                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


EMMETT McLOUGHLIN REALTY,                       )          2 CA-CV 2001-0198
INC., and QUIK-MART STORES, INC.,               )          DEPARTMENT A
                                                )
                      Plaintiffs/Appellants,    )          OPINION
                                                )
                     v.                         )
                                                )
PIMA COUNTY,                                    )
                                                )
                          Defendant/Appellee.   )
                                                )


              APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                     Cause No. C20003514

                            Honorable Char les V. Harrington, Judge

                                         AFFIRMED


Ethan Steele and Jeffrey M. Neff                                                        Tucson
                                                            Attorneys for Plaintiffs/ Appellants

Barbara LaWall, Pima County Attorney
 By Amelia Craig Cramer and Christopher Straub                                       Tucson
                                                            Attorneys for Defendant/Appellee

Patricia A. Or ozco, Yuma County Attorney
 By Gregory T. Torok                                                                  Yuma
                                                                 Attorneys for Amicus Curiae
                                                                                Yuma County

Jorden, Bischoff, McGuire & Rose, P.L. C.
 By Douglas A. Jorden and Michele A. Hentrich                                       Phoenix
                                                                  Attorneys for Amici Curiae
                                                               American Planning Association
                                                               and the Arizona Chapter of the
                                                               American Planning Association
B R A M M E R, Presiding Judge.


¶1             The question presented in this appeal is whether A. R.S. § 11-829(F), now (G),

which proscribes counties from rezoning land in a manner that restricts the permitted uses without

the landowner’s permission, violates the Arizona Constitution. 1 As did the trial court, we find the

“anti-downzoning” statute unconstitutional and, therefore, affirm its ruling granting partial

judgment on the pleadings.

                                           Background

¶2             In 1998, the legislature added subsection (F) to § 11-829. 1998 Ariz. Sess. Laws,

ch. 55, § 1; 1998 Ariz. Sess. Laws, ch. 204, § 10. Subsection (F) pr ovided:

                       The legislature finds that a rezoning of land that changes the
               zoning classification of the land or that restricts the use or reduces
               the value of the land is a matter of statewide concern and such a
               change in zoning that is initiated by the governing body or zoning
               body shall not be made without the express written consent of the
               property owner. The county shall not adopt any change in a zoning
               classification to circumvent the purpose of this subsection.

¶3             In April 2000, the Pima County Board of Supervisors considered and approved a

county-initiated rezoning of a parcel of land owned by Emmett McLoughlin Realty, Inc. , and

Quik-Mart Stores, Inc. (collectively, McLoughlin), from CB-1 to a combination of SR and CR-2

zoning. Although numerous business uses are permitted within the former zoning classification,



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         The parties focus their arguments on § 11-829(F)’s downzoning clause, but the statute also
provides that counties may not, without a property owner’s consent, initiate “a rezoning of land
that changes the zoning classification of the land.” Although this appears to limit all county-
initiated rezoning, we confine our discussion, as did the parties, to the subsection’s effect on
downzoning.

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the latter two permit only residential uses. McLoughlin did not consent to the rezoning and filed

this action challenging Pima County’s downzoning of the property. Pima County admits its

“legislative act of downzoning [the property] was undertaken without the express written consent

of the owners of the property, in contr avention of” § 11-829(F), but contended in its motion for

partial judgment on the pleadings, made pursuant to Rule 12(c), Ariz. R. Civ. P. , 16 A. R.S.,

Pt. 1, that the subsection’s consent provision is an unconstitutional delegation of legislative

authority. The trial court agr eed and, after finding that the consent provision had been the impetus

for adopting subsection (F), held the subsection unconstitutional and, citing Rule 54(b), Ar iz. R.

Civ. P., 16 A. R.S. , Pt. 2, entered partial judgment on the pleadings in the county’s favor. This

appeal followed.

