                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    DAVID NOVAK, Plaintiff/Appellant,

                                        v.

         THE TOWN OF FOUNTAIN HILLS, Defendant/Appellee.

                             No. 1 CA-CV 19-0412
                               FILED 2-18-2020


           Appeal from the Superior Court in Maricopa County
                          No. CV2018-056521
                  The Honorable Cynthia Bailey, Judge

                                  AFFIRMED


                                   COUNSEL

David Novak, Fountain Hills
Plaintiff/Appellant

The Doyle Firm, P.C., Phoenix
By William H. Doyle, Brandon Millam
Counsel for Defendant/Appellee



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.
                      NOVAK v. FOUNTAIN HILLS
                         Decision of the Court

J O N E S, Judge:

¶1            David Novak appeals the dismissal of his complaint for
declaratory judgment against the Town of Fountain Hills (the Town). For
the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In December 2018, Novak filed a complaint seeking a
judgment declaring him exempt from Fountain Hills Town Code (Code)
§ 12-3-9(C),1 http://fountainhills.town.codes/TC/12-3-9, restricting the
number of vehicles permitted to be parked outside a single-family
dwelling. Code § 12-3-9(C) provides: “The maximum number of vehicles
permitted to be parked outside of an enclosed garage in a single-family
dwelling within a residentially zoned area shall be one for each 750 square
feet of livable area of a residence, as specified in the Maricopa County
Assessor’s records.” Applying this calculation, Novak is permitted to park
a maximum of three vehicles on the driveway outside his residence in
Fountain Hills.

¶3            Within his complaint, Novak alleged he had been parking six
vehicles on the driveway for five years before Code § 12-3-9(C) was adopted
in June 2017 and should be “grandfathered in” to the circumstances existing
when the property was purchased, when there were no parking restrictions.
The trial court granted the Town’s motion to dismiss for failure to state a
claim, and Novak timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶4             Novak argues the trial court erred in dismissing his complaint
because he has “an absolute lawful right to obtain a declaratory judgement
on his established rights to the grandfathered useage [sic] of the property.”
(Emphasis omitted).2 We review an order dismissing a complaint for
failure to state a claim de novo and will affirm if the plaintiff would not, as
a matter of law, be entitled to relief “under any interpretation of the facts


1      Absent material changes from the relevant date, we cite the current
version of statutes and regulations.

2       For purposes of this decision, we assume without deciding that
Novak, the occupant of property he does not own, has standing to assert
the claim.


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                       NOVAK v. FOUNTAIN HILLS
                          Decision of the Court

susceptible of proof.” Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8
(2012) (citing Fid. Sec. Life Ins. v. State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4
(1998)).

¶5            The “grandfathered rights” Novak relies upon arise from
A.R.S. § 9-462.02(A), which states in relevant part: “Nothing in an
ordinance or regulation authorized by this article [governing municipal
zoning] shall affect existing property or the right to its continued use for the
purpose used at the time the ordinance or regulation takes effect.” See also
Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 565, ¶ 8 (App.
2013). Novak argues the Town is prohibited from enforcing Code § 12-3-
9(C) because it affects his existing practice of parking six vehicles on the
driveway.

¶6            But A.R.S. § 9-462.02(A) does not prohibit a municipality from
passing any regulation that has any physical effect on a property. Watanabe
v. City of Phx., 140 Ariz. 575, 578 (App. 1984). By its terms, A.R.S. § 9-
462.02(A) only prohibits retroactive application of a zoning ordinance. It
does not prohibit enforcement of a non-zoning ordinance, adopted
pursuant to the municipality’s general police power to protect the public
health, safety, and welfare. Watanabe, 140 Ariz. at 577-78.

