McGeary v. City of Sedona

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VINCENT MCGEARY, Plaintiff/Appellee,

v.

CITY OF SEDONA, an Arizona municipal corporation, and the COUNCIL
OF THE CITY OF SEDONA, a legislative body, Defendants/Appellants.

No. 1 CA-CV 22-0076
FILED 10-06-2022

Appeal from the Superior Court in Coconino County
No. S0300CV201900120
The Honorable Cathleen Brown Nichols, Judge

REVERSED

COUNSEL

Vincent McGeary, Sedona
Plaintiff/Appellee

Sedona City Attorney’s Office, Sedona
By William A. Kunisch, Kurt W. Christianson
Counsel for Defendants/Appellants
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 The City of Sedona and the Council of the City of Sedona
appeal from the superior court’s orders vacating the grant of a conditional
use permit and entering judgment for Vincent McGeary. We conclude that
the superior court erred and reverse.

FACTS AND PROCEDURAL BACKGROUND

¶2 In January 2017, a water company applied for a conditional
use permit with the City of Sedona (“City”), seeking approval to construct
a water tank and pumping plant on residential land. The water company
held public meetings with residents to discuss the project.

¶3 In August 2018, the City’s Planning and Zoning Commission
held its first public hearing on the permit application. In preparation for the
hearing, department staff submitted a report describing the findings
required by the Sedona Land Development Code (“Development Code”).1
The report explained that under Development Code § 402.06, the
Commission would grant a permit only if 1) the project agreed with the
Development Code’s objectives and the zoning district purpose in which it
was proposed, 2) granting the permit would “not be materially detrimental
to the public health, safety or welfare,” 3) the proposed use was “reasonably
compatible with the types of use permitted in the surrounding area,” 4) the
proposed use would comply with the Development Code, and 5) any
proposed expansion or change would be “no more deleterious” than the
current use.

¶4 The staff report detailed its findings on how the water
company’s proposal met each requirement. In the report, the staff explained

1 Because the water company applied for the permit in 2017, we apply
the Development Code effective before Sedona’s 2018 Development Code
update.

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that the proposal met the first requirement because the water tank was to
be built in a residential area and was “located to support the overall
purpose for promoting and preserving residential development within the
community.” Staff members noted that water tanks and public utilities are
listed as conditional uses in all Sedona residential districts.

¶5 Next, the report noted that under the Development Code’s
second requirement, the Commission must consider any potential property
damage, nuisance, hazard to persons or property, and impact on the
surrounding area from traffic. The report explained that the tank was
designed to be mostly subterranean, fully enclosed, and soundproof to fit
the neighborhood’s residential character. The structure also would be “dark
sky compliant.” The water company was aware of potential flooding issues
and designed the project to mitigate those risks. The report anticipated no
potential nuisance, hazard, or unusual traffic after construction.

¶6 Under the third requirement, the report explained that the
water company considered the surrounding residential properties and
included a chart showing how the proposed project differed from standard
residential development. The report concluded that “impact to the
neighboring properties [would be] minimized.”

¶7 Under the fourth requirement, the report noted that by
complying with all the recommended conditions of approval, the project
would comply with all applicable provisions of the Development Code.
Finally, the fifth requirement did not apply because the project was to be
constructed on a vacant site. Thus, there would be no expansion or change
from previous use.

¶8 The water company presented its case for approval at the
August hearing. The Commission then discussed the project with the water
company representatives before welcoming comments from the public.
After further discussion, the Commission expressed lingering concerns and
voted to continue the hearing until October with guidance for the water
company on redesigning the project.

¶9 The October hearing began with a notice that all materials
from the August meeting were “part of the record, including staff’s analysis
. . . with regard to this proposal’s compliance with the criteria and findings
for a [conditional use permit].” The water company presented several
design changes and answered questions from the Commission. The
Commission then allowed the public to comment before putting the matter
to a vote. A commissioner moved for the permit’s approval “based on

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compliance with all ordinance requirements and satisfaction of the
Conditional Use Permit findings and applicable Land Development Code
requirements and conditions as outlined in the staff report.” The
Commission voted to grant the permit.

¶10 McGeary, a Sedona resident, appealed the Commission’s
decision to the City Council, and the Council held a special meeting. The
Council addressed McGeary’s concerns, one of which was that the
Commission did not properly make the required findings under
Development Code § 402.06. Staff noted that although Development Code
§ 402.06 “enumerates the findings to be made, . . . it does not prescribe the
format in which those findings are to be expressed.” Staff explained that the
Commission adopted the findings provided in the staff report when it
voted to approve the permit. The Council then affirmed the Commission’s
decision to grant the permit “based on compliance with all ordinance[]
requirements and satisfaction of the Conditional Use Permit findings and
applicable Land Development Code requirements and the conditions as
amended by the Planning and Zoning Commission.”

¶11 McGeary filed a special action with the superior court,
alleging, inter alia, that the Commission and Council failed to make
independent findings required by the Development Code and lacked the
authority to adopt the staff report’s findings. The court determined from
the record that it could not resolve whether the decision to grant the permit
was arbitrary or capricious because the Commission and Council “did not
specifically state” the findings they considered. Thus, the court could not
“decide the merits of the underlying dispute” because the lack of specific
findings “prevented meaningful judicial review,” so it vacated the grant of
the permit and remanded the case to the Commission and Council for
further explanation.

¶12 McGeary asked the court to enter final judgment, arguing that
the court lacked the authority to remand the case to a municipality. After
briefing on the issue, the court vacated the remand portion of its order and
entered final judgment for McGeary.