                                 The Owner Consent Provision

¶4             A motion for judgment on the pleadings tests the sufficiency of the complaint and

should be granted if the complaint fails to state a claim for relief. Giles v. Hill Lewis Marce, 195

Ariz. 358, 988 P.2d 143 (App. 1999). The issue we consider here is whether § 11-829(F) is

constitutional, a question of law subject to our de novo review. See Holly v. State, 199 Ar iz. 358,

18 P.3d 152 (App. 2001). In deference to the legislature’s lawmaking authority, we begin with

a presumption that the statute is constitutional. Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d

854 (1949); Flood Control Dist. of Maricopa County v. Gaines, 202 Ariz. 248, 43 P.3d 196 (App.

2002). Indeed, if a statute can be constitutionally construed, we must adopt that construction.

Blake v. Schwartz, 202 Ar iz. 120, 42 P.3d 6 (App. 2002).

¶5             “The legislative authority of the State shall be vested in the Legislature . . . .”

Ariz. Const. art. IV, pt. 1, § 1(1).     Our courts, however, have condoned the legislature’s

                                                 3
delegation of certain of its powers under appropriate circumstances. Among the examples of

permissible delegation of powers by the legislature is the delegation of zoning powers to cities and

counties found in A. R.S. §§ 9-462 through 9-462. 08 and 11-801 through 11-876.                  See

Transamerica Title Ins. Co. v. City of Tucson, 157 Ar iz. 346, 757 P.2d 1055 (1988); Anderson

v. Pima County, 27 Ariz. App. 786, 558 P.2d 981 (1976); see also Village of Euclid v. Ambler

Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). The parties do not dispute that

zoning decisions are legislative in nature, see Mehlhorn v. Pima County, 194 Ariz. 140, 978 P.2d

117 (App. 1998), but disagree on whether those decisions, or the ability to frustrate them, may

be delegated to private individuals.

¶6             McLoughlin first contends § 11-829(F) is not a delegation of authority to property

owners but merely constitutes the legislature’s withdrawal of a portion of the counties’ zoning

power. The county points out, however, that each county has “a statutory duty to create a

comprehensive plan in coordination with municipalities and to zone in coordination with

municipalities in urban areas. ” See A.R. S. §§ 11-806 and 11-825(C)(4). A county’s planning

power is not merely ancillary to its ability to rezone; the two powers are interdependent. Only

with the authority to rezone pr operty can a county effectively make the extensive planning

determinations required of it, such as is contemplated by the Urban Planning–Growing Smarter

Act. See 1998 Ariz. Sess. Laws, ch. 204, §§ 1, 6-10; § 11-806. When it enacted § 11-829(F),

the legislature neither revested in itself the zoning authority over pr operty within counties’

jurisdictions nor withdrew the counties’ planning powers. Because it did not withdraw portions

of counties’ zoning authority by enacting the subsection, the legislature cannot effectively exercise

the counties’ zoning powers McLoughlin argues it ostensibly withdrew.

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¶7             In contrast to McLoughlin’s suggestion, the subsection affirmatively grants property

owners the ability to prevent counties from initiating downzoning of the owners’ property, see

§ 11-829(F) (county-initiated downzoning prohibited “without the express written consent of the

property owner” ), ther eby effectively delegating to those property owners the downzoning

authority that formerly reposed in counties. However, “[i]t is a well established theory that a

legislature may not delegate its authority to private persons over whom the legislature has no

supervision or control. ” Industrial Comm’n v. C & D Pipeline, Inc., 125 Ar iz. 64, 66, 607 P.2d

383, 385 (App. 1979); see Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,

122, 49 S. Ct. 50, 52, 73 L. Ed. 210, 214 (1928) (holding unconstitutional a zoning law that

purported to give landowners who were “ not bound by any official duty, but [we]re free to

withhold consent for selfish reasons or ar bitrarily and [could] subject [a neighboring landowner]

to their will or caprice” authority to prevent a par ticular use on a neighbor’s land); People ex rel.

