Houser v. Phoenix

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

HELEN HOUSER, et al., Plaintiffs/Appellants,

v.

CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 19-0173
FILED 4-9-2020

Appeal from the Superior Court in Maricopa County
No. CV2018-052464
The Honorable Bruce R. Cohen, Judge

REVERSED AND REMANDED

COUNSEL

Joshua Carden Law Firm, PC, Scottsdale
By Joshua W. Carden
Counsel for Plaintiffs/Appellants

Wilenchik & Bartness, PC, Phoenix
By Dennis I. Wilenchik, John D. Wilenchik, Christopher A. Meyers,
Ross P. Meyer
Counsel for Defendants/Appellees 64 Alpha and Mitchell Song
 HOUSER, et al. v. PHOENIX, et al.
Opinion of the Court

OPINION

Chief Judge Peter B. Swann delivered the opinion of the court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

S W A N N, Chief Judge:

¶1 A.R.S. § 9-462.06(K) entitles a party to judicial review of a
municipal Board of Adjustment’s decision if the party files a complaint for
special action in the superior court “within thirty days after the
[B]oard . . . has rendered its decision.” Here, as permitted by the relevant
Board’s rules, the appellants asked the Board to reconsider a decision made
at its April 2018 meeting. The Board effectively denied the request at its
next meeting in May 2018 when no Board member moved for a vote on the
matter. The appellants then filed a complaint in the superior court under
§ 9-462.06(K). The court dismissed the complaint because though it was
filed within thirty days of the May meeting, it was not filed within thirty
days of the April meeting. We reverse and remand. We hold that the
appellants had thirty days to file from the conclusion of the reconsideration
procedure.

FACTS AND PROCEDURAL HISTORY

¶2 A property owner applied to the City of Phoenix for a permit
and zoning variances to allow a medical marijuana dispensary on the
property. Numerous neighbors objected, including the appellants. At its
April 5, 2018 meeting, the Board of Adjustment overturned the Zoning
Administrator’s decision denying the application and approved the permit
and variances. On April 30, the appellants requested that the Board
reconsider its decision based on manifest error. The Board next met on May
3. It documented the request for reconsideration in the minutes of that
meeting but noted: “No motion to reconsider was made [by a Board
member]; previous BOA decision stands.” On May 31, the appellants filed
a special action in the superior court under A.R.S. § 9-462.06.

¶3 The property owner moved to dismiss the special action,
arguing that the court lacked subject matter jurisdiction under § 9-462.06(K)
because the appellants filed their complaint more than thirty days after the
Board’s April 5 decision. The appellants responded that the complaint was

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Opinion of the Court

timely because they filed it within thirty days of the Board’s effective denial
of their request for reconsideration on May 3.

¶4 The superior court granted the motion to dismiss, concluding
that the statutory review period began to run on April 5.

DISCUSSION

¶5 Section 9-462.06 does not address requests for
reconsideration. But the Phoenix Board, under its authority to “adopt all
rules and procedures necessary or convenient for the conduct of its
business,” A.R.S. § 9-462.06(C), has established the following procedures.
After the Board renders a decision on review of a Zoning Administrator’s
action, a person or entity may request that the Board reconsider. City of
Phoenix Board of Adjustment Rules of Procedure (“Board Rules”) § V. The
Board will be presented with and will “consider the request for
reconsideration” so long as it is made more than 48 hours before the next
regular meeting, typically held on the first Thursday of the month. Board
Rules §§ II, V. At the meeting, any Board member who previously voted
on the prevailing side may make a “motion to reconsider.” Board Rules
§ V. Upon such motion, the Board will vote whether to refuse or approve
reconsideration. Id. As set forth in the City zoning ordinances, “[a]n appeal
may be reheard only when there has been a manifest error affecting the
Board’s action.” City of Phoenix Zoning Ordinances (“Zoning
Ordinances”) § 303(C)(3); see also Board Rules § V.

¶6 Nothing in the foregoing requires a party to seek
reconsideration before petitioning for judicial review. Cf. Sw. Paint &
Varnish Co. v. Ariz. Dep’t of Envtl. Quality, 194 Ariz. 22, 24–25, ¶¶ 13–18
(1999) (holding that previous version of A.R.S. § 41-1062(B) and applicable
agency rules permitted but did not require agency reconsideration as
prerequisite for judicial review). And the statute is silent on the effect of
such a procedure. Here, the property owner contends that when an
aggrieved party may but is not required to ask for reconsideration, the
agency’s original decision is “as final as the judgments of a court.” See id.
at 25, ¶¶ 16–17. But all that means is that a party may elect to proceed
directly to judicial review. It does not mean that a party who seeks
reconsideration cannot wait for the Board to act on a motion for
reconsideration before seeking judicial review. This is not a novel concept.
For example, although a civil judgment is final and subject to appeal,
optional post-judgment motions may extend the appeal deadline. See id. at
¶ 17 (noting that “motions for new trial in the superior court are not a
prerequisite to an appeal to the court of appeals, and a motion for

