                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


  KAREN ADAMS; BONNIE CHAUNCEY-RIGGS; KARYIN GITLIS;
  DAVID HANSON; BARBARA LLOYD; ANTONIO LOPEZ; ESTHER
    MYERS; CHET MYERS; KIM PEARCE; FREDA ROTHERMEL,
                    Plaintiffs/Appellants,

                                         v.

 ROBERT GIGUERE; CITY OF TEMPE BOARD OF ADJUSTMENT; CITY
    OF TEMPE; CITY COUNCEL OF TEMPE, Defendants/Appellees.

                              No. 1 CA-CV 16-0209
                                FILED 5-23-2017


            Appeal from the Superior Court in Maricopa County
                         No. LC2015-000228-001
                  The Honorable Patricia A. Starr, Judge

                                   AFFIRMED


                                    COUNSEL

Timothy A. La Sota, PLC, Phoenix
By Timothy A. La Sota
Counsel for Plaintiffs/Appellants

Tempe City Attorney’s Office, Tempe
By Judith R. Baumann, Michael R. Niederbaumer
Counsel for Defendants/Appellees City of Tempe Board of Adjustment, City of
Tempe, and City Council of Tempe
                       ADAMS et al. v. GIGUERE et al.
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.


J O N E S, Judge:

¶1           Appellants (the Neighbors) challenge the superior court’s
ruling denying special action relief from a City of Tempe (City) Board of
Adjustment (Board) decision granting variances to Appellee Robert
Giguere. For the following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            Giguere purchased residential property in Tempe intending
to tear down an existing residence and build in its place a new home. After
razing the existing structure, Giguere had two sets of plans prepared.
Although both were approved by the City, the plans described the width of
the right-of-way on the south side of the property inconsistently. This
discrepancy resulted in the home ultimately being built twenty feet from
the curb line as opposed to twenty feet from the property line, thereby
placing the structure ten feet short of the City’s twenty-foot setback
requirement.

¶3             Giguere did not discover the discrepancy until construction
was nearly completed. He applied for two variances to accommodate the
existing structure: one to address the inadequate front yard setback and the
other to reduce the onsite driveway length requirement. A hearing officer
initially denied Giguere’s application. Giguere appealed that decision to
the Board, which, after hearing from Giguere, City staff, and several of the
Neighbors, granted both variances.




1      “When reviewing the superior court’s denial of relief in a special
action, we view the facts in the light most favorable to sustaining the court’s
ruling.” Abeyta v. Soos ex rel. Cty. of Pinal, 234 Ariz. 190, 192, ¶ 2 (App. 2014)
(quoting Hornbeck v. Lusk, 217 Ariz. 581, 582, ¶ 2 (App. 2008)).



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                      ADAMS et al. v. GIGUERE et al.
                         Decision of the Court

¶4            The Neighbors sought special action relief in superior court
pursuant to Arizona Revised Statutes (A.R.S.) section 9-462.06(K).2 The
court denied relief. The Neighbors moved unsuccessfully for a new trial
and then timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), and -2101(A)(1), (5)(a).

                               DISCUSSION

¶5            A zoning board has only those powers granted by applicable
statutes and zoning ordinances. Pawn 1st, L.L.C. v. City of Phx., 239 Ariz.
539, 542, ¶ 14 (App. 2016) (citing Arkules v. Bd. of Adjustment of Paradise
Valley, 151 Ariz. 438, 440 (App. 1986)). The City’s Zoning and Development
Code (Code) authorizes the Board to grant a variance upon sufficient
evidence of the following:

       1.     That special circumstances are applicable to the
              property, including its size, shape, topography,
              location, or surroundings; and

       2.     The strict application of this Code will deprive such
              property of privileges enjoyed by other property of the
              same classification in the same zoning district; and

       3.     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; and

       4.     A variance may not be granted if the special
              circumstances applicable to the property are self-
              imposed by the property owner.

Code § 6-309(D); accord A.R.S. § 9-462.06(G)(2), (H)(2). On appeal, the
Neighbors argue the evidence does not support the granting of the
variances.