¶13 The City of Sedona and the Council appealed, and we have
jurisdiction under A.R.S. §§ 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶14 On appeal from a special action started in the superior court,
we first determine whether the superior court accepted jurisdiction and
decided the claim’s merits. Cranmer v. State, 204 Ariz. 299, 301, ¶ 7 (2003). If

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it did, we then review its decision for an abuse of discretion and its legal
conclusions de novo. Id.

¶15 Despite the court’s determination that it could not “decide the
merits of the underlying dispute,” it ultimately entered judgment for the
plaintiff. We, therefore, conclude that the superior court accepted
jurisdiction and decided the merits of the claim, and we will review its
decision for an abuse of discretion. See Cranmer, 204 Ariz. at 301, ¶ 7.

A. The Court Abused Its Discretion by Failing to Find Credible
Evidence Supported the Decision to Grant the Permit.

¶16 Neither the superior court nor this Court may substitute its
opinion of the facts for that of the Commission. If there is credible evidence
to support the Commission’s decision, it must be affirmed. Pingitore v. Town
of Cave Creek, 194 Ariz. 261, 264, ¶ 18 (App. 1998).

¶17 Appellants argue that the superior court erred because the
Commission’s decision was supported by substantial evidence. The
Commission reviewed presentations and written reports, held public
hearings, and then adopted the findings outlined in the staff report.
McGeary counters that the Commission and Council failed to make their
own findings as required by the Development Code. He also argues that
the Commission and Council were prohibited from adopting findings from
the staff report, and the findings in the staff report were arbitrary and
capricious.

¶18 Section 402.06 of the Development Code requires the
Commission to make five specific findings before granting a conditional use
permit. The staff report prepared in advance of the public meetings
explained each finding in detail. After the October meeting, the
Commission voted to grant the permit “based on . . . satisfaction of the
Conditional Use Permit findings . . . as outlined in the staff report.” The
Commission adopted the required findings from the staff report before and
in support of its vote to grant the permit.

¶19 McGeary argues that the Development Code prohibits the
Commission from adopting findings because it requires the Commission,
not department staff, to make the findings. He also contends that, by
purporting to adopt staff findings, the Commission essentially delegated its
decision-making function to the department. But McGeary identifies no
provision of the Development Code that expressly prohibits the
Commission’s method of making the required findings. That department
staff drafted the report does not strip the Commission of its independent

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choice to adopt the findings from the report. Had the Commission
disagreed with the staff recommendation, it had the discretion to reject the
staff findings in the report. But by adopting the findings, the Commission
made the findings as required by the Development Code.

¶20 McGeary argues it is arbitrary and capricious to adopt
pre-hearing findings as the basis for a decision, contending that Appellants’
reliance on the staff report “concedes that the Commission failed to make
[the findings] after the hearing and before granting the [permit].” We
disagree.

¶21 The Commission made the required findings when it voted to
adopt those outlined in the report, not when it was drafted. The
Commission also considered the comments from the August and October
hearings before adopting the findings. That the Commission felt no need to
deviate from the staff report does not mean that it did not consider the
content of the hearings before reaching its conclusions. And to the extent
McGeary implies the Commission held the hearings as a formality, the
record instead reflects robust discussion at the hearings. The Commission’s
decision to continue the August hearing for the water company to modify
its plans further suggests serious independent consideration. The
Commission made the findings required by the Development Code.

¶22 McGeary also argues that the findings were substantively
arbitrary and capricious. He first contends the Commission failed to make,
or erroneously made, the first required finding under Development Code
§ 402.06. The Commission had to find “[t]hat the proposed location of the
conditional use is in accordance with the objectives of [the Development
Code] and the purpose of the zoning district in which the site is located.”
Development Code § 402.06(A). Because the proposed location was in a
residential area, the purpose of the zoning district was to promote and
preserve low-density single-family residential development. Development
Code § 605.01. The Commission found that “[t]he proposed public utility
and public service substation, water tank, and pumping plant is located to
support the overall purpose for promoting and preserving residential
development within the community.” The Commission made the first
required finding.

¶23 McGeary argues the finding was erroneous because there is
no evidence that the project will promote or preserve residential
development in the district. But the Commission noted that this type of
project is a conditional use in all of Sedona’s residential districts, which
evidences its necessity in residential development. And we will not

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substitute our opinion on that fact for the Commission’s. See Pingitore, 194
Ariz. at 264, ¶ 18.

¶24 McGeary next argues that it was arbitrary and capricious for
the Commission to ignore the project’s construction-related traffic. Under
Development Code § 402.06(B), the Commission had to find that granting
the permit would not be detrimental to public health, safety, or welfare.
One of the “factors to be considered” when making this finding was “[a]ny
impact on surrounding area resulting from unusual volume or character of
traffic.” Development Code § 402.06(B)(3) (emphasis added). McGeary
correctly notes that the staff report findings contain no discussion about
construction-related traffic. But the October hearing shows the Commission
thoroughly discussed construction-related traffic with the water company
and the public. There is, therefore, substantial record evidence that the
Commission “considered” this factor before making the second required
finding.

¶25 McGeary also argues the Commission failed to analyze
whether the characteristics of the proposed use were reasonably compatible
with the types of use permitted in the surrounding area. See Development
Code § 402.06(C). But substantial evidence supports that finding because,
as mentioned, the Commission found that public utilities and water tanks
are necessities in residential areas.

¶26 McGeary also contends the Commission made no finding
under § 402.06(D), which requires the Commission to find that the
proposed use would comply with the applicable provisions of the
Development Code. The report provided, and the Commission found, that
“[b]y complying with all recommended Conditions of Approval, this
project will be in compliance