9.5. REVIEW OF DECISIONS OF THE BOARD OF ADJUSTMENT.

• Jurisdiction: Arizona

9.5. Review of decisions of the board of adjustment.

9.5.1. Municipalities.

9.5.1.1. Statutory special action.

A statutory special action is the vehicle to review municipal board of adjustment decisions. A.R.S. § 9-462.06(K).

Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, 295 P.3d 943 (2013) (exhaustion of administrative remedies is not required when the pursuit of such remedies would be futile; in this case, no purpose would have been served by requiring appellant mobile home park owner to appeal to the board of adjustment a zoning administrator's decision that the park as a whole was not a nonconforming use when the board had previously rejected appellant's position to the contrary; challenge to zoning interpretation decision by zoning administrator is not an action in the nature of mandamus that would support an award of attorneys' fees pursuant to A.R.S. § 122030; A.R.S. § 9-462.06(K), which governs judicial review of board of adjustment decisions, does not authorize the award of attorneys' fees; court disapproves of Motel 6 Operating L.P. v. City of Flagstaff, 195 Ariz. 569, 572, 991 P.2d 272, 275 (App. 1999), insofar as that decision suggests otherwise)

Scenic Arizona v. City of Phoenix Bd. of Adjustment, 228 Ariz. 419, 268 P.3d 370 (App. 2011) (pursuant to A.R.S. § 9-462.06(K), a "person aggrieved" by a decision of the board may file a special action in superior court seeking review of the decision)

Circle K Convenience Stores, Inc. v. City of Phoenix, 178 Ariz. 102, 870 P.2d 1198 (App. 1993) (the superior court cannot decline to accept jurisdiction of a statutory special action challenging a board of adjustment decision; statutory special actions are not at all discretionary and they are not subordinate to a right of appeal; they are the right of appeal; a special action challenging a decision by the board of adjustment is in the nature of certiorari, not mandamus; court may not award attorneys' fees not authorized under A.R.S. § 9-462.06(K))

U.S. Parking Systems v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989) (appellant could not "bootstrap" itself into a position to receive attorneys' fees by couching complaint in terms of mandamus action)

Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 678 P.2d 517 (App. 1983)

See also Schoenberger v. Board of Adjustment, 124 Ariz. 528, 606 P.2d 18 (1980) (finding that the remedy under a prior statute, which did not provide an appeal procedure to review board of adjustment decisions, was by writ of certiorari)

9.5.1.2. Record on appeal.

An appeal from the board of adjustment is not a trial de novo, and the court is limited to a review of the record before the board.

City of Phoenix v. Superior Court, 110 Ariz. 155, 515 P.2d 1175 (1973) (holding based on previous statute; the same rule should apply to the present statute)

Pingitore v. Town of Cave Creek, 194 Ariz. 261, 981 P.2d 129 (App. 1998)

Murphy v. Town of Chino Valley, 163 Ariz. 571, 789 P.2d 1072 (App. 1989) (the record from the board of adjustment is sufficient for review unless there are errors of such magnitude that the record precludes an intelligent understanding of the testimony; although not all the board's deliberations were in the record, the Court of Appeals was able to review the testimony to determine whether there was sufficient evidence to support the board's decision under any legal theory)

Gannett Outdoor Co. v. City of Mesa, 159 Ariz. 459, 768 P.2d 191 (App. 1989) (superior court abused discretion in considering matters not presented to board of adjustment)

See Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 678 P.2d 517 (App. 1983)

9.5.1.3. Time for appeal.

A.R.S. § 9-462.06(K) provides a 30-day time limit for challenging board of adjustment decisions.

Houser v. City of Phoenix, 248 Ariz. 608, 463 P.3d 232 (2020) (if a party requests reconsideration of a board of adjustment decision, the 30 day time limit for challenging board of adjustment decisions begins when the request for reconsideration was effectively denied when the board failed to vote on the request)

Arkules v. Board of Adjustment, 151 Ariz. 438, 728 P.2d 657 (App. 1986) (grant of a variance that does not satisfy statutory criteria is void and may be challenged after expiration of appeal period); abrogated by Legacy Foundation Action Fund v. Citizens Clean Elections Comm'n, 243 Ariz. 404, 408 P.3d 828 (2018)

Boyce v. City of Scottsdale, 157 Ariz. 265, 756 P.2d 934 (App. 1988) (a request for rehearing to board of adjustment tolls 30-day time limit for challenging board action)

9.5.2. Counties.

A.R.S. § 11-816(B)(3) (appeal of board of adjustment zoning enforcement appeal is pursuant to the Administrative Review Act, A.R.S. § 12-901 et seq.)

A.R.S. § 11-816(D) (on all other subjects, an appeal from the board of adjustment is a trial de novo in superior court)

P. F....