                    SUPREME COURT OF ARIZONA
                            En Banc

STAGECOACH TRAILS MHC, L.L.C.,    )   Arizona Supreme Court
                                  )   No. CV-12-0241-PR
              Plaintiff/Appellee, )
                                  )   Court of Appeals
                 v.               )   Division Two
                                  )   No. 2 CA-CV 11-0085
CITY OF BENSON, a municipal       )
corporation; CITY OF BENSON       )   Cochise County
BOARD OF ADJUSTMENT, a body       )   Superior Court
politic; and BRAD HAMILTON,       )   No. CV-201000395
Zoning Administrator for the      )
City of Benson,                   )
                                  )
           Defendants/Appellants. )   O P I N I O N
                                  )
__________________________________)

        Appeal from the Superior Court in Cochise County
             The Honorable Stephen M. Desens, Judge
             The Honorable Wallace R. Hoggatt, Judge

                            VACATED
________________________________________________________________

          Opinion of the Court of Appeals Division Two
                229 Ariz. 536, 278 P.3d 314 (2012)

                      VACATED AND REMANDED
________________________________________________________________


LEWIS AND ROCA LLP                                            Tucson
     By   John C. Hinderaker
          Kimberly A. Demarchi
          Jeffrey L. Sklar
Attorneys for Stagecoach Trails MHC, L.L.C.

SIMS MURRAY                                                 Phoenix
     By   Jeffrey T. Murray
          Kristin M. Mackin
Attorneys for City of Benson, City of Benson Board of
Adjustment, and Brad Hamilton
LEAGUE OF ARIZONA CITIES AND TOWNS                                             Phoenix
     By   Joni L. Hoffman

and

SORENSEN LAW, PLLC                                                             Phoenix
     By   Lesli Sorensen

Attorneys for Amicus Curiae League of Arizona Cities and Towns
________________________________________________________________

B A L E S, Vice Chief Justice

¶1         This    case       involves      Stagecoach       Trails    MHC,   L.L.C.’s

quest for a permit to install a new home in its manufactured

home park after a space became vacant.                   A key issue is whether

the   entire    park,    or    only    an   individual        space   therein,    is   a

nonconforming      use,       exempt     under      A.R.S.    §     9-462.02(A)    from

complying with provisions of the City of Benson’s zoning code.

The trial court ruled that the entire park is a nonconforming

use, but the court of appeals declined to address that issue,

ruling that the trial court lacked jurisdiction over certain

claims because they had not been administratively exhausted.

¶2         We     hold    that     the      trial     court       properly    exercised

jurisdiction.      Accordingly, we vacate the opinion of the court

of appeals and remand to that court to consider, among any other

issues, whether the park as a whole or an individual space is

the nonconforming use.             We also hold that Stagecoach is not

entitled to an award of attorney fees under A.R.S. § 12-2030

because this is not a mandamus action.


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                                                  I.

¶3           Stagecoach operates a 50-space manufactured home park

in Benson.        In 1998, the City amended § 16 of the Benson Zoning

Regulations to increase the size and setback requirements for

spaces    within        manufactured          home          parks.            The     City     did       not

initially        apply     the       amendments             to     existing          parks,       but       it

notified park operators in 2009 that it would begin enforcing

the requirements when individual homes were replaced.

¶4           Municipal         zoning       regulations                 are    subject       to    A.R.S.

§ 9-462.02(A),           which        provides              that        “[n]othing           in       [such

regulations] shall affect existing property or the right to its

continued        use    for    the    purpose          used        at    the    time     the      .     .    .

regulation        takes       effect,       nor        to    any        reasonable       repairs            or

alterations        in    buildings      or        property          used       for    such     existing

purpose.”         The right to continue a nonconforming use, however,

does   not       authorize       a   different          use        inconsistent         with       zoning

regulations.           Outdoor Sys., Inc. v. City of Mesa, 169 Ariz. 301,

308, 819 P.2d 44, 51 (1991); Patricia E. Salkin, 2 American Law

of Zoning § 12.36 (5th ed. 2012).

¶5           In January 2010, Stagecoach applied for a permit to

install a manufactured home on space 27 after the space became

vacant.      The City’s zoning administrator denied the application,

asking    Stagecoach          to     show    that           the    home       would     comply          with

amended      §    16     because,       under           §    18     of        the     City’s       zoning

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regulations, a new building must conform to existing regulations

when it replaces a building that was a nonconforming use.                                The

zoning administrator directed Stagecoach to show, among other

things,   that    the    new    manufactured       home        would       meet    setback

requirements applicable to lots in an R-3 District and have two

improved parking spaces.           (Apart from § 16, the City’s zoning

code in § 7 identifies requirements for areas designated as R-3

Residential Districts.)

