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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             BART M. SHEA, et al.,
                   Plaintiffs/Appellants/Cross-Appellees,

                                         v.

                       MARICOPA COUNTY, et al.,
                  Defendants/Appellees/Cross-Appellants.

                              No. 1 CA-CV 19-0124
                                FILED 2-27-2020


            Appeal from the Superior Court in Maricopa County
                         No. LC2017-000067-001
                  The Honorable Patricia A. Starr, Judge

                                   AFFIRMED


                                    COUNSEL

DKL Law, PLLC, Tempe
By David W. Lunn
Counsel for Plaintiffs/Appellants/Cross-Appellees

Maricopa County Attorney's Office, Phoenix
By Wayne J. Peck, Joseph Branco, D. Chad McBride
Counsel for Defendants/Appellees/Cross-Appellants
                SHEA, et al. v. MARICOPA COUNTY, et al.
                           Decision of the Court



                         MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Bart M. Shea and other landowners (collectively, the
"Neighbors") appeal the superior court's dismissal of their appeal from a
decision of the Maricopa County Board of Adjustment (the "Board") about
a neighboring landowner's use of property classified as "agricultural." For
the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            State law authorizes Arizona counties to exercise zoning
authority within certain constraints. See Arizona Revised Statutes ("A.R.S.")
§§ 11-811 (2020) (authorizing counties to adopt zoning ordinances); -812
(2020) (barring counties from enacting certain restrictions on use or
occupancy of land).1 At issue here is a provision in § 11-812 constraining a
county's power to regulate use or occupation of land used for, inter alia,
"general agricultural purposes." It states:

       Nothing contained in any ordinance authorized by this
       chapter shall: . . . [p]revent, restrict or otherwise regulate the
       use or occupation of land or improvements for railroad,
       mining, metallurgical, grazing or general agricultural
       purposes, if the tract concerned is five or more contiguous
       commercial acres.

A.R.S. § 11-812(A)(2).

¶3            Maricopa County Zoning Ordinance ("MCZO") § 1304
restates the prohibition on regulation of "the use or occupation of land . . .
for railroad, mining, metallurgical, grazing or general agricultural
purposes" and continues:



1      Absent material revision after the relevant date, we cite the current
version of a statute or ordinance.


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                SHEA, et al. v. MARICOPA COUNTY, et al.
                           Decision of the Court

       ARTICLE 1304.1. Property is not exempt from the [MCZO]
       and/or Building Safety Ordinance unless and until the
       Maricopa Planning and Development Department has issued
       a certificate of exemption for that property. In order to secure
       a certificate of exemption, an applicant shall submit a zoning
       clearance application, including site plan and other
       reasonable supporting documentation.

       ARTICLE 1304.2. Only property classified by the Maricopa
       County Assessor's office or the Arizona Department of
       Revenue as property used for one of the purposes
       enumerated in the first paragraph of this Section is eligible for
       exemption under this section. If property has been so
       classified, the property is exempt from the [MCZO] and/or
       Building Safety Ordinance, unless the Planning and
       Development Director independently determines that all or
       part of the property is not used primarily for one or more of
       the purposes enumerated in the first paragraph of this section.

(Footnote omitted.) See Raven Rock Constr., L.L.C. v. Bd. of Supervisors, 207
Ariz. 135, 139, ¶ 17 (App. 2004) ("As a practical matter, the county must
have a definite means of determining which property qualifies for this
exemption.").

¶4            The Maricopa County Assessor classified the property at
issue here (the "Property") as agricultural in mid-2016. The tax classification
was made pursuant to A.R.S. § 42-12151(4) (2020), which, as relevant,
defines "agricultural real property" to include "[l]and and improvements
devoted to commercial breeding, raising, boarding or training equine, as
defined in [A.R.S.] § 3-1201." The owner of the Property then applied for
and obtained a certificate pursuant to MCZO § 3401, confirming that the
Property is exempt from zoning under A.R.S. § 11-812.

¶5             Shea lives in Goldfield Ranch adjacent to the Property. He
became increasingly distressed as he watched construction of "massive
stables and riding arenas" and a private home on the Property and saw
marketing materials touting the Property as open "to the public for riding
lessons, roping events and other prohibited commercial activities."
According to Shea, the Property is open to the public for horse-related
activities, sometimes generating 120 "vehicle trips" a week to and from the
Property. He tried to file complaints with the County asserting the owner
was "inviting the public to [the] property for riding lessons, roping events




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                SHEA, et al. v. MARICOPA COUNTY, et al.
                           Decision of the Court

and other prohibited commercial activities." According to Shea, however,
the County "wouldn't take" his complaints.

¶6           The Neighbors then filed an application with the Board
purporting to seek an interpretation of the agricultural exemption granted
the Property. Explaining the request, Shea wrote:

       Interpretation and Appeal on first whether the county staff
       has autho[rity] to grant full exemption with extended rights
       without consulting the Board of Adjustment on each case.
       Can staff exempt all an[cillary] uses on the property that are
       not directly involved with the agricultural exemption. Does
       the Maricopa county Staff through this exem[ption] have the
       ability to grant this exemption inside a subd[ivision]
       with[out] procedure of a special use permit and create a
       reverse condemnation of adjoining property without due
       process. If change the use of a property and do not change
       the zoning under what definition is the property use
       classified.

¶7            After a hearing, the Board denied the application, and the
Neighbors sought review by the superior court. See A.R.S. § 11-816(D)
(2020) (de novo review in superior court). After the court affirmed the
Board's denial, the Neighbors filed a timely appeal and the County filed a
timely cross-appeal.