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Opinion of the Court

reconsideration in the court of appeals is not a prerequisite to a petition for
review in [the supreme] court”); ARCAP 9(e) (providing that certain
permissive post-judgment motions made in the superior court will extend
the deadline to appeal to the court of appeals); see also ARCAP 22(a),
23(b)(2) (providing that permissive motion for reconsideration made in the
court of appeals will extend the deadline to petition for review to the
supreme court).

¶7 The property owner points out that under the civil rules,
motions for reconsideration do not extend the deadline to appeal to this
court. See Ariz. R. Civ. P. 7.1(e)(3). The civil rules, however, are of limited
utility here. See Arch Mineral Corp. v. Director, Office of Workers’ Comp.
Programs, 798 F.2d 215, 216, 218 (7th Cir. 1986) (holding that federal civil
and appellate rules are “suggestive” but “do not govern” the effect of
reconsideration proceedings on the time to petition for judicial review of
federal Benefits Review Board’s decision, and concluding that “closer
analogies are to be found in cases involving appellate review of decisions
of agencies other than the one before us”). Further, to the extent the rules
are instructive, we note that motions for new trial do extend the appeal
deadline, ARCAP 9(e), and such motions may claim relief on grounds that
would satisfy the “manifest error” standard that the Board must apply to
rehear a matter, compare Ariz. R. Civ. P. 59(a)(1)(H) (new trial may be
granted if judgment is unsupported by the evidence or contrary to the law)
with Austin Shea (Ariz.) 7th St. & Van Buren, L.L.C. v. City of Phoenix, 213 Ariz.
385, 391, ¶ 26 (holding that “manifest error” in Zoning Ordinances
§ 303(C)(3) includes “error[s] of law, fact, perception, consideration,
reasoning, judgment, [or] procedure”). We also note that motions for
reconsideration do extend the deadline to petition the supreme court to
review a decision of the court of appeals. See ARCAP 23(b)(2).

¶8 Other courts addressing this issue “have moved toward a
uniform rule that in the absence of a statute providing otherwise, the
finality of an agency’s decision is suspended by the filing of a
reconsideration motion or petition before the agency[,] . . . even when
agency rules are silent on the question.” Federal Court of Appeals Manual
§ 17:10 (6th ed. 2019) (recognizing federal-court trend); Boyce v. City of
Scottsdale, 157 Ariz. 265, 269 (App. 1988) (stating that “[m]any state courts”
use the same rule). The United States Supreme Court has held that unless
Congress expressly states otherwise:

The timely filing of a motion to reconsider renders the
underlying order nonfinal for purposes of judicial review. In
consequence, pendency of reconsideration renders the

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Opinion of the Court

underlying decision not yet final, and it is implicit in the
tolling rule that a party who has sought rehearing cannot seek
judicial review until the rehearing has concluded.

Stone v. I.N.S., 514 U.S. 386, 392 (1995) (citing Interstate Commerce Comm’n v.
Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987)).

¶9 We applied the majority rule in Boyce v. City of Scottsdale, 157
Ariz. at 269. In that case, a homeowner requested that the City of
Scottsdale’s Board of Adjustment reconsider its decision denying her
variance application. Id. at 265–66. The Board’s rules required it to vote on
the request. Id. at 266. Though the Board did not comply with the
requirement that all its members vote, it denied the request after some
members were polled, and the City advised the homeowner that she had
thirty days from the date of the reconsideration denial to seek judicial relief.
Id. The homeowner petitioned the superior court for special action within
thirty days of the Board’s reconsideration decision but more than thirty
days after its original decision. Id. We held that the superior court had
jurisdiction to consider the special action. See id. at 265, 270. Noting § 9-
462.06 and the failure of the Board’s rules to address the issue, we held that
a tolling rule promotes judicial economy. Id. at 268–69. We also explained
that judicial review was not unreasonably delayed in view of the Board’s
rule limiting the period to seek reconsideration to fourteen days. See id. at
266, 269.

