10.2. NATURE OF ACTION TO REVIEW ZONING ORDINANCES AND REMEDIES AVAILABLE.

• Jurisdiction: Arizona

10.2. Nature of action to review zoning ordinances and remedies available.

Judicial review in zoning cases is limited to consideration of the reasonableness of the existing zoning classification of land. Rejection by a local governing body of a request for rezoning is an exclusively legislative function that is not subject to judicial review. Under the separation of powers doctrine, a court that invalidates the zoning classification of a parcel of land cannot rezone the land to some other classification.

Mehlhorn v. Pima County, 194 Ariz. 140, 978 P.2d 117 (App. 1998)

10.2.1. Construction of pleadings.

A complaint challenging the denial of rezoning will be construed as an attack on the constitutionality of the zoning ordinance as applied to the particular property.

Rubi v. 49'er Country Club Estates, Inc., 7 Ariz.App. 408, 440 P.2d 44 (1968) (complaint which alleged, inter alia, that the denial of rezoning was arbitrary and capricious and an abuse of discretion was construed as an attack on the existing zoning)

10.2.2. Declaratory judgment.

A zoning ordinance may be challenged through an action for a declaratory judgment pursuant to A.R.S. § 12-1831 et seq.

Behavioral Health Agency of Central Arizona v. City of Casa Grande, 147 Ariz. 176, 708 P.2d 1317 (App. 1985) (court allowed issue which had not been raised before the city council to be first presented to superior court, since the action was characterized as a declaratory judgment)

Davis v. Pima County, 121 Ariz. 343, 590 P.2d 459 (App. 1978), cert. denied, 442 U.S. 942 (1979), overruled in part, Corrigan v. City of Scottsdale, 149 Ariz. 538, 720 P.2d 513, cert. denied, 479 U.S. 986 (1986) (one proper remedy for confiscatory zoning is to seek declaratory judgment invalidating the ordinance)

Town of Paradise Valley v. Gulf Leisure Corp., 27 Ariz.App. 600, 557 P.2d 532 (1976) (when no procedure exists for administrative review, declaratory judgment is authorized means of judicial review)

10.2.3. Special action.

Arizona Corp. Comm'n v. Superior Court, 107 Ariz. 24, 480 P.2d 988 (1971) (generally, a legislative act may not be challenged through a special action)

Davis v. Pima County, 121 Ariz. 343, 590 P.2d 459 (App. 1978), cert. denied, 442 U.S. 942 (1979), overruled in part, Corrigan v. City of Scottsdale, 149 Ariz. 538, 720 P.2d 513, cert. denied, 479 U.S. 986 (1986) (proper remedy when zoning is confiscatory is to challenge zoning determination by special action)

Town of Paradise Valley v. Gulf Leisure Corp., 27 Ariz.App. 600, 557 P.2d 532 (1976) (special action will lie if actions of a municipality are arbitrary, capricious, and in error with prevailing law)

10.2.4. Injunction.

A.R.S. § 12-1802(7) prohibits the issuance of an injunction to prevent a legislative act by a municipal corporation, but it is not a bar to judicial review after the enactment of zoning regulations.

Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984) (preliminary injunction should be issued upon a clear showing of either: (1) probable success on the merits and possible irreparable injury; or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief)

Southern Alameda Spanish Speaking Org. v. City of Union City, 424 F.2d 291 (9th Cir. 1970) (denial of preliminary injunction to require implementation of zoning legislation nullified by referendum vote that would have permitted construction of federally financed low and moderate income housing)

Queen Creek Land & Cattle Corp. v. Yavapai County, 108 Ariz. 449, 501 P.2d 391 (1972) (courts cannot interfere in legislative process)

City of Phoenix v. Superior Court, 65 Ariz. 139, 175 P.2d 811 (1946) (courts have no power to enjoin proposed legislative functions)

Town of Paradise Valley v. Gulf Leisure Corp., 27 Ariz.App. 600, 557 P.2d 532 (1976) (where there were no established administrative review procedures for final town action, special action for injunctive relief was authorized)

Manning v. Reilly, 2 Ariz.App. 310, 408 P.2d 414 (1965) (court of equity may not generally grant injunction interfering with discretionary powers of a municipal corporation or its officers)

10.2.5. Money damages.

10.2.5.1. Time period.

Once an unconstitutional taking is shown, a property owner may seek to recover damages for the period of time the confiscatory zoning ordinance has "taken" the property.

First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987)

See Moore v. City of Costa Mesa, 886 F.2d 260 (9th Cir...