                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


    CALVIN ROBERTSON, a single man; CALVIN ROBERTSON dba
            Ehrenberg Swapmeet, an Arizona business,
                Plaintiff/Counterdefendant/Appellant,

                                          v.

                 LA PAZ COUNTY, a political subdivision,
                    Defendant/Counterclaimant/Appellee,

                                         and

              LA PAZ COUNTY BOARD OF SUPERVISORS,
                        Defendant/Appellee.

                              No. 1 CA-CV 13-0315
                               FILED 5-22-2014


             Appeal from the Superior Court in La Paz County
                        No. S1500CV201000142
                 The Honorable Michael J. Burke, Judge

                                    AFFIRMED


                                    COUNSEL

Law Office of David J. Hossler, Yuma
By David J. Hossler
Counsel for Plaintiff/Counterdefendant/Appellant
LaPaz County Attorney’s Office, Parker
By R. Glenn Buckelew
Counsel for Defendants/Counterclaimant/Appellees



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1             Calvin Robertson, dba Ehrenberg Swapmeet, (“Robertson”)
appeals the dismissal of his complaint and being enjoined from using his
property in violation of the zoning regulations by summary judgment in
favor of La Paz County and the La Paz County Board of Supervisors
(collectively, “the County”).      Because we find that the Board of
Supervisors (“the Board”) did not act arbitrarily or capriciously or abuse
its discretion in denying the special use permit, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Robertson owns 1.83 acres of property in La Paz County and
uses it to operate a swap meet and recreational vehicle (“RV”) park. The
property is zoned as a manufactured/mobile home subdivision district
and a general commercial district ("C-2").          The County’s zoning
regulations, however, provide that an RV park is not permitted on
property less than five acres. See La Paz Cnty. Bd. of Supervisors Res. No.
2002-22 (2002) (amending 1996 zoning regulations to establish a five-acre
minimum parcel size for an RV zoning district). The C-2 zoned property,
as a result, can only be used as an RV park if Robertson secured a special
use permit. See La Paz Cnty., Zoning Regulations (“Zoning Reg.”), app. B,
p. B-7 (1996).

¶3           Robertson was informed in 2002 that his RV park was in
violation of the zoning regulations by the County Department of
Community Development (“the Department”). Robertson then filed a
declaratory judgment action seeking authorization to continue the
operation of his RV park. See La Paz Cnty. Superior Court Case No.
CV 2002-0151. The superior court dismissed the action for lack of
jurisdiction because Robertson failed to exhaust his administrative
remedies by not applying for a special use permit.


                                     2
                        ROBERTSON v. LA PAZ
                         Decision of the Court

¶4            The Department issued a notice of violation to Robertson in
2007, and a second in 2009, for operating his RV park without a special use
permit or RV zoning. After the second notice, Robertson applied for a
special use permit.

¶5            At the hearing before the Planning and Zoning Commission,
the Department’s director recommended approving the special use permit
with conditions. The Commission discussed concerns about the septic
system, heard the objections of the landowner adjacent to Robertson’s
property, and heard from Robertson that he had resolved any citations
and that his neighbor was the only person objecting to the special use
permit. The Commission voted unanimously to recommend the denial of
the special use permit.

¶6            The Board subsequently considered Robertson’s application
for a special use permit. The Department’s director again recommended
approving the permit, but the Board voted unanimously to deny a special
use permit. Robertson was subsequently fined for his violation of the
zoning regulations.

¶7            Robertson filed a complaint in superior court challenging the
denial of the special use permit. He alleged that the denial of the special
use permit by the Board violated his substantive due process rights,
constituted a regulatory taking, and the post-denial citations by the
County amounted to an intentional infliction of emotional distress. The
County answered and filed a counterclaim to enjoin Robertson from using
his property in violation of the zoning regulations. Robertson responded
to the counterclaim.

¶8            The County subsequently filed a motion for summary
judgment. The County argued that the court could not substitute its
judgment for the Board’s legislative decision to deny the special use
permit and, alternatively, that the Board’s decision was an administrative
action which should be upheld because Robertson failed to show the
Board’s decision was against the weight of the evidence, unreasonable,
erroneous, or illegal as a matter of law. Robertson responded by arguing
that there was a factual dispute as to how and why the Board denied a
special use permit and whether that decision was arbitrary and capricious.
The court subsequently granted summary judgment to the County after
concluding the zoning decision was an administrative act, and Robertson
failed to show the decision was against the weight of the evidence,
unreasonable, erroneous, or illegal. As a result, the court dismissed




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                           ROBERTSON v. LA PAZ
                            Decision of the Court

Robertson’s claims and enjoined him from using his property in violation
of the zoning regulations.

¶9            Robertson filed a timely notice of appeal.         We have
jurisdiction pursuant to Arizona Revised Statutes section 12-2101(A)(1). 1

                                DISCUSSION

¶10            Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(a). We review the trial court’s grant of
summary judgment de novo, determining whether any genuine issue of
material fact exists and whether the trial court properly applied the law.
Rand v. Porsche Fin. Servs., 216 Ariz. 424, 429, ¶ 15, 167 P.3d 111, 116 (App.
2007).      When reviewing the decision of a zoning board, the board’s
decision is presumed correct, “and any attack on it must establish that the
decision was against the weight of the evidence, unreasonable, erroneous,
or illegal as a matter of law.” Rivera v. City of Phx., 186 Ariz. 600, 602, 925
P.2d 741, 743 (App. 1996); accord Mueller v. City of Phx. ex rel. Phx. Bd. of
Adjustment II, 102 Ariz. 575, 581, 435 P.2d 472, 478 (1967); 3 Edward H.
Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 62:36 (Arden H.
Rathkopf et al. eds., 4th ed. 2013) (“A court will not substitute its own
judgment for that of a board unless it is demonstrated that the latter’s
decision is arbitrary, contrary to law, or not supported by substantial
evidence.”). We are mindful that a governmental body making a zoning
decision does so in a quasi-administrative and legislative role. Town of
Paradise Valley v. Gulf Leisure Corp., 27 Ariz. App. 600, 605, 557 P.2d 532,
537 (1976). Thus, to avoid summary judgment Robertson had to establish
genuine issues of material fact showing the Board’s decision was against
the weight of the evidence, unreasonable, erroneous, or illegal.