Chicago Dryer Co. v. City of Chicago, 109 N.E.2d 201, 206 (Ill. 1952) (“The legislatur e cannot

abdicate its functions or subject citizens and their interests to any but lawful public agencies, and

a delegation of any sovereign power of gover nment to private citizens cannot be sustained nor

their assumption of it justified.” ); 8 Eugene McQuillan, Municipal Corporations § 25.35, at 111

(3d ed. 2000) (“ [Z]oning powers may not be delegated to private parties or pr operty owners. ”);

83 Am. Jur . 2d Zoning and Planning § 615 (1992); see also FM Properties Operating Co. v. City

of Austin, 22 S. W.3d 868, 877 (Tex. 2000) (state law allowing certain landowners to exempt their

properties from municipal water requirements unconstitutionally delegated legislative power to

landowners whose “pecuniar y interest in developing their land to realize profit may be inconsistent

with or repugnant to the public interest”).

                                                  5
¶8              McLoughlin contends, however , that, instead of delegating to owners the ability

to legislate, the subsection merely allows owners to waive a restriction established by the

legislature, that is, a general prohibition on county-initiated downzoning. As Pima County points

out, this argument highlights the distinction between two historical lines of authority in this area.

The first, the “ waiver” line, is typified by Thomas Cusack Co. v. City of Chicago, 242 U.S. 526,

37 S. Ct. 190, 61 L. Ed. 472 (1917), in which the Court upheld a city ordinance allowing a

majority of property owner s to waive a general prohibition against the erection of billboar ds in

residential neighborhoods.     In doing so, the Cour t noted the statute did “not [constitute] a

delegation of legislative power, but [wa]s . . . a familiar provision affecting the enforcement of

laws and ordinances. ” Id. at 531, 37 S. Ct. at 192, 61 L. Ed. at 476. Courts have generally

distinguished such “waiver ” r egulations from ones requiring an owner to obtain the consent of

neighboring property owner s before taking land-use planning action. In Eubank v. City of

Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156 (1912), for example, the Court struck down

a city ordinance allowing a majority of property owners to establish neighborhood setback

requirements.

¶9              In the second line of authority, the “ consent” line, the Illinois Supreme Court

addressed the distinction in Chicago Dryer Co. The Illinois legislature had delegated to municipal

corporations the authority to name streets. In response to Hagerty v. City of Chicago, 195 N.E.

652 (Ill. 1935) (naming of streets a legislative function), the legislature had amended the street-

naming statute to require a municipal corporation to change a str eet’s name it if received a petition




                                                  6
containing the signatures of sixty percent of the street’s pr operty owners. The court found the

amended statute’s effect was

               to give the property owners unbridled discretion of what the law
               shall be, and, once they have made that deter mination, the
               corporate authorities become a mere automatic register of their
               action and the will of the property owner s is given the effect of law.
               Stated simply, here the provision in reference to the consent of the
               abutting owners affects the enactment of the law rather than its
               execution. Thus construed, the decision of a group of property
               owners, in an admittedly legislative field, is made to prevail over
               that of the corporate author ities who represent the entire population
               . . . without regard for the necessity, beneficence or reasonableness
               of their action.

109 N.E.2d at 205 (citations omitted). As such, the court said, the law constituted “legislative

delegation in its most obnoxious form.” Id.

¶10            The county also relies on Brodner v. City of Elgin, 420 N.E.2d 1176 (Ill. App. Ct.

1981), which we find helpful to our discussion. There, the City of Elgin adopted a municipal

ordinance requiring applications for rezoning to be accompanied by the written consent of the

owner of the property to be rezoned. Over the protests of several property owners, the city filed

and adopted applications to rezone the owners’ parcels. The owners sought a judicial declaration

that the zoning amendments were invalid because the city had failed to obtain their consent. In

upholding the trial court’s dismissal of the complaint, the Illinois appellate court held that the

owner consent provision was an unconstitutional delegation of the city’s legislative zoning

authority because it “confer [red] upon the owner of the proper ty the absolute discretion to decide

that no rezoning shall ever occur . . . despite the fact that the City [might] be effecting a

comprehensive zoning plan in pursuit of the common good. ” Id. at 1178.