¶6            In a special action challenging a board of adjustment decision,
the superior court reviews the record that was before the board and
determines whether the board acted arbitrarily or capriciously or abused its
discretion. Austin Shea (Ariz.) 7th Street & Van Buren, L.L.C. v. City of Phx.,
213 Ariz. 385, 392, ¶ 29 (App. 2006) (citing Murphy v. Town of Chino Valley,

2     Absent material changes from the relevant date, we cite a statute’s
current version.


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                      ADAMS et al. v. GIGUERE et al.
                         Decision of the Court

163 Ariz. 571, 574-75 (App. 1989), and then Pingitore v. Town of Cave Creek,
194 Ariz. 261, 264, ¶ 18 (App. 1998). On appeal to this Court, we answer the
same question addressed by the superior court and therefore review the
same record.3 Austin Shea, 213 Ariz. at 392, ¶ 32 (citing Arkules, 151 Ariz. at
441). “Neither court may substitute its opinion of the facts for that of the
Board. Rather, if there is credible evidence to support the Board’s decision,
it must be affirmed.” Id. at 392, ¶ 29 (quoting Pingitore, 194 Ariz. at 264,
¶ 18). As the party attacking the Board’s decision, the Neighbors had the
burden of showing the decision was “against the weight of the evidence,
unreasonable, erroneous, or illegal as a matter of law.” Ivancovich v. City of
Tucson Bd. of Adjustment, 22 Ariz. App. 530, 535 (1974) (quoting Mueller v.
City of Phx., 102 Ariz. 575, 581 (1967)).

I.     Special Circumstances

¶7            A finding of special circumstances, although not explicitly
stated, was implicit in the Board’s grant of the variance. See Code § 6-309(D)
(authorizing a variance only where special circumstances exist); Austin
Shea, 213 Ariz. at 393, ¶ 33 (citing Coronado Co. v. Jacome’s Dep’t Store, Inc.,
129 Ariz. 137, 139 (App. 1981)). The Neighbors argue insufficient evidence
supports the finding that special circumstances justified the grant of a
variance.4 This Court has defined the term “special circumstances” as it
appears within a similar ordinance to be “the functional equivalent of the
word ‘hardship.’” Burns v. SPA Auto., Ltd., 156 Ariz. 503, 504-05 (App. 1988)
(interpreting a zoning ordinance authorizing a variance upon proof, among
other things, “[t]hat there are special circumstances or conditions applying
to the land, building or use referred to in the application”). But, contrary to
the Neighbors’ suggestion otherwise, there is no Arizona authority
suggesting a hardship qualifies for a variance only if it is completely
unavoidable; rather, the hardship need only “arise directly out of the
application of the ordinance to circumstances or conditions beyond the
control of the party involved.” See id. at 505.


3      This case is complicated by the fact that the record on the relevant
issues is slim. But the parties do not argue they had inadequate time and
opportunity to present evidence to the Board or that the record is
insufficient to decide the issues. Nor do we find that to be the case.

4     Although the Neighbors cite Ivancovich to support their position that
a variance may be granted only in “exceptional circumstances,” that
seemingly enhanced standard originates from the City of Tucson Code,
which is inapplicable here. 22 Ariz. App. at 535.


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                      ADAMS et al. v. GIGUERE et al.
                         Decision of the Court

¶8             The Neighbors argue the situation presented here is similar to
that in Board of Zoning Appeals of Virginia Beach v. Nowak, 315 S.E.2d 221 (Va.
1984). We disagree. In Nowak, the variance applicant purchased building
plans for a home before he saw the lot and later discovered the proposed
home, in the proposed location, would violate the applicable setback
requirements. Id. at 222. Although the applicant could have shifted the
home within the lot to meet the setback requirements, this did not suit the
applicant’s plans. Id. The Virginia Supreme Court held, under these
circumstances, that the applicant failed to prove adequate hardship. Id. at
223. Here, however, the record reflects that impediments not under
Giguere’s control limited his ability to build toward the back of the lot.
According to the City’s February 2015 Staff Report, “there is no sidewalk in
front of the lot and a substantial right of way encroaches on the property
[such that compliance with the existing setback requirements] would
require the house to be placed further back on the lot, where easements and
power lines limit placement.” (Emphasis added). Giguere also described the
right-of-way as “excessive” and informed the Board that it will never be
used. This information supports the Board’s implicit finding that strict
application of the setback would create a hardship to Giguere.