¶7            At its most basic level, a zoning ordinance is a law that
governs land use. See A.R.S. § 9-462(A)(5) (defining a “zoning ordinance”
as “a municipal ordinance regulating the use of the land or structures, or
both”); Outdoor Sys., Inc. v. City of Mesa, 169 Ariz. 301, 309 (1991) (“Zoning
is fundamentally the control of land use.”); Black’s Law Dictionary (11th ed.
2019) (defining “zoning ordinance” as “[a] city ordinance that regulates the
use to which land within various parts of the city may be put”). Although
the term “land use” may, to the layman, encompass the placement of
specific items of personal property in specific places, as Novak contends,
“[t]echnical words and phrases and those which have acquired a peculiar
and appropriate meaning in the law shall be construed according to such
peculiar and appropriate meaning.” A.R.S. § 1-213.

¶8             In the context of municipal zoning, the existing land use that
is entitled to protection under A.R.S. § 9-462.02(A) is the “utilization of [a]
premises so that [it] may be known in the neighborhood as being employed
for a given purpose.” Watanabe, 140 Ariz. at 578 (quoting Kubby v.
Hammond, 68 Ariz. 17, 24 (1948)); cf. A.R.S. § 12-1136(3) (defining a “land
use law” as a law that “regulates the use or division of land or any interest
in the land”). Thus, for purposes of A.R.S. § 9-462.02(A), a zoning ordinance
is one that governs the purpose for which the land may be used — for


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                       NOVAK v. FOUNTAIN HILLS
                          Decision of the Court

example, for agricultural, residential, industrial, commercial, or other
purposes.

¶9            We agree with the Town that the parking restriction,
contained within the Town’s traffic code in a chapter titled “Parking,” does
not purport to regulate land use; it simply defines the locations where
vehicles may be placed upon the property. See Whiteco Outdoor Advert. v.
City of Tucson, 193 Ariz. 314, 318, ¶ 12 (App. 1998) (concluding that a
municipal ordinance governing the placement of lighting fixtures was not
a zoning ordinance subject to A.R.S. § 9-462.02(A) because the protected use
of the landowner’s property was to “use . . . illuminated outdoor
advertising structures and the surrounding land on which they sit, not the
mounting or location of lighting fixtures that provide the billboard
illumination”) (citing Outdoor Sys., 169 Ariz. at 309-10). Novak has no
“inherent or vested right in the continuation of a particular manner of
parking automobiles on [the] property.” Gear v. City of Phx., 93 Ariz. 260,
264 (1963); see also City of Phx. v. Garretson, 234 Ariz. 332, 336, ¶ 15 (2014)
(noting the institution of parking regulations are a routine exercise of
municipal police power that do not result in compensable harm to
landowners) (citing State ex rel. Herman v. Schaffer, 105 Ariz. 478, 483 (1970)).
Nor does the parking restriction in Code § 12-3-9(C) affect the continued
existing use of Novak’s property as zoned — that is, for a single-family
residence. See Watanabe, 140 Ariz. at 578 (concluding that a municipal
ordinance requiring a parking lot be paved “has no effect on the existing
nonconforming uses of the subject properties as they are known in the
neighborhood, that is, as retail stands or manufacturing premises”); cf. Gear,
93 Ariz. at 262, 264 (concluding a municipal ordinance requiring curbs and
driveways that effectively eliminated two parking spaces did not constitute
a serious interference with the owner’s right to use his property).

¶10           Because Code § 12-3-9(C) is not a zoning ordinance regulating
land use, the “grandfathered rights” identified in A.R.S. § 9-462.02(A) do
not apply. Novak cites no other authority suggesting he is exempt from
application of the Town’s traffic and parking regulations. Accordingly, his
complaint fails to state a claim for relief.

¶11           Novak also argues the trial court judge did not act fairly and
impartially in the disposition of this matter. Nothing in the record suggests
the judge was biased, had a conflict of interest, or was otherwise unable to
render fair judgment; nor did our review reveal any irregularity in the
proceedings or misapplication of law.




                                       4
                    NOVAK v. FOUNTAIN HILLS
                       Decision of the Court

                            CONCLUSION

¶12           The trial court’s order dismissing Novak’s complaint for
declaratory judgment is affirmed.




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




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