                                                 7
¶11            The central question under these cases in classifying whether a statute such as

§ 11-829(F) falls within the consent or waiver line of authority is whether the legislative body

permissibly delegated its legislative authority.     Because the owner consent provision in the

subsection affects a rezoning’s enactment as opposed to its execution, § 11-829(F) cannot be

classified a waiver statute. See Chicago Dryer Co. Similar to the ordinance at issue in Brodner

and the statute at issue in Chicago Dryer Co., § 11-829(F) is a consent statute that

unconstitutionally permits a proper ty owner to withhold consent from such a proposed r ezoning

based solely on his or her self-interest. In doing so, the property owner is unaccountable for

frustrating the public health, safety, or welfare because the county’s board of supervisors has no

recourse. See A.R. S. § 11-251(30); 11-802.

¶12            McLoughlin also argues, however, that the legislature intended § 11-829(F) to

create a type of vested right in zoning classifications. Under the vested rights doctrine, a property

owner who materially acts in reliance on an issued building or special use permit may continue

to act in conformance therewith, notwithstanding arbitrary governmental withdrawal or

cancellation of the permit. Town of Paradise Valley v. Gulf Leisure Corp. , 27 Ar iz. App. 600,

557 P.2d 532 (1976). Although McLoughlin suggests no material reliance here and points to no

occasion in which the legislature has by implication expanded this equitable doctrine, we need not

decide the issue because the legislative history accompanying § 11-829(F)’s adoption contains no

suggestion the subsection was intended to expand property owners’ vested rights to include zoning

classifications. As we have already discussed, the narrow br eadth of the legislation instead

demonstrates no legislative intent to withdraw counties’ downzoning authority; by implication, as

the trial court found, the legislature’s central purpose in enacting § 11-829(F) was adoption of the

                                                 8
owner consent provision. Moreover, we question whether expanding the vested rights doctrine

in this manner could be upheld as being substantially related to the public’s health, safety, and

welfare, see Euclid; Rotter, because the subsection’s restriction applies only to county-initiated

downzonings. Under such a system, any rights the legislature arguably might have intended to

vest by enacting § 11-829(F) would be abrogated upon either a municipality’s annexation of the

owner’s proper ty or the incorpor ation of a municipality including that property.

                                           Severability

¶13            McLoughlin also contends that, if the owner consent provision is unconstitutional,

it is nonetheless severable from § 11-829(F), permitting the subsection’s remainder to be enforced.

We will not declare an entire statute unconstitutional if, after the unconstitutional portions have

been excised, the r emaining portions may be interpreted consistently with the constitution, see

Randolph v. Groscost, 195 Ar iz. 423, 989 P.2d 751 (1999), and it clearly appears the legislature

would have enacted the remainder without the unconstitutional portion. State Compensation Fund

v. Symington, 174 Ar iz. 188, 848 P.2d 273 (1993).

¶14            As Pima County suggests, and as McLoughlin acknowledges, without the owner

consent provision, the remainder of the subsection would prohibit all county-initiated downzoning.

As we have already discussed, nothing in the legislative history suggests the legislature adopted

§ 11-829(F) intending to completely withdraw counties’ zoning powers or to enact a total

prohibition on county-initiated downzoning. Instead, we can only infer from the legislative history

that the legislature’s purpose in adopting the subsection was protecting property values through

the owner consent provision. Because the legislature did not intend the subsection to be applicable

without the owner consent provision, we need not determine whether the remainder of the

                                                9
subsection may be independently enforced. See Symington. We accordingly agree with the trial

court that the entire subsection is invalid.

¶15            Affirmed.



                                               ________________________________________
                                                J. WILLIAM BRAMMER, JR., Presiding Judge

CONCURRING:



_______________________________________
M. JAN FLÓREZ , Judge



_______________________________________
JOSEPH W. HOWARD, Judge




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