¶6         Stagecoach appealed the permit denial to the City’s

Board of Adjustment (“BOA”), arguing that the entire park is a

nonconforming use under § 9-462.02(A) and that it was entitled

to   replace     an     individual       home    without        relinquishing            the

nonconforming-use       status.      Rejecting          this    argument,         the    BOA

agreed    with   the     City     that    the    particular        space          was     the

nonconforming use and affirmed the zoning administrator’s denial

of the permit.

¶7         Stagecoach then filed a two-count special action in

superior court.        Count I asked the court to declare the amended

§ 16 invalid, to direct the zoning administrator to process or

grant the permit without applying that section, and to award

Stagecoach its attorney fees and costs under § 12-2030.                                 Count

II   appealed    the    BOA’s   decision        under    A.R.S.        §   9-462.06(K),

arguing that even if the amendments to § 16 were valid, the

regulation did not apply because the park was a nonconforming

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use     under    §     9-462.02(A)        and       §   18     of    the     Benson    zoning

regulations.

¶8          After Stagecoach sued, the City acknowledged that the

amendments to § 16 had not been properly adopted.                                The zoning

administrator then sent Stagecoach a letter in July 2010 stating

that the permit application had been reconsidered without regard

to the amended § 16 and was being denied because the site plan

did not, among other things, show that space 27 would conform to

the setback requirements for the R-3 District.

¶9          The       City    filed   a   motion         asking      the    trial   court    to

declare Count I moot because, regardless of the validity of the

amended § 16, the City would not issue the permit.                                  The court

denied the motion and, instead, granted partial summary judgment

to Stagecoach, ruling that the 1998 amendments to § 16 were

void.      Stagecoach         then    filed         a   supplemental        special    action

complaint challenging the reasons for denial outlined in the

City’s    July       2010    letter   and     asking         the    court   to   direct     the

zoning administrator to issue the permit.

¶10         The       City     issued     another         letter      to     Stagecoach      in

September 2010, again explaining that space 27 did not comply

with the City’s zoning requirements for an R-3 District.                                  With

regard to the denial of the permit, the September 2010 letter

was identical to the January 2010 letter except the September

letter (1) did not refer to size requirements for individual

                                                5
spaces    imposed      by     the    amended     §    16,    (2)   explained     how    R-3

setback    requirements          should     be       measured,      and    (3)   required

Stagecoach to identify one improved parking space instead of

two.      Stagecoach         filed    a   second     supplemental         special    action

complaint challenging the permit denial in the September 2010

letter.

¶11            The trial court denied the City’s motions to dismiss

the supplemental special action complaints.                         It ruled that the

BOA had considered not only the application of amended § 16, but

also whether Stagecoach had a right to place a new manufactured

home on space 27 as a nonconforming use.                      Accordingly, the trial

court     ruled       that     Stagecoach        had        properly      exhausted     its

administrative remedies and was not required to bring the issues

raised    in    the    zoning        administrator’s         two   additional       letters

before the BOA.         The court ordered the City to issue the permit,

characterizing the order as equitable relief in the nature of

mandamus, and awarded attorney fees and costs to Stagecoach.

¶12            The City appealed.           The court of appeals reversed the

trial court’s denial of the City’s motion to dismiss the two

supplemental       special       action     claims,         its    grant    of   mandamus

relief, and its award of attorney fees.                       Stagecoach Trails MHC,

L.L.C. v. City of Benson, 229 Ariz. 536, 543 ¶ 27, 278 P.3d 314,

321 (App. 2012).             Noting that judicial review of BOA decisions

is limited to the record before the board at the time of its

                                             6
decision, see A.R.S. § 9-462.06(K), the court of appeals stated

that the BOA had not considered whether space 27 would have been

a     legal   use    before        the    adoption          of    the    amended        § 16.

Stagecoach, 229 Ariz. at 539-40 ¶¶ 15, 17-18, 278 P.3d at 317-

18.      It   therefore      held    that      the       trial   court    did     not   have

jurisdiction to consider the letters of July and September 2010

outlining     additional      reasons       for      denying      the    permit      because

those issues had not been administratively exhausted under § 9-

462.06.       Id.   at    540-41    ¶    19,       287    P.3d   at   318-19.        Because

Stagecoach had not obtained relief in the nature of mandamus,

the court of appeals also held that the trial court erred in

granting mandamus relief and awarding attorney fees under A.R.S.

§ 12-2030.     Id. at 542 ¶¶ 23-24, 287 P.2d at 320.

¶13           We granted Stagecoach’s petition for review to address

the    exhaustion        requirement      and       the     recovery     of   fees      under

§ 12-2030.      We have jurisdiction under Article 6, Section 5(3)

of the Arizona Constitution and A.R.S. § 12–120.24.

                                           II.