¶11         Robertson contends that there is a genuine issue of material
fact – whether the Board acted reasonably by denying his special use
permit because all of the Board’s concerns were adequately addressed and
the Department recommended approving the special use permit. We
disagree.

¶12           Although the Board had to resolve conflicting evidence, the
fact that it denied the special use permit does not make its decision
unreasonable or against the weight of the evidence. The Board had


1   We cite to the current version of the statute absent material changes.



                                        4
                         ROBERTSON v. LA PAZ
                          Decision of the Court

discretion to weigh the evidence for and against the special use permit,
and decide whether to grant or deny the permit.              The Board’s
discretionary policy decision is not before us; rather, we consider only
whether the superior court correctly found there was some evidence to
support the Board’s decision. See Mueller, 102 Ariz. at 581-82, 435 P.2d at
478-79.

¶13           The Board had concerns about parking for the swap meet if
there was also an RV park on the property. The Director noted the
parking “shouldn’t be a problem” and could be relocated if necessary.
The Board also noted the history of building code violations and was told
there were currently no known violations. There were also concerns
about the small size of the lot in comparison to the zoning regulations for
an RV park and the need for revisiting the issue if a special use permit was
issued. The Board had discretion to weigh the Director’s answers to its
concerns in light of the zoning regulations. Courts do not reweigh the
evidence before the Board. Id. at 581, 435 P.2d at 478; Murphy v. Town of
Chino Valley, 163 Ariz. 571, 576, 789 P.2d 1072, 1077 (App. 1989). Here, the
zoning regulations state:

              No special use permit shall be issued unless evidence
              is available to indicate that the use will:

              1. be located, designed, and operated in a way that
              will be compatible with the livability . . . of abutting
              properties and the surrounding neighborhood;

              2. not seriously interfere with existing uses on
              adjacent properties . . . ;

              3. not impose an undue burden on any public
              improvements, facilities, utilities, or services available
              to the area.

See Zoning Reg. § VI-2-2(C). 2



2Although the County did not cite to the specific zoning regulation
governing special use permits, the record reveals that the Commission
and Board had concerns about parking and an adequate septic system.
Moreover, the plain language of the zoning regulation provision
anticipates that a landowner will seek a special use permit before using



                                      5
                         ROBERTSON v. LA PAZ
                          Decision of the Court

¶14           The Board raised legitimate concerns regarding the parking
capacity. The Director’s response that parking “should not be a problem”
arguably does not establish that the use is “compatible with the livability”
of existing neighboring property or that it will “not seriously interfere
with existing uses on adjacent properties.” See id. § VI-2-2(C)(1), (2).
There was also no response to the Commission’s question whether the
septic system was adequate to handle the needs of the swap meet and the
RV park. 3 Given the lack of evidence, the Board could reasonably
conclude that Robertson failed to show that the RV park would “not
impose an undue burden on any public improvements, facilities, utilities,
or services available in the area.” Id. § VI-2-2(C)(3). The Board, therefore,
was within its discretion to deny the permit. See 2 Patricia E. Salkin,
American Law of Zoning § 14:27 (5th ed. 2014) (“Failure on the part of the
applicant to . . . supply information reasonably required, may be a sound
basis for denial of permit.”).

¶15            Additionally, the recommendation of the Department to
approve the special use permit does not create a material issue of fact
precluding summary judgment. The Board cannot delegate to the
Department’s director its authority to decide whether the facts warrant the
grant or denial of a special use permit. See id. § 14:17 (noting that the
Board “may not default [its] obligation by relying wholly upon the
recommendation of a planning board or the opinion of municipal
officials.” (footnotes omitted)). The Board was within its discretion to
independently decide this matter. Robertson failed to show that a
reasonable juror could conclude that the Board’s “decision was against the
weight of the evidence, unreasonable, erroneous, or illegal as a matter of
law.” Rivera, 186 Ariz. at 602, 925 P.2d at 743. Accordingly, we affirm the
summary judgment dismissing Robertson’s claims and enjoining him
from using his property in violation of the zoning regulations.

¶16           Robertson also argues the County’s counterclaim is barred
by the doctrine of laches. Robertson did not raise the defense in response
to the County’s summary judgment motion. It was not an issue addressed
in the summary judgment pleadings. We do not consider arguments

the property for an otherwise nonconforming purpose. Here, Robertson
used his parcel as an RV park for more than seven years before seeking a
special use permit.

3The record before the Board included minutes from the Commission
hearing.



                                     6
                         ROBERTSON v. LA PAZ
                          Decision of the Court

raised for the first time on appeal, when that argument could have been
raised in and decided by the trial court. See Regal Homes, Inc. v. CNA Ins.,
217 Ariz. 159, 171, ¶ 52, 171 P.3d 610, 622 (App. 2007). Accordingly, we
will not address an argument raised for the first time on appeal.

                    ATTORNEYS’ FEES ON APPEAL

¶17         Robertson requests an award of attorneys’ fees and costs on
appeal. Because he did not prevail on appeal, we deny his request.

                             CONCLUSION

¶18           Based on the foregoing, we affirm the summary judgment in
favor of the County.




                                     :MJT




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