¶9             The Neighbors nevertheless argue these circumstances were
not “special” because they were not unique to the Giguere property.
Although the Neighbors cite extra-jurisdictional cases to support their
assertion that a variance is only proper if the special circumstance affects
“only a small fraction of any one zone,” see, e.g., Topanga Ass’n for a Scenic
Cmty. v. Cty. of L.A., 522 P.2d 12, 21 (Cal. 1974), uniqueness and peculiarity
are not required under Arizona law. Moreover, the Neighbors did not
present any evidence or argument defining how small or large a fraction
affected by a circumstance may be and still qualify for a variance, or suggest
what percentage of the relevant zoning area in the immediate case, if any,
is exposed to the same circumstances as the Giguere property. See, e.g.,
Pawn 1st, 239 Ariz. at 544-45, ¶ 24 (considering the testimony of the property
owner comparing the impact of eminent domain proceedings on the subject
property and other properties “in a reasonably close radius” in determining
whether the setback deprived the property of privileges enjoyed by others).
Credible evidence supports the Board’s decision on this point, and we find
no error.

II.    Deprivation or Extension of Privileges

¶10            The Neighbors also argue insufficient evidence supports the
finding that strict application of the Code will deprive Giguere of privileges
enjoyed by neighboring property owners. The superior court found


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                      ADAMS et al. v. GIGUERE et al.
                         Decision of the Court

otherwise, noting other property owners had been granted variances to
build structures within twenty feet of the property line. This finding is
supported by the record. The Board was advised by the City’s Senior
Planner that the City had already approved “at least a dozen” variances in
the area based on the lack of a sidewalk. And although the Neighbors
dispute the existence and similarity of the other setback variances,
resolution of conflicting evidence is the province of the Board and will not
be disturbed on appeal. See FL Receivables Tr. 2002-A v. Ariz. Mills, L.L.C.,
230 Ariz. 160, 168, ¶ 34 (App. 2012) (“The fact finder is the sole judge of the
facts and the credibility of the witnesses.”) (citing Walsh v. Advanced Cardiac
Specialists Chartered, 227 Ariz. 354, 361, ¶¶ 23-24 (App. 2011)).

¶11             The Neighbors nonetheless argue Giguere is not deprived of
privileges because “if Mr. Giguere had simply built his house in the proper
location, he would have built in accordance with the zoning code.” But
even if this is true, it is not the test. The record reflects Giguere was granted
the same privilege as many of his neighbors — to erect a structure within
the twenty-foot setback upon a showing of hardship — no more and no less.
We find no basis for reversal.

III.   Self-Imposed Hardship

¶12            The Neighbors argue insufficient evidence supports the
superior court’s finding that the circumstances were not self-imposed. See
Rivera v. City of Phx., 186 Ariz. 600, 603 (App. 1996) (concluding a variance
was improperly granted where the homeowner “created his own problem
by providing the City with an erroneous site plan”) (citations omitted);
Burns, 156 Ariz. 503 (rejecting a request for a variance for a free-standing
sign where the requesting party had created the hardship by entering into
agreements with manufacturers that prohibited their names and logos from
being included in a single sign). Although Giguere may well bear some
responsibility for the erroneous placement of his home, the Neighbors’
counsel admitted at oral argument that Giguere was not barred from
receiving a variance simply because it was sought after the structure was
built in violation of the zoning ordinances. Furthermore, the existence and
location of the right-of-way, power lines, and easements — circumstances
over which Giguere had no control — support the granting of the variance.
Accordingly, the Neighbors have not shown any abuse of discretion.

                               CONCLUSION

¶13           The superior court’s orders are affirmed.




                                       6
                     ADAMS et al. v. GIGUERE et al.
                        Decision of the Court

¶14           The Neighbors request an award of attorneys’ fees pursuant
to A.R.S. §§ 9-462.06(K), 12-348(A)(2), and 12-2030(A). Section 9-462.06(K)
merely authorizes an appeal from the decision of a municipal board and
does not create a substantive right to fees. Both A.R.S. §§ 12-348(A)(2) and
-2030(A) authorize an award of fees and expenses to a party who “prevails
by an adjudication on the merits” of certain claims. Because the Neighbors
are not the prevailing party, the request for fees is denied.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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