¶14           A party must exhaust available administrative remedies

“before appealing to the courts.”                        Minor v. Cochise Cnty., 125

Ariz. 170, 172, 608 P.2d 309, 311 (1980).                        Consistent with this

principle, trial courts generally lack jurisdiction to review

challenges to a zoning administrator’s decision that have not

been appealed to the board of adjustment.                         See, e.g., Neal v.

                                               7
City of Kingman, 169 Ariz. 133, 136, 817 P.2d 937, 940 (1991)

(holding that under § 9-462.06, a trial court can only review

claims    litigated        before    the    board      of    adjustment       and    may    not

review additional claims not raised before the board); Sw. Soil

Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 442 ¶ 16, 36

P.3d 1208, 1212 (App. 2001) (holding that trial court lacked

jurisdiction over claims in supplemental complaint seeking to

challenge         zoning       administrator’s          decision           without     first

appealing to board of adjustment).                     The court of appeals relied

on    this     rule      to    conclude       that      the        trial     court    lacked

jurisdiction to review the zoning administrator’s denial of a

permit in the July and September 2010 letters.                             Stagecoach, 229

Ariz. at 540 ¶¶ 17-18, 278 P.3d at 318.

¶15          We agree with the trial court that Stagecoach was not

required     to       appeal       again    to    the        BOA     after     the    zoning

administrator reaffirmed his earlier denial of a permit.                                    The

parties, although differing on many issues, have consistently

recognized        that   a    key   issue    is     whether        the     entire    park    or

instead      an     individual        space       is        the     nonconforming          use.

Stagecoach has never argued that the new manufactured home on

space 27 will comply with the R-3 setback requirements or any

requirement for improved parking spaces.                            Instead, Stagecoach

has   argued      that     these    requirements        do    not    apply    because       the

entire park is the nonconforming use and replacing individual

                                             8
manufactured homes within the park is merely a continuation of

the existing use that does not alter the park’s nonconforming

status.          In    contrast,        the    City    argues     that,    because       the

individual space is the nonconforming use, placing a new home on

the space is a different use that must satisfy current zoning

requirements.              The City has not argued, however, that if the

park      is    the   nonconforming         use,    replacing     an    individual      home

would alter the use and subject the park, and each space, to

current zoning regulations.

¶16             Stagecoach raised the nonconforming-use issue before

the BOA in April 2010, but the BOA agreed with the City that the

individual space, not the entire park, was the nonconforming

use,      and    therefore        setbacks    and     other    requirements      could    be

imposed when a home is replaced.                        Stagecoach challenged this

determination in the trial court.                      After recognizing that the

amendments to § 16 were invalid, the City reaffirmed its denial

of    a   permit      on    the    theory     that,    because    the    space    was    the

nonconforming use, the R-3 District requirements apply to the

installation of a new manufactured home.                       No purpose would have

been      served      by    requiring    Stagecoach       to    appeal    the    July    and

September 2010 letters to the BOA, which had already rejected

Stagecoach’s arguments that space 27 was not subject to these

requirements.              Exhaustion is not required when the pursuit of

administrative remedies would be futile.                        See Minor, 125 Ariz.

                                               9
at 173, 608 P.2d at 312; Estate of Bohn v. Waddell, 174 Ariz.

239, 248, 848 P.2d 324, 333 (App. 1992).

¶17         In    these      circumstances,         the    trial   court    properly

exercised        jurisdiction         over        Stagecoach’s      initial       and

supplemental special-action claims.                 Accordingly, we remand the

case to the court of appeals to address whether Stagecoach’s

entire park or only each space is entitled to nonconforming-use

status.     Our remand does not preclude the court of appeals from

addressing other issues, not decided here, properly raised by

the City in appealing from the trial court’s judgment or by

Stagecoach in responding to the appeal.

                                        III.

¶18         We turn to the award of attorney fees under § 12-2030.

This statute requires a court to award fees to a party that

“prevails by an adjudication on the merits in a civil action

brought by the party . . . to compel a state officer or any

officer of any political subdivision of this state to perform an

act   imposed     by   law   as   a   duty     on    the   officer.”       Fees   are

awardable under § 12-2030 in actions that either seek relief in

the nature of mandamus or are statutorily designated as mandamus

actions.    See A.R.S. § 19-121.03(A) (authorizing mandamus action

to    compel     election      officer       to     certify    ballot      measure);

Fleischman v. Protect Our City, 214 Ariz. 406, 410 ¶ 26, 153

P.3d 1035, 1039 (2007) (holding § 12-2030 does not authorize fee

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award     in     action       under     §    19-121.03(B)          challenging              officer’s

completed certification).