¶10 The property owner contends that Boyce is distinguishable.
First, the property owner contends that here, unlike in Boyce, the Board
“took no action” at the May 3 meeting because its rules did not require it to
vote and it did not vote. To be sure, in our case the Board’s rule did not
require it to take a vote. But the rules did require the Board “to consider the
request for reconsideration” and to take a vote if the result of that
consideration was that a qualifying member moved for a vote. Board Rules
§ V (emphasis added). Under this scheme, it is simply incorrect to
characterize the failure of a member to move for a vote on the motion for
reconsideration as “inaction.” There can be no doubt that the Board
effectively denied the motion for reconsideration when the motion died
without a single member asking for a vote.1 The property owner next

1 The parties agree that a change in the Board’s composition between
April and May (at the last minute, according to the appellants) left the
Board without any members qualified to make a motion to reconsider. But
the minutes of the May meeting reflect that notwithstanding any

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Opinion of the Court

contends that here, unlike in Boyce, the City did not inform the appellants
that they had thirty days from the May 3 meeting to petition for judicial
review. But our holding in Boyce did not depend even in part on that fact.
See 157 Ariz. at 269. Boyce and the instant case are substantially similar.
Like Boyce, the case before us involves the Board’s denial of a request to
reconsider submitted within a reasonable time after the original decision.

¶11 We reject the property owner’s argument that Boyce was
implicitly overruled by Legacy Foundation Action Fund v. Citizens Clean
Elections Commission, 243 Ariz. 404 (2018). Legacy Foundation is inapposite.
In that case, the Citizens Clean Elections Commission assessed a penalty
against a policy organization and the organization requested
administrative review. Id. at 405, ¶ 3. Though the administrative law judge
concluded that the Commission lacked statutory authority to assess the
penalty, the Commission rejected the judge’s recommendation, affirmed
the penalty order, and issued a final administrative decision. Id. Eighteen
days later, the policy organization appealed to the superior court under
A.R.S. § 16-957(B), arguing that the Commission lacked jurisdiction. Id. at
¶ 4. The superior court dismissed the appeal because it was not filed within
the period prescribed by § 16-957(B): “fourteen days from the date of
issuance of the order assessing the penalty.” Id. at 405–06, ¶¶ 4, 7.
Affirming on review, the supreme court held that the deadline set forth in
§ 16-957(B)—as opposed to the more generous deadline established by the
Administrative Review Act—governed and the fact that the policy
organization challenged jurisdiction did not excuse compliance with the
deadline. Id. at 405–08, ¶¶ 7–19. The supreme court did not address Boyce
or even mention the effect of reconsideration procedures. See id. at ¶¶ 4–
19. The property owner points out that Boyce referred to § 9-462.06 as a
statute of limitation, see, e.g., 157 Ariz. at 269, whereas Legacy Foundation
clarified that statutes permitting direct appeals of agency decisions “are not
statutes of limitations but rather confer limited appellate jurisdiction
subject to timely action by the appealing party.” 243 Ariz. at 408, ¶ 17. For
our purposes, however, this is a distinction without a difference.

¶12 We acknowledge that § 9-462.06(K) and Zoning Ordinances
§ 303(C)(4) contemplate that unspecified “proceedings on the decision
sought to be reviewed” may continue while a special action is pending in
the superior court: “Filing the complaint does not stay proceedings on the
decision sought to be reviewed, but the court may, on application, grant a
stay . . . .” But the possibility that “proceedings”—which could mean legal

procedural issues created by the Board’s personnel changes, the request to
reconsider was raised at the meeting.

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proceedings or conduct undertaken pursuant to legal decisions—may
proceed at the same time as judicial review does not equate to a statement
of legislative intent that agency reconsideration and judicial review must be
concurrent, a rule that, as Boyce observed, would undermine judicial
economy.

¶13 In sum, we see no reason to depart from the majority rule.
Applying that rule, we conclude that under § 9-462.06, the appellants had
thirty days from the Board’s May 3 meeting to file their petition in the
superior court. Because they filed within that period, the superior court
had jurisdiction. The dismissal was error.

CONCLUSION

¶14 We reverse the superior court’s order dismissing the
appellants’ special action, and we remand for further proceedings. We
deny the parties’ competing requests for attorney’s fees as premature. See
A.R.S. § 12-348(A)(2) (providing that “a court shall award fees and other
expenses to any [private] party . . . that prevails by an adjudication on the
merits in . . . [a] court proceeding to review a state agency decision
pursuant to . . . any . . . statute authorizing judicial review of agency, city,
town or county decisions”); Scottsdale Healthcare, Inc. v. Ariz. Health Care
Cost Containment Sys., 206 Ariz. 1, 8–9, ¶ 29 (2003) (holding that award of
fees under § 12-348(A)(2) would be premature in view of remand to
superior court).

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

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