMORANDUM DECISION
MICHAEL J. BROWN, Judge.
¶1 Plaintiffs, owners of property located within the boundaries of a Yuma
County improvement district (“the Owners”), appeal from the superior court’s
dismissal of their special action complaint. They contend that the court
improperly applied Arizona Revised Statutes (“A.R.S.”) section 48-907 (2000) to
bar their claim. For the reasons that follow, we reverse and remand for further
proceedings.
BACKGROUND[1]
¶2 On March 26, 2009, John W. Guth and Laura Jean Guth filed a petition (“the
Petition”) with the Yuma County Board of Supervisors (the “Board”) to organize a
“General Improvement District in order to provide for common improvements from
time to time under the provisions of A.R.S. § 48-909, et seq. [Supp.
2010]” in an unincorporated portion of Yuma County. Although the petition stated
that a map depicting the area and boundaries of the proposed district was
attached, no such document was filed with the petition. The only property
description attached to the petition was a two-page, single-spaced metes and
bounds legal description.
¶3 The Board set a public hearing on the Petition for June 15, 2009. The
notice of public hearing (the “First Notice”), dated May 22, 2009, announced the
filing of the petition to establish a “General Improvement District” and
referenced the attached two-page legal description. The First Notice also
provided that “pursuant to Arizona Revised Statutes, Chapter 20, A.R.S. §
48-3421 to 48-3477 [et seq.] [2005], with all revisions, that said Board
has fixed the amount of the Petitioner’s bond and approved the same and set a
time and date for hearing said petition.” The cited statutes pertain to the
organization of irrigation water delivery districts. Some of the Owners were not
notified by mail of the public hearing.
¶4 The hearing occurred on the scheduled date, with none of the Owners in
attendance. The Board approved the establishment of General Improvement District
No. 09-03 (the “District”). On the same date, the Board scheduled a hearing for
July 6, 2009, to consider converting the District to a Road Improvement and
Maintenance District pursuant to “A.R.S. § 48-1081 [et seq.] [Supp.
2010].” The Board’s notice (the “Second Notice”) again incorporated the same
two-page legal description but did not include a plat or sketch of the subject
property. On July 6, 2009, the Board unanimously approved the conversion. In the
“Order Converting to a Road Improvement and Maintenance District,” the Board
attached a map purporting to show the District’s boundaries, as well as the
two-page legal description.
¶5 On November 18, 2009, the Owners filed a special action complaint against
Yuma County, the Board, and its individual members (collectively “the County”)
in Yuma County Superior Court. See Ariz. R.P. Spec. Act. 3 (b) . Less
than one month later, the Owners filed an amended complaint substantially
similar to the original complaint. The amended complaint alleged that neither
the notices nor the underlying Petition reasonably notified the Owners and the
public that the proposed districts could materially affect their property rights
and subject them to assessments, bond obligations, and special taxes. In
addition, the Owners alleged a violation of A.R.S. § 48-903(H) (Supp. 2010) in
light of the Guths’ failure to include a plat or sketch with the Petition, which
could have been attached to the notices. The Owners therefore sought a
declaration that the Board had acted in excess of its jurisdiction and without
lawful authority, “and that said action was void, ab initio.”
¶6 The County moved to dismiss under Arizona Rules of Civil Procedure
12(b)(1) (lack of jurisdiction) and 12(b)(6) (failure to state a claim) on the
basis that the special action complaint was not filed within the twenty-day
limitation period of A.R.S. § 48-907. The Owners responded that: (1) A.R.S. §
48-3426 (2004) gave them one year to file; (2) no statute of limitations can
prevail against public policy; and (3) based upon the County’s citation to
“A.R.S. § 48-3421 to 48-3477 [et seq.]“ in the First Notice, the only
actual notice given to the Owners by the Clerk was of a petition by the Guths,
the owners of the only existing water delivery system in Martinez Lake, to
establish an irrigation water delivery district.
¶7 Following oral argument, the superior court found that the Owners’ claim
was barred by the statute of limitations period under A.R.S. § 48-907. The court
explained that its ruling applied “even assuming that the public notice in this
case did not comply with the applicable statutes,” but failed to specify whether
it had applied Rule 12 (b) (1) or 12 (b) (6) . This appeal followed.
DISCUSSION
¶8 The Owners assert that the trial court erred when it granted the Board’s
motion to dismiss their special action because the actions of the Board were
void. In reviewing the dismissal of a complaint for failure to state a claim, we
assume the allegations in the complaint are true, and will “uphold dismissal
only if the plaintiffs would not be entitled to relief under any facts
susceptible of proof in the statement of the claim.” T.
P. Racing, L. L. L. P. v. Ariz. Dep’t of Racing, 223 Ariz. 257, 259, ¶ 8,
222 P.3d 280, 282 (App. 2009) (citation omitted).[2] We review
questions of law de novo. Id.
¶9 “The authority of a county board of supervisors is in no way parallel to
that of the legislature.” Hart
v. Bayless Inv. & Trading Co., 86 Ariz. 379, 384, 346 P.2d 1101, 1105
(1959). A county derives its power from the legislature and the board may
exercise only those powers specifically granted to it by the legislature.
Id. As such, the board must exercise the powers given to it by the
legislature in “the manner fixed by statute.” Mohave
Cnty. v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 420, 586 P.2d 978, 981
(1978) . If a board acts in a manner not recognized by statute granting
power to the board, its actions are “without jurisdiction and wholly void.”
Id. (citation omitted).
¶10 In this case, for the Board’s actions to constitute a valid exercise of
its powers, its actions must have complied with statutory requirements governing
the formation of county improvement districts. Pursuant to A.R.S. § 48-903(H), a
petition to establish an improvement district must be filed with the clerk of
the board and include “a plat or sketch indicating the approximate area and
boundaries of the district.” Amended petitions may be filed “prior to the time
of the hearing on the first petition, and shall be considered as though filed
with the first petition.” A.R.S. § 48-903(B). Here, the Petition submitted to
the Board did not include a copy of a plat or sketch, nor was there any
subsequent attempt to amend the Petition. The only property description attached
to the Petition was a two-page, single-spaced legal description, which was
plainly insufficient under the statute.
¶11 Moreover, the Board was also required to provide adequate notice to
owners of real property within the District. According to A.R.S. § 48-905(B)(1)
(Supp. 2010), the clerk of the board of supervisors is required to provide
notice of a public hearing by: (1) publishing the notice twice in a newspaper of
general circulation; and (2) mailing the notice by first class mail to owners of
property within the boundaries of the proposed district. According to the
Owners, notice was not provided to all property owners.
¶12 Accordingly, the Owners have alleged that the Board acted in excess of
its authority by failing to comply with statutory requirements, and the Owners
have alleged specific facts in support of that allegation. Therefore, the Owners
have stated claims that, if proven, could render the Board’s actions void.
See Mohave
Cnty., 120 Ariz. at 420, 586 P.2d at 981; Arkules
v. Bd. of Adjustment of Town of Paradise Valley, 151 Ariz. 438, 440, 728
P.2d 657, 659 (App. 1986) (citation omitted); see also Neil
B. McGinnis Equip. Co. v. Riggs, 4 Ariz. App. 556, 558, 422 P.2d 187, 189
(1967) (finding that county’s failure to comply with statutory requirement
for sale of property rendered “call of bids” void).
¶13 The County asserts that even assuming it failed to comply with statutory
requirements, the Owners’ claims were properly dismissed because claims brought
outside the statute of limitations period are conclusively barred. However,
statutes of limitation do not apply to void decisions of a governmental board.
See Arkules,
151 Ariz. at 440, 728 P.2d at 659.
¶14 In Arkules, plaintiffs filed a special action appealing the trial
court’s grant of summary judgment in favor of a board of adjustment regarding a
petition for variance granted by the board. Id. The trial court granted
summary judgment because the board substantially complied with notice
requirements for a variance hearing and the decision of the board to grant a
homeowner a variance from a building regulation was not an abuse of discretion.
Id. at 439, 728 P.2d at 658. This court, however, reversed the decision
of the trial court, finding that the board violated a statute from which its
power derived, thereby rendering its decision “ultra vires and void.” Id. at
440, 728 P.2d at 659. We also determined that despite plaintiff’s failure to
adhere to the applicable statute of limitations, the trial court had
jurisdiction because “the mere lapse of time does not bar an attack on a void
judgment.” Id. (citation omitted). We therefore reversed the decision of
the trial court and remanded for entry of judgment declaring the variance
invalid. Id. at 442, 728 P.2d at 661.
¶15 Viewing the allegations of the amended complaint in the light most
favorable to the Owners, the statute of limitations set forth in A.R.S. § 48-907
does not apply to bar their complaint. See Preston
v. Denkins, 94 Ariz. 214, 219, 382 P.2d 686, 689 (1963) (“Statutes of
limitations have no application to void judgments.”); Occidental
Life Ins. Co. of Cal. v. Marsh, 5 Ariz. App. 74, 75, 423 P.2d 150, 151
(1967) (“The general rule is that mere lapse of time is no bar to an attack
on a void default judgment.”) (internal citation and quotations omitted).
Accordingly, the superior court erred when it dismissed the Owners’ special
action for failure to comply with the statute of limitations.[3]
CONCLUSION
¶16 For the foregoing reasons, we reverse the superior court’s dismissal of
the Owners’ complaint and remand for further proceedings. We defer to the
superior court the Owners’ request for attorneys’ fees under A.R.S. §§ 12-348
(2003), 12-1134 (Supp. 2010), 12-1135 (Supp. 2010), and the private attorney
general or substantial benefits doctrines, to be considered pending the outcome
of the proceedings on remand.
DANIEL A. BARKER, Presiding Judge, MARGARET H. DOWNIE, Judge,
Concurring.
[1] We assume the
truth of the facts alleged in the Owners’ amended special action complaint. Yes
on Prop 200 v. Napolitano, 215 Ariz. 458, 464, ¶ 7, 160 P.3d 1216, 1222
(App. 2007) (applying the standard to a dismissed special action
complaint).
[2] Although the
superior court did not state whether it granted the motion to dismiss pursuant
to 12(b)(1) or 12(b)(6), the “proper method for raising a defense of limitation
is a motion to dismiss under Rule 12(b)(6), for failure to state a claim, not a
motion under Rule 12(b)(1), for lack of subject matter jurisdiction.” Pritchard
v. State, 163 Ariz. 427, 432, 788 P.2d 1178, 1183 (1990).
[3] Based on our
conclusion, we do not address the Owners’ argument that the trial court erred in
failing to apply the statute of limitations set forth in A.R.S. § 48-3426 (2005)
or that the doctrine of equitable tolling should be applied here.
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And yet another case
151 Ariz. 438 (1986)728 P.2d 657
Bernard ARKULES and Barbara Arkules,
Plaintiffs/Appellants,
v.
BOARD OF ADJUSTMENT OF the TOWN OF PARADISE
VALLEY and Sam DeMuro, Defendants/Appellees.
No. 2 CA-CIV 5679.Court of Appeals of Arizona, Division 2, Department B.
April 30, 1986.Review Denied October 22, 1986.439*439 Bernard Arkules,
Paradise Valley, pro se and for plaintiffs/appellants.
Charles G. Ollinger, Paradise Valley, for defendant/appellee Bd. of
Adjustment of the Town of Paradise Valley.
Beus, Gilbert, Wake & Morrill by Neil Vincent Wake and Pamela L. Vining,
Phoenix, for defendant/appellee DeMuro.
OPINION
LACAGNINA, Judge.
Sam DeMuro petitioned the Board of Adjustment of the Town of Paradise Valley
for a variance from a building regulation which would require his house to blend
with the mountain background and to be made from materials or colors which would
not unduly reflect light. The Board granted the variance, and Bernard and
Barbara Arkules filed a special action in the superior court seeking reversal of
the Board’s decision for the following reasons: 1) the notice of the Board’s
hearing on the variance was defective; 2) the Board was prohibited by its own
rules and regulations and by statute from granting a variance not pertaining to
the real property and its use and in doing so exceeded its jurisdiction; and 3)
the reasons given for permitting the color change were neither a “special
circumstance” nor “demonstrable hardship” relating to the real property as those
terms were defined by statute and by the Board’s rules and regulations.
All parties requested summary judgment alleging the dispositive facts upon
which the court could render judgment were not in dispute. The superior court
granted summary judgment in favor of DeMuro, the Board and the Town of Paradise
Valley, determining that the Board substantially complied with lawful notice
requirements for a variance hearing and that the Board’s consideration of the
request for variance and its decision were neither arbitrary, capricious nor an
abuse of discretion. The court also denied DeMuro’s motion to dismiss for lack
of jurisdiction.
We affirm the judgment of the superior court finding substantial compliance
with the notice requirements and that it had jurisdiction to hear the special
action. We reverse that portion of the judgment holding the decision to grant
the variance was not arbitrary or capricious and was lawfully granted.
ARKULES’ SPECIAL ACTION WAS TIMELY
The Board of Adjustment derives its powers from A.R.S. § 9-462.06, the
statute under which it is created. The provisions of § 9-462.06 grant the Board
certain specific powers, most of which are mandatory. In addition, there are
certain actions the Board may not take:
* * * * * *
2. Grant a variance if the special circumstances applicable to the
property are self-imposed by the property owner.
Courts have uniformly held that a board of adjustment has no powers except
those granted by the statutes creating it, Applestein
v. Osborne, 156 Md. 40, 143 A. 666 (1928); its power is restricted to
that granted by the zoning ordinance in accordance with the statute. Carini
v. Zoning Board of Appeals of the Town of West Hartford, 164 Conn. 169, 319
A.2d 390 (1972), cert. denied, 414
U.S. 831, 94 S.Ct. 64, 38 L.Ed.2d 66 (1973); Bora
v. Zoning Board of Appeals of the Town of Norwalk, 161 Conn. 297, 288 A.2d
89 (1972). The Board must act in accordance with the law or it is without
jurisdiction. See Denning
v. County of Maui, 52 Hawaii 653, 485 P.2d 1048 (1971).
Courts have termed any decision made by a board of adjustment beyond these
restrictive powers as “ultra
vires and void,” Applestein
v. Osborne, 143 A. at 669, a nullity and of no force and effect, Kaufman
v. City of Glen Cove, 45 N.Y.S.2d 53, 180 Misc. 349 (1943); Noonan
v. Zoning Board of Review of Town of Barrington, 90 R.I. 466, 159 A.2d 606
(1960); DiPalma
v. Zoning Board of Review of Town of Bristol, 72 R.I. 286, 50 A.2d 779
(1947), and “legally meaningless,” Westbury
Hebrew Congregation, Inc. v. Downer, 302 N.Y.S.2d 923, 926, 59 Misc.2d 387
(1969).
It is well settled in Arizona that the powers and duties of an administrative
agency are measured and limited by the statute creating it. Ayala
v. Hill, 136 Ariz. 88, 664 P.2d 238 (App. 1983). Under the provisions of
A.R.S. § 12-902(B), an appeal from an administrative agency may be heard even
though untimely to question the agency’s personal or subject matter jurisdiction
in a particular case. The Board of Adjustment, though structured much like an
administrative agency, acts in a quasi-judicial capacity. See Hill
Homeowners’ Association v. Zoning Board of Adjustment, 129 N.J. Super. 170,
322 A.2d 501 (App. 1974). Indeed, Arkules appeared in superior court by
special action, formerly a writ of certiorari brought in order to “control acts
beyond the jurisdiction of another body … [and] to review … the judicial
functions of a lower tribunal.” Book
Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 335, 678 P.2d 517, 520 (App.
1983).
Therefore, the effect of the void decision by the Board of Adjustment is the
same as that of any void decision by a court: “the mere lapse of time does not
bar an attack on a void judgment.” Wells
v. Valley National Bank of Arizona, 109 Ariz. 345, 347, 509 P.2d 615, 617
(1973). We have held that a void judgment does not acquire validity because
of laches. International
Glass & Mirror, Inc. v. Banco Gan. Y Agr. S.A., 25 Ariz. App. 604, 545
P.2d 452 (1976). Statutes of limitation or rules of court are not applicable
to void judgments. Preston
v. Denkins, 94 Ariz. 214, 382 P.2d 686 (1963). Therefore, Arkules was
not bound by the 30-day limit of A.R.S. § 9-462.06(J). This special action
brought within a reasonable time of learning of the variance was timely, and the
court properly denied DeMuro’s motion to dismiss for lack of jurisdiction.
SUBSTANTIAL COMPLIANCE SATISFIES NOTICE REQUIREMENTS
The Board published its notice of hearing which appeared in the Scottsdale
Daily Progress and listed the address of the property affected as “6396
North Mummy Mountain Road.” The correct address was 6936. Anyone interested, by
the exercise of reasonable diligence, could have ascertained whether his
property would be affected and in what manner, since the notice named the
applicant, the correct street and the specific nature of the request (a color
variance). North Mummy Mountain Road is only three blocks long with only five
houses. Arkules live immediately adjacent to the property for which the color
variance was granted and, at the 441*441 time the notice was published and posted, they lived
across the street from the applicant DeMuro. The notice was adequate. Chess
v. Pima County, 126 Ariz. 233, 613 P.2d 1289 (App. 1980); East
Camelback Home Owners’ Association v. Arizona F N & P, 18 Ariz. App.
121, 500 P.2d 906 (1972).
In addition to the published notice, notices were posted on and near the
subject property in compliance with A.R.S. § 9-462.06(F). The notices were
posted both on the building site and at the nearest public intersection, North
Mummy Mountain Road and Arroyo Road. The Board’s departure in this case from its
custom of mailing notices to all property owners does not render the notice
invalid. There is no statute or rule which requires mailing of the notice to
adjoining property owners. We agree with the trial court that the Board
substantially complied with notice requirements and affirm.
RULES AND REGULATIONS OF THE BOARD PROHIBIT A COLOR VARIANCE
This court must allow the Board’s decision to stand if there is some credible
evidence to support it. Ivancovich
v. City of Tucson Board of Adjustment, 22 Ariz. App. 530, 529 P.2d 242
(1974); Sevilla
v. Sweat, 9 Ariz. App. 183, 450 P.2d 424 (1969). We are not prohibited
from reviewing the evidence presented by the record filed in the superior court,
and we may substitute our opinion for that of the superior court since we are
reviewing the same record. Sevilla
v. Sweat, supra. The minutes of the hearing quoted below are
insufficient to grant the Board authority to permit the variance.
The statements which MR. DeMURO had given as the basis for his
request were reviewed in detail. MR. DeMURO gave an account of his personal
experience and aspirations in beginning the project two years ago. He said that
all of his life he had hoped to build a Mediterranean home and now he felt he
was about to see it built. He said he specifically wanted a house with columns,
and a white house. He hastened to say, he did not mean “hospital white” he meant
an off-white. He said the architecture and the entire house was designed around
his dream of a white house with columns. * * *
And further, the minutes reflect “MR. DeMURO stated that he did not think
white blends with the mountain, but he felt it brought out the beauty of the
mountain.”
The Board had no authority to grant a variance to allow Mr. DeMuro’s personal
preference for a color which would enhance the design he chose for his house.
The provisions of A.R.S. § 9-462.06 which give the Board authority read as
follows:
G. A board of adjustment shall:
* * * * * *
2. Hear and decide appeals for variances from the terms of the
zoning ordinance only if, because of special circumstances applicable to the
property, including its size, shape, topography, location, or surroundings, the
strict application of the zoning ordinance will deprive such property of
privileges enjoyed by other property of the same classification in the same
zoning district. Any variance granted is subject to such conditions as will
assure that the adjustment authorized shall not constitute a grant of special
privileges inconsistent with the limitations upon other properties in the
vicinity and zone in which such property is located.
* * * * * *
H. A board of adjustment may not:
* * * * * *
2. Grant a variance if the special circumstances applicable to the
property are self-imposed by the property owner.
The color of a house is not a factor pertaining to the real property or which
would deprive the property of uses or privileges enjoyed by other property of
the same zoning classification. Permission to use an unapproved color not
compatible with the requirements of the mountain 442*442 building regulations also violated the following
rules and regulations of the Board which prohibit a color variation.
Sec. V. Pre-requisites for Granting of a
Variance
All of the following requirements must be met before the Board of
Adjustment may lawfully grant a variance:
A. There must be “special circumstances” or factors pertaining to
the real property which do or will deprive such property of certain benefits,
uses, or privileges enjoyed by other property of the same zoning classification
in the Town. The “special circumstances” or factors may be size, shape,
topography, location, or the nature of surrounding property.
B. A variance cannot be granted if the “special circumstances” or
factors causing the applicant’s need for a variance were created by the property
owner or occupier or a previous property owner.
C. A variance cannot be granted if it would constitute a grant of
special privileges inconsistent with the legal limitations upon other properties
in the vicinity and zone in which such property is located.
* * * * * *
F. “demonstrable hardship” must relate to the land as opposed to the
particular owner or occupant.
The Board’s stated reasons for permitting the variance clearly demonstrate
that the color variation had nothing to do with the size, shape, topography or
location of the property and could not be a special circumstance pertaining to
the real property. The permission to change the color in violation of the
mountain building regulations was not necessary to relieve DeMuro from a
demonstrable hardship but rather to serve as a personal convenience. Statutory
provisions and the rules and regulations of the Board specifically state that
any hardship must relate to the use of the land as opposed to the owner. A
personal hardship does not justify a variance. Hagman, Urban Planning and Land
Development Control Law at 204 (1971). A variance is “not a personal exemption
from the enforcement of zoning regulations.” Garibaldi
v. Zoning Board of Appeals, 163 Conn. 235, 237, 303 A.2d 743, 745
(1972).
There was no evidence before the Board to support any lawful reason for the
exercise of its power to grant a color variance. We find the Board proceeded
without legal authority and therefore reverse the judgment of the superior
court. Rule 3(b), Rules for Special Actions, 17A A.R.S.
Affirmed in part, reversed in part and remanded for entry of judgment
declaring the variance invalid.
BIRDSALL and FERNANDEZ, JJ., concur.