                               DISCUSSION

A.     The Cross-Appeal.

¶8             The County argues this court should dismiss the Neighbors'
appeal for lack of jurisdiction. The County contends the Neighbors'
application to the Board was beyond the Board's jurisdiction under § 11-
816(B), with the result that neither the superior court nor this court has
jurisdiction to review its decision. The County twice unsuccessfully moved
to dismiss the Neighbors' case in the superior court. As in the superior
court, the County now argues that the Neighbors' application to the Board
was outside the Board's jurisdiction because they did not seek an
interpretation of the MCZO. The application, however, fell within the
Board's jurisdiction to the extent that it sought an understanding of MCZO
§ 3401 and its relation to the relevant state tax-classification statute, A.R.S.
§ 42-12151(4). See A.R.S. § 11-816(C) (allowing appeal to a board of
adjustment "by any person who feels that there is error or doubt in the
interpretation of the ordinance"). Because the superior court had


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               SHEA, et al. v. MARICOPA COUNTY, et al.
                          Decision of the Court

jurisdiction under § 11-816(D), we have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2020)
and -2101(A)(1) (2020).

¶9             We also decline the County's request to dismiss the appeal for
lack of standing. As an adjacent property owner, Shea at a minimum has a
sufficient interest in the development and use of the Property to allow him
to sue. Although the County argues Shea did not show that the
development of the Property affected the value of his land, the record from
the superior court (including photographs showing construction on the
Property, along with Shea's testimony), defeat the County's assertion that
he lacks standing.

B.    The Superior Court Did Not Err in Affirming the Board.

¶10           On appeal, the Neighbors do not challenge the grant of the
agricultural tax classification to the Property. Instead, they argue the
County erred in concluding that the Property is being used for purposes
permitted under that classification. See MCZO § 1304.2 ("If property has
been so classified, the property is exempt from the [MCZO], unless the
Planning and Development Director independently determines that all or
part of the property is not used primarily for one or more of the purposes
enumerated in the first paragraph of this section.").

¶11           The Neighbors, however, did not offer evidence sufficient to
support their general assertions that the Property is being used for purposes
not permitted by its agricultural classification under § 42-12151(4). On
appeal, they cite a "Groupon" that they contend showed that riding lessons
were being given on the Property, but they offered no evidence that lessons
were being given to persons who did not board their horses on the
Property.

¶12            Darren Gerard, deputy director of the County Planning and
Development Department, testified that if the County received and
confirmed a complaint about an impermissible use within the agricultural
classification, the result would be a process culminating in a proceeding
before a hearing officer, whose decision could be appealed to the Board. See
A.R.S. § 11-815(E) (hearing officer), (G) (county may delegate review of
hearing officer's decision to board of adjustment) (2020). The Neighbors
argue on appeal they offered "compelling evidence at trial that the County
grossly expanded what uses were permitted under an agricultural
exemption." But they fail to show they sought review by the Board in this




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                SHEA, et al. v. MARICOPA COUNTY, et al.
                           Decision of the Court

matter of any particular decision or interpretation of the MCZO by a
hearing officer or the Board with respect to any use of the Property.2

¶13             As for what uses are permitted within an agricultural
classification, the Neighbors repeatedly cite a County "Directive" issued in
2012 "[t]o ensure consistent treatment of zoning for Agricultural and
Equestrian Uses" of land in rural areas. Maricopa County Planning & Dev.
Dep't, Department Directive: DD-2012-01, at 1 (2012). Under that Directive,
facilities used for public events ("rodeos, team roping, barrel racing") are
not exempt from zoning. Id. at 2. But the Neighbors failed to offer evidence
to support their general contention that such activities are taking place on
the Property. Indeed, the record before the superior court included
evidence that the County has told the owners of the Property that they will
need to obtain a special use permit before they conduct "Public Events (such
as rodeos, team roping, barrel racing, etc.)"; "Mounted cowboy shooting";
"Riding lessons (except those in conjunction with boarding of horses)"; and
"Horse rentals, staging for off-site trail rides." The record also included an
email from Gerard to a lawyer for the owners of the Property directing that
"all riding lessons will be related to the training of horses that are boarded
at the facility, and that equine events will be for breeding and training and
not be open to the general public," and that a single-family home used as
the principle residence of the owners of the Property "is not necessarily
considered part of the agricultural use."

¶14           Nor did the superior court err when it ruled the Neighbors
were afforded due process. As that court held, its own de novo review of
the application provided the process that was due the Neighbors. And,
contrary to the Neighbors' contention, the certification of the Property as
agricultural for purposes of § 11-812 was not a rezoning of the Property.
Under MCZO § 3401, the agricultural-exemption certification follows
automatically upon a showing that a property has been classified as
agricultural for tax purposes. See Raven Rock, 207 Ariz. at 139-40, ¶ 19
("insistence on a verification of the classification of the property . . . is a
matter of procedure only"). Nor did the Neighbors offer evidence

2       The Neighbors' opening brief asserts that the County "conducted no
investigation before it terminated [their] complaint." But the Neighbors did
not challenge the County's response to any specific complaint they raised,
either in their application to the Board or in the superior court proceedings.
To the contrary, the County's counsel remarked during the hearing in the
superior court that Shea's complaint about a purported public event on the
Property was investigated, closed and, after an appeal, was only then
pending before the Board. See A.R.S. § 11-815(G).


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               SHEA, et al. v. MARICOPA COUNTY, et al.
                          Decision of the Court

supporting their contention that the Board was biased against them. They
assert the County "shut down" an investigation of their complaint due to
the intervention of a member of the Board, but they do not cite that
complaint (or any other complaint) as the subject of their application to the
Board.

                               CONCLUSION

¶15         For the reasons stated, the decision of the superior court is
affirmed. The County is awarded its costs on appeal, conditioned upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




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




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