REDELSPERGER v. CITY OF AVONDALE

OPINION

PORTLEY, J.

¶ 1 In this expedited appeal, we conclude that the approval of a conditional use permit is an administrative act and therefore not subject to the referendum power reserved to the citizens of a municipal corporation under Article 4, Part 1, Section 1(8), of the Arizona Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On October 7, 2001, Timothy Redelsperger applied to the City of Avondale's Planning and Zoning Commission for a conditional use permit to construct a storage facility on property zoned C-2.1 A majority of the Planning and Zoning Commission approved the conditional use permit on March 21, 2002.2 Interested parties appealed the approval.3

¶ 3 On April 15, 2002, during a regular meeting, the City Council heard the appeal and voted against approving the conditional use permit. Redelsperger requested and received a rehearing. At the July 15, 2002 rehearing, the City Council, by a four to three vote, affirmed the Commission's initial approval of the conditional use permit.

¶ 4 Following the City Council's decision, Citizens for Better Avondale ("CBA"), a local interest group, sought and received a referendum petition number from the City Clerk. Referendum petitions were circulated requesting that the City Council place the matter regarding Redelsperger's application on the ballot for a vote at a future election by the qualified electors of the City of Avondale. Sufficient signatures were collected.

¶ 5 On January 22, 2003, Redelsperger filed an action in Maricopa County Superior Court seeking relief in the form of a writ of mandamus declaring that the matter was not a legislative matter subject to referendum. The action also sought to permanently enjoin the City of Avondale, its Council members, and City Clerk from certifying or placing the matter on an election ballot. By stipulation, CBA was allowed to intervene as a defendant.

¶ 6 After taking the matter under advisement, the trial court concluded that the City Council acted in a legislative capacity on July 15, 2002, when it approved Redelsperger's conditional use permit and therefore such legislative action was subject to referendum action. The trial court, in turn, denied Redelsperger's requests for relief. The trial court also waived the requirements of Arizona Rule of Civil Procedure 58 and signed the minute entry as a final order and judgment.

¶ 7 Redelsperger timely appeals the judgment of the trial court. The inquiry on appeal is whether the issuance of a conditional use permit is a legislative act subject to the referendum power. In accordance with our jurisdiction under Arizona Revised Statutes ("A.R.S.") sections 12-2101(F)(2) (2003) and 19-122(C) (2002), we review this matter de novo. See, e.g., Robson Ranch Mountains, L.L.C. v. Pinal County, 203 Ariz. 120, 125, ¶ 13, 51 P.3d 342, 347 (App.2002) (applying de novo standard of review to trial court's denial of declaratory and injunctive relief that sought to prohibit referendum pertaining to rezoning ordinances from being placed on general election ballot, because the trial court's rulings hinged on mixed questions of law and fact and pure questions of law, including matters of statutory interpretation and constitutional issues).

DISCUSSION

¶ 8 The Arizona Constitution reserves the power of referendum to the qualified electors of municipal corporations. Ariz. Const. art. 4, pt. 1 § 1(8). The referendum power, as outlined in the Arizona Constitution, has two forms. Wennerstrom v. City of Mesa, 169 Ariz. 485, 488, 821 P.2d 146, 149 (1991). The first form permits the legislature to refer a legislative enactment to a popular vote. Ariz. Const. art. 4, pt. 1 § 1(3). The second form, and the one applicable to this appeal, permits qualified electors to circulate petitions and refer legislation which has been enacted by their elected representatives to a popular vote. Id.

¶ 9 Although the constitutional right to referendum is broadly construed, Lawrence v. Jones, 199 Ariz. 446, 449, ¶ 7, 18 P.3d 1245, 1248 (App.2001), its application is limited to legislative acts, Wennerstrom, 169 Ariz. at 488, 821 P.2d at 149. This limitation is necessary because allowing referenda on executive and administrative actions would hamper the efficient administration of local governments. Id. Municipal corporations, like the City of Avondale, act in several capacities: legislative, executive, administrative, and quasi-judicial. Id.; see also 5 Eugene McQuillin, The Law of Municipal Corporations § 16.55 (3rd ed.1996). Hence, in order for the referendum power to be applicable, the approval of the conditional use permit must be a legislative act.