¶19             An action is in the nature of mandamus if it seeks to

compel a public official to perform a non-discretionary duty

imposed by law.           Sears v. Hull, 192 Ariz. 65, 68 ¶ 11, 961 P.2d

1013, 1016 (1998); see also Marbury v. Madison, 5 U.S. 137, 169

(1803)     (discussing             nature     of      mandamus);           A.R.S.       §    12-2021

(authorizing writ of mandamus to compel “performance of an act

which the law specially imposes as a duty resulting from an

office,        trust    or       station”).           An    application           for       mandamus,

however,       is   not      a     substitute       for     an     appeal     challenging          an

administrative          decision,           which      instead        proceeds          through     a

statutory       appeal       or    an   action        for   writ      of    certiorari.           See

A.R.S. § 12-2001; Rosenberg v. Ariz. Bd. of Regents, 118 Ariz.

489, 493, 578 P.2d 168, 172 (1978).

¶20             Stagecoach alleged two counts in its special action

complaints.            Count       II   sought      review       of    the    BOA’s         decision

pursuant to § 9-462.06(K), but that statute does not authorize a

mandamus action or relief in the nature of mandamus and thus

cannot support a fee award under § 12-2030.                                 Count I sought a

declaratory judgment invalidating the amendments to § 16 and a

determination          that       the   zoning      administrator           had    not       properly

applied the zoning regulations in denying a permit.                                          Count I

also    sought      “mandamus”          directing       the      zoning      administrator         to

                                                 11
process the application or issue the permit notwithstanding the

reasons for denial noted in his letters.

¶21           Although Stagecoach styled its claim in Count I as one

for mandamus, the action does not seek relief in the nature of

mandamus.      Stagecoach does not challenge an officer’s failure to

act, but instead contends he either misapplied or misinterpreted

the regulations.            Cf. Fleischman, 214 Ariz. at 410 ¶ 26, 153

P.3d at 1039 (holding fees not awardable under § 12-2030 in

action challenging legality of clerk’s certification of ballot

measure).      The zoning administrator complied with his legal duty

by considering and acting on Stagecoach’s permit application.

That Stagecoach challenged the denial does not mean the zoning

administrator failed “to perform an act imposed by law.”                            A.R.S.

§ 12-2030(A); see also id. § 12-2021.

¶22           That     Stagecoach     might      ultimately       prevail,     and     the

trial court’s order that the City issue a permit for space 27

might    be   upheld,       does   not   suffice      to   make    this   a    mandamus

action.       Cf. Pedersen v. Bennett, 230 Ariz. 556, 560 ¶ 21, 288

P.3d 760, 764 (2012) (holding § 12-2030 did not require fee

award when plaintiffs ultimately prevailed in action to compel

Secretary      of    State    to   accept    initiative       petitions       but    legal

duties    were       only    clarified      through    litigation      itself).          A

conclusion that an action is one for mandamus merely because a

court     ultimately         orders   compliance       with    its    ruling        would

                                            12
effectively     eliminate       the    well-recognized         distinction       between

mandamus and actions seeking review of administrative actions.

It    also   would    extend    the    mandatory       fee     award    provisions     of

§ 12-2030 to many contexts in which the legislature apparently

intended to apply the fee-award provisions (and limitations) of

A.R.S. § 12-348 (authorizing fee awards in certain cases for

prevailing     parties       against     the      state   or    cities,     towns,     or

counties).

¶23          Our     conclusion       also     comports      with   other    court     of

appeals’ decisions holding that a challenge to a city’s denial

of a zoning permit is not an action in the nature of mandamus.

See Circle K Convenience Stores, Inc. v. City of Phoenix, 178

Ariz. 102, 103, 870 P.2d 1198, 1199 (App. 1993); U.S. Parking

Sys. v. City of Phoenix, 160 Ariz. 210, 213, 772 P.2d 33, 36

(App.    1989).         We     disapprove         of   Motel    6      Operating     Ltd.

Partnership v. City of Flagstaff, 195 Ariz. 569, 572 ¶ 17, 991

P.2d 272, 275 (App. 1999), insofar as that decision suggests

that fees are awardable under § 12-2030 merely because a party

prevails in challenging a city’s denial of a zoning permit.

¶24          Because this is not a mandamus action, Stagecoach is

not entitled to fees under § 12-2030.                  Our decision vacating the

trial    court’s     award     of   fees     under     this    statute      is   without

prejudice to Stagecoach seeking, or the City opposing, an award

of fees under other statutes if Stagecoach ultimately prevails.

                                             13
We    deny   Stagecoach’s     request     for   an   award   of   fees   under

§ 12-2030 for the proceedings before this Court.

                                        IV.

¶25          For the reasons stated, we vacate the opinion of the

court of appeals and remand to that court to consider whether

the   park   as   a   whole   or   an   individual   space   is   entitled   to

nonconforming-use status and other relevant, unaddressed issues

raised in the City’s appeal from the trial court’s judgment.



                               __________________________________
                               Scott Bales, Vice Chief Justice




CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
A. John Pelander, Justice


__________________________________
Robert M. Brutinel, Justice


__________________________________
Ann A. Scott Timmer, Justice




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