10.1. VALIDITY OF ZONING REGULATIONS.

• Jurisdiction: Arizona

10.1. Validity of zoning regulations.

10.1.1. Substantive due process.

A zoning ordinance or governmental action will be upheld unless it is shown to be clearly arbitrary, unreasonable, and without any substantial relation to public health, safety, morals, or general welfare. In determining whether substantive due process rights have been violated, the court will look to such factors as the need for the governmental action in question, the relationship between the need and the action, the extent of harm inflicted, and whether the action was taken in good faith or for the purpose of causing harm.

MHC Financing Ltd. Partnership v. City of San Rafael, 714 F.3d 1118 (9th Cir. 2013) (city's mobile home rent regulation does not violate the park owners' substantive due process rights)

Samson v. City of Bainbridge Island, 683 F.3d 1051 (9th Cir.), cert. denied, 568 U.S. 1041 (2012) (to establish a substantive due process violation, the plaintiffs must show that a land use regulation is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare; where only economic interests are involved and no fundamental rights are affected, the regulations are presumed valid and the presumption is overcome only by a clear showing of arbitrariness and irrationality; when executive action like a discrete permitting decision is at issue, only egregious official conduct can be said to be arbitrary in the constitutional sense; it must amount to an abuse of power lacking any reasonable justification in the service of a legitimate governmental objective; here, rolling moratoria on new over-water harbor development that were invalidated by the state supreme court were found not to constitute a violation of the property owners' substantive due process rights)

North Pacifica LLC v. City of Pacifica, 526 F.3d 478 (9th Cir. 2008) (to maintain a substantive due process claim arising from a city's delay in approving a development project, the developer must show that the city's delays in processing its application lacked a rational relationship to a government interest; court held that there was a reasonable explanation on the face of the complaint for every delay in the city's eventual approval of the application)

See Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, (9th Cir. 2007) (in light of Lingle, court held that contrary to the holding in Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996), the Fifth Amendment does not invariably preempt a claim that land use action lacks any substantial relation to the public health, safety, or general welfare; developer's claim for relief based on the allegedly arbitrary and irrational denial of a permit application, which did not fall within the three categories of regulatory action that generally will be deemed a taking under the Fifth Amendment, could proceed under the substantive due process clause of the Fourteen Amendment)

Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir. 2004) (the substantive due process doctrine forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with rights implicit in the concept of ordered liberty), overruling on other grounds recognized by Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020 (9th Cir. 2007)

Hoeck v. City of Portland, 57 F.3d 781 (9th Cir. 1995)

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th Cir.), cert. denied, 513 U.S. 870 (1994)

Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398 (9th Cir. 1989), cert. denied, Doody v. Sinaloa Lake Owners Ass'n, 494 U.S. 1016 (1990), overruled in part by Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996), overruled in part by Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. 2007)

Coleman v. City of Mesa, 230 Ariz. 352, 284 P.3d 863 (2012) (content-neutral time, place, and manner regulations of protected speech challenged under the Due Process Clause are subject to the same intermediate level of scrutiny that is applicable to a First Amendment challenge)

Aegis of Arizona, L.L.C. v. Town of Marana, 206 Ariz. 557, 81 P.3d 1016 (App. 2003) (the doctrine of substantive due process is to be applied with caution and restraint; in order to show a substantive due process violation, the abuse of governmental power must be one that shocks the conscience; a complaining landowner's substantive due process and equal protection rights are not violated even when a municipality acts in violation of state or local law, in bad faith, and/or beyond its jurisdiction)

10.1.1.1. Ordinance or action upheld.

Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980)

Gorieb v. Fox, 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed. 1228 (1927)

Zahn v. Board of Public Works, 274 U.S. 325, 47 S. Ct. 594, 71 L. Ed. 1074 (1927)

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926)

Welch v. Swasey, 214 U.S. 91, 29 S. Ct. 567, 53 L. Ed. 923 (1909)

MHC Financing Ltd. Partnership v. City of San Rafael, 714 F.3d 1118 (9th Cir. 2013) (city's mobile home rent regulation does not violate the park owners' substantive due process rights)

Samson v. City of Bainbridge Island, 683 F.3d 1051 (9th Cir.), cert. denied, 568 U.S. 1041 (2012) (rolling moratoria on new over-water harbor development that were invalidated by the state supreme court were found not to constitute a violation of the property owners' substantive due process rights; none of the conduct plaintiff alleged was arbitrary in a constitutional sense; it was at least fairly debatable that the city furthered its legitimate interests in orderly development by imposing the moratoria, which are an essential tool for the regulation of development)

Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997) (rational basis scrutiny held appropriate for claim that city's denial of conditional use permit to construct complex for disabled elderly adults violated their right to due process; city's denial upheld as rationally related to achieving its zoning goals)

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th Cir.), cert. denied, 513 U.S. 870 (1994) (specific plan requirement, rural designation of portion of property, and temporary water moratorium upheld as advancing legitimate public purposes)

Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161 (9th Cir. 1993) (zoning agreement not facially unconstitutional under substantive due process in light of agreement's rational relation to legitimate state purposes of alleviating financial detriment to county, preserving agricultural uses of land, and discouraging urban sprawl)

Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991) (a law need not be in every respect logically consistent with its aims to be constitutional; it is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it)

Nelson v. City of Selma, 881 F.2d 836 (9th Cir. 1989)

Barancik v. County of Marin, 872 F.2d 834 (9th Cir. 1988), cert. denied, 493 U.S. 894 (1989)

Citizens Ass'n of Portland v. International Raceways, Inc., 833 F.2d 760 (9th Cir. 1987)

McMillan v. Goleta Water Dist., 792 F.2d 1453 (9th Cir. 1986), cert. denied, 480 U.S. 906, 107 S. Ct. 1348 (1987)

Construction Industry of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert. denied, 424 U.S. 934 (1976)

Southern Alameda Spanish Speaking Org. v. City of Union City, 424 F.2d 291 (9th Cir. 1970) (nullification of zoning legislation by referendum vote not arbitrary or unreasonable exercise of zoning power)

Kaiser Dev. Co. v. City & County of Honolulu, 649 F. Supp. 926 (D. Hawaii 1986), aff'd, 898 F.2d 112 (9th Cir. 1990)

Outdoor Systems, Inc. v. City of Mesa, 169 Ariz. 301, 819 P.2d 44 (1991) (Mesa ordinance prohibiting off-premises signage is a valid exercise of the city's power to regulate signs and billboards)

Wait v. City of Scottsdale, 127 Ariz. 107, 618 P.2d 601 (1980)

City of Phoenix v. Oglesby, 112 Ariz. 64, 537 P.2d 934 (1975)

City of Phoenix v. Fehlner, 90 Ariz. 13, 363 P.2d 607 (1961) (definition of "public welfare") City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923 (1928)

Aegis of Arizona, L.L.C. v. Town of Marana, 206 Ariz. 557, 81 P.3d 1016 (App. 2003) (because it did not have a protectable property interest in the granting of a conditional use permit, Aegis's claim of substantive due process failed; moreover, even if Aegis did have such an interest, the town, by considering public opposition to the proposed use, did not unconstitutionally deprive it of that interest)

Ranch 57 v. City of Yuma, 152 Ariz. 218, 731 P.2d 113 (App. 1986) (upheld ordinance but stated that valid ordinance may constitute a taking)

Bartolomeo v. Town of Paradise Valley, 129 Ariz. 409, 631 P.2d 564 (App. 1981)

Pima County v. Arizona Title Ins. & Trust Co., 115 Ariz. 344, 565 P.2d 524 (App. 1977)

Dye v. City of Phoenix, 25 Ariz.App. 193, 542 P.2d 31 (1975)

City of Tempe v. Rasor, 24 Ariz.App. 118, 536 P.2d 239 (1975)

City of Phoenix v. Beall, 22 Ariz.App. 141, 524 P.2d 1314 (1974)

City of Phoenix v. Price, 18 Ariz.App. 144, 500 P.2d 1132 (1972)

Peabody v. City of Phoenix, 14 Ariz.App. 576, 485 P.2d 565 (1971)

Klensin v. City of Tucson, 10 Ariz.App. 399, 459 P.2d 316 (1969)

Courson v. City of Tucson, 10 Ariz.App. 159, 457 P.2d 346 (1969)

Rubi v. 49'er Country Club Estates, Inc., 7 Ariz.App. 408, 440 P.2d 44 (1968)

10.1.1.2. Ordinance or action overturned.

Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842 (1928)

See Del Monte Dunes v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990) (summary judgment in favor of city reversed)

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988)

Cardon Oil Co. v. City of Phoenix, 122 Ariz. 102, 593 P.2d 656 (1979)

Ellsworth v. Gercke, 62 Ariz. 198, 156...