¶ 10 The Zoning Ordinance defines a conditional use permit as a "permit granted to a property owner or leasee on a conditional basis to conduct a use allowed in a zoning district subject to certain requirements." Zoning Ordinance § 102 (with internal reference to § 108). As a preliminary matter, we note that the terms "conditional use permit" and "special use permit" are synonymous and are often used interchangeably. Accord City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 267 S.E.2d 234, 235 (1980); Richmarr Holly Hills, Inc. v. Am. PCS, L.P., 117 Md.App. 607, 701 A.2d 879, 897 n.26 (Ct.Spec.App.1997); Gray v. White, 26 S.W.3d 806, 817 (Mo.Ct.App.1999); Mt. Bethel Humus Co. v. State Dep't of Envtl. Prot. & Energy, 273 N.J.Super. 421, 642 A.2d 415, 418 (Ct.App.Div.1994); Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs, 299 N.C. 620, 265 S.E.2d 379, 381 (1980); Harding v. Bd. of Zoning Appeals, 159 W.Va. 73, 219 S.E.2d 324, 327 (1975).

¶ 11 The characterization given to the act of granting or denying a conditional use permit is determinative in this appeal. Redelsperger asserts that the issuance of the conditional use permit is either an administrative or quasi-judicial act. The City and CBA, however, contend that the act is legislative in nature and therefore subject to the referendum power.

¶ 12 We begin by summarily dismissing Redelsperger's argument that the issuance of a conditional use permit is quasi-judicial. An entity "acts in a quasi-judicial manner when it is under a statutory duty to consider evidence and apply the law to facts it finds." Stoffel v. Ariz. Dep't of Econ. Sec., 162 Ariz. 449, 451, 784 P.2d 275, 277 (App.1989); see, e.g., Foote v. Gerber, 85 Ariz. 366, 371, 339 P.2d 727, 730 (1959); Batty v. Ariz. State Dental Bd., 57 Ariz. 239, 245-46, 112 P.2d 870, 873 (1941); Bd. of Regents of Univ. & State Colls. v. Frohmiller, 69 Ariz. 50, 65, 208 P.2d 833, 843 (1949) (Phelps, J., dissenting). In this case, the act is not quasi-judicial. As explained in detail later, the Commission is not applying law to facts, but instead considering enumerated factors in making a determination. We next must determine whether the act is administrative or legislative.

¶ 13 The Arizona Supreme Court has provided the following analysis for distinguishing between administrative and legislative decisions:

Wennerstrom, 169 Ariz. at 489, 821 P.2d at 150 (quoting 5 Eugene McQuillin, The Law of Municipal Corporations § 16.55 (3rd ed.1989) at 266); see generally Nicolas M. Kublicki, Comment, Land Use By, For, and Of the People: Problems with the Application of Initiatives and Referenda to the Zoning Process, 19 Pepp. L.Rev. 99, 123-35 (1991) (discussing the tests used by state courts to interpret what constitutes a legislative versus an administrative zoning action).

¶ 14 CBA urges us to "liberally resolve doubts [as to whether an act is referable] in favor of a legislative determination." Given the sufficiency of the test set forth in Wennerstrom, we reject the invitation. Similarly, we decline to apply Kaahumanu v. County of Maui, 315 F.3d 1215, 1220 (9th Cir.2003) (identifying four non-mutually exclusive factors used for determining whether an action is "legislative" for purposes of legislative immunity under 42 U.S.C. § 1983), Kirschenman v. Hutchinson County Board of Commissioners, 656 N.W.2d 330, 332-34 (S.D.2003), and Stephenson v. Town of Garner, 136 N.C. App. 444, 524 S.E.2d 608, 612-14 (2000).

¶ 15 Under the Wennerstrom analysis, we must consider whether the action is (1) permanent or temporary, (2) of general or specific (limited) application, and (3) a matter of policy creation or a form of policy implementation. 169 Ariz. at 489, 821 P.2d at 150. First, we look to the permanency of the action. The Zoning Ordinance does not set forth the duration of a conditional use permit. As a consequence, a conditional use properly commenced within twenty-four months of the permit's issuance could arguably continue indefinitely.4 We note, however, that the Zoning Ordinance authorizes the Planning Commission to impose conditions on a conditional use permit "including requirements for periodic renewal of the permit as warranted by the nature of the use." Id. § 108(B)(5). Next, we consider whether the action is general or specific in nature. By definition, a conditional use permit is applicable only to a specific area; otherwise, the action would probably be more appropriately a "Zoning Ordinance Amendment." See id. § 109. The last prong, and the source of the parties' disagreement, focuses on whether the action represents policy creation or the implementation of existing policy.

¶ 16 Throughout this appeal, the parties have disagreed about the applicability of discretion in determining whether an act is policy creation or policy implementation. The conflict primarily stems from State v. Oakley, 180 Ariz. 34, 37-38, 881 P.2d 366, 369-70 (App.1994), wherein this court proceeded to explain the distinction between a legislative and administrative enactment. In determining whether the approval of new election districts was subject to referendum, we quoted the following with approval:

Id. (quoting Menendez v. City of Union City, 211 N.J.Super. 169, 511 A.2d 676, 677-78 (Ct.App.Div.1986)). Discretion is a factor of consideration when distinguishing between policy implementation and policy creation. The more discretion afforded, the more likely the act is legislative. Discretion, however, is not the ending point in our analysis. It is simply another factor to be considered. In this case, the Commission is afforded some discretion in the grant or denial of a conditional use permit.5 See Zoning Ordinance § 108. However, that discretion is not without limitation. See id.

¶ 17 Section 108, which governs the issuance of conditional use permits, states that:

a. The conditional use is in conformance with the City Comprehensive Plan, its goals and policies, and any applicable specific plans.

b. The conditional use will not be detrimental to persons residing or working in the vicinity, to the neighborhood, or the public welfare in general.

c. The conditional use will be in conformity with the conditions, requirements, or standards prescribed by this Code.

d. The conditional use is compatible and consistent with the community character of the immediate vicinity of the parcel proposed for the conditional use.

e. The design of the proposed use minimizes adverse effects, including design and environmental impacts on adjacent properties.

f. The proposed use will not have an adverse effect on the value of adjacent property.

g. The applicant has demonstrated that public facilities and services are capable of serving the conditional use.

Zoning Ordinance § 108(B)(2), (3) and (5). Unlike the situation in Oakley, the Planning and Zoning Commission is guided by objective criteria and standards when considering the grant or denial of a conditional use permit.

¶ 18 CBA argues that "by simply listing mini-storage facilities as possible conditional uses without delineating any development standards, and by making approval subject to the broad exercise of discretion, the City was reserving its legislative powers until an actual application for the use was filed." As a matter of law, we cannot agree. Legislative powers cannot be delegated to administrative bodies. Wells-Stewart Constr. Co. v. Martin Marietta Corp., 103 Ariz. 375, 378, 442 P.2d 119, 122 (1968); Haggard v. Indust. Comm'n., 71 Ariz. 91, 100, 223 P.2d 915, 921 (1950); Loftus v. Russell, 69 Ariz. 245, 254-55, 212 P.2d 91, 97 (1949). A legislative body may, however, "confer authority upon an agency or department to exercise its discretion in administering the law." Lake Havasu City v. Mohave County, 138 Ariz. 552, 559, 675 P.2d 1371, 1378 (App.1983). "The powers given an administrative board must, by the provisions of the act, be surrounded by standards, limitations, and policies. Only within such boundaries may the board act." Hernandez v. Frohmiller, 68 Ariz. 242, 255, 204 P.2d 854, 863 (1949). Without standards to guide an administrative agency, there may be an unconstitutional delegation of legislative powers. See id. That is not the situation in this case, since Section 108 of the Zoning Ordinance provides an objective standard for the Commission to follow.

¶ 19 Equally unpersuasive is CBA's argument suggesting that "[t]he fact that the Planning Commission is charged with making the initial decision to issue the conditional use permit does not convert the process into an administrative one" because "[t]he Planning Commission's decision is subject to City Council review." Although a legislative body, the local ordinance limits the City Council's role in the issuance or denial of a conditional use permit. Its involvement is limited to being an appellate forum—approve, approve with modifications, or deny the appeal. Zoning Ordinance §§ 103(A)(2), 108(B). If an appeal is not taken, the City Council is not involved and the conditional use permit is still granted or denied. Contrary to CBA's assertion, the curtailed involvement of the City Council does not make the act legislative per se.6

¶ 20 Citing City of Tucson v. State, 191 Ariz. 436, 957 P.2d 341 (App.1997), CBA argues that the "City's interpretation of its ordinance is entitled to weight" and states that the City treats "most of these issues [as] policy decisions for the Mayor and Council to make." Although the City's interpretation of its Zoning Ordinance should be accorded some weight, it is not binding on this court. Jones v. County of Coconino, 201 Ariz. 368, 371 n. 1, ¶ 16, 35 P.3d 422, 425 n. 1 (App.2001). The matter remains a judicial question for us to answer. 5 Eugene McQuillin, The Law of Municipal Corporations § 16.55 (3rd ed.1996) at 298.

¶ 21 In light of the foregoing, we find that the Zoning Ordinance represented legislative action because it declared a public policy and provided the ways and means for its accomplishment, Wennerstrom, 169 Ariz. at 491, 821 P.2d at 152; whereas, the issuance or denial of a conditional use permit is a mean or method of implementing the general policy already set forth in the Zoning Ordinance. Support is garnered for this finding from the Zoning Ordinance itself:

Zoning Ordinance § 101(B)(1) (emphasis added).

¶ 22 In arguing that the issuance of a conditional use permit should be deemed legislative action, the City and CBA analogize a conditional use permit to a change in zoning and expound on the similarities among the notice and application procedures associated with each. Compare Zoning Ordinance §§ 108 (conditional use permit procedure), and 111 (notification of public hearings), with A.R.S. §§ 9-462.03 (amendment procedure), and 9-462.04 (public hearing requirement) (Supp.2003); see also Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 65, 811 P.2d 22, 26 (1991) (conditional approval of an application to rezone is a legislative act). In an attempt to infer that the two are the same, the City directs our attention to Wait v. City of Scottsdale, 127 Ariz. 107, 109, 618 P.2d 601, 603 (1980), wherein our Supreme Court stated that:

We acknowledge that, in some instances, both actions require the review of similar factors, but despite their purported similarities, rezoning is not akin to the issuance of a conditional use permit.

¶ 23 First of all, general zoning decisions establishing public policy with regards to the City of Avondale are committed to the City Council. A.R.S. § 9-462.01 (Supp.2003); see also Zoning Ordinance § 109(A). In comparison, the initial authority to approve a conditional use permit rests with the Planning Commission. Zoning Ordinance § 108(B). More importantly, a change in zoning is a general declaration of public policy of permanent duration (or until a new public policy i.e., legislation is enacted); whereas a conditional use permit involves the implementation of existing policy to a specific site, the grant of which may be temporary or subject to renewal procedures. See discussion supra.

¶ 24 The City and CBA, in their respective briefs, contend that Arizona jurisprudence has already characterized the act of issuing or denying a conditional use permit. We will address each in turn.

¶ 25 According to CBA, Fritz v. City of Kingman, 191 Ariz. 432, 957 P.2d 337 (1998), is dispositive of this appeal. We disagree. In Fritz, our Supreme Court not only reaffirmed the Wennerstrom decision but also concluded that a rezoning ordinance was subject to referendum because the City of Kingman acted in a legislative manner when they adopted the ordinance. 191 Ariz. at 432-33, ¶ 1, 957 P.2d at 337-38. Fritz is not controlling because it dealt with rezoning and, as stated earlier, rezoning is distinct from a conditional use permit.

¶ 26 The City asserts that:

The Paradise Valley cases are distinguishable from the present matter. In both cases, because the entire municipality was zoned for residential use, the courts drew no distinction between rezoning and a conditional use permit. In both opinions, the court stated:

Gulf Leisure Corp., 27 Ariz.App. at 605, 557 P.2d at 537; Bartolomeo, 129 Ariz. at 415-16, 631 P.2d at 570-71 (quoting Gulf Leisure Corp.). Moreover, in Bartolomeo, the court, with citations to two rezoning cases, concluded that "the granting or the refusal to grant rezoning by special use permit is a legislative function of the Town Council subject to limited review by this Court." 129 Ariz. at 416, 631 P.2d at 571 (citing to Wait, 127 Ariz. at 108, 618 P.2d at 602 (where property owners sought to rezone their property through an amendment to the zoning ordinance, the Arizona Supreme Court concluded that the amendment to the zoning ordinance was of legislative character) and New Pueblo Constructors, Inc. v. Pima County, 120 Ariz. 354, 586 P.2d 199 (App.1978) (in upholding the Pima County Board of Supervisors' refusal to rezone the subject property from general rural classification to an industrial zone, the Court of Appeals stated that "the matter of zoning is appropriately one for the legislative branch of government")).

¶ 27 In Sandblom v. Corbin, 125 Ariz. 178, 184-85, 608 P.2d 317, 323-24 (App.1980), while considering the kind of action the Maricopa County Board of Supervisors could take without prior notice and hearing, we indicated that:

(Citations omitted). We find the rationale of Sandblom instructive to this matter. CBA argues that "[u]nlike Sandblom, the City has not made a legislative decision that mini-storage facilities are `permissible by administrative decree.'" We disagree because although not labeled an "administrative decree," the Zoning Ordinance declares the administrative policies regarding land use in the City of Avondale.

¶ 28 After due consideration, we conclude that the issuance of a conditional use permit is an administrative act. Accord Johnston v. City of Claremont, 49 Cal.2d 826, 323 P.2d 71, 75 (1958); Bossert Corp. v. City of Norwalk, 157 Conn. 279, 253 A.2d 39, 42 (1968); Cota v. Northside Hosp. Ass'n, 221 Ga. 110, 143 S.E.2d 167, 169 (1965); Gallik v. County of Lake, 335 Ill.App.3d 325, 269 Ill.Dec. 725, 781 N.E.2d 522, 525 (2002); Hessee Realty, Inc. v. City of Ann Arbor, 61 Mich.App. 319, 232 N.W.2d 695, 698 (1975); State ex rel. Ludlow v. Guffey, 306 S.W.2d 552, 556 (Mo.1957); City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118, 359 P.2d 743, 745 (1961); Ivkovich v. Steubenville, 144 Ohio App.3d 25, 759 N.E.2d 434, 438-39 (2001); N. Point Breeze Coalition v. City of Pittsburgh, 60 Pa.Cmwlth. 298, 431 A.2d 398, 399-400 (1981); Durocher v. King County, 80 Wn.2d 139, 492 P.2d 547, 555 (1972); see generally 3 Edward H. Ziegler, Jr. et al., Rathkopf's The Law of Zoning and Planning § 46:7 (4th ed. 1994) ("[T]he implementation of existing zoning ordinances, by the grant of a variance, special use permit or tentative approval of a subdivision plat, generally is considered to involve `administrative action' not properly subject to voter initiative or referendum."); Kenneth H. Young, Anderson's American Law of Zoning § 21.10 (4th ed. 1996) ("[Even when the] permit issuing authority is retained by the legislature, the granting or denial of special permits by that body is regarded by most courts as an administrative rather than a legislative function.").

¶ 29 Having concluded that the issuance of a conditional use permit is not a legislative act, we likewise must conclude that the approval of Redelsperger's conditional use permit is not subject to the referendum power afforded to qualified electors in the City of Avondale.

CONCLUSION

¶ 30 For the aforementioned reasons, we reverse and remand this matter to the trial court with instructions to grant declaratory and injunctive relief in favor of Redelsperger.

THOMPSON, P.J. and PATTERSON, J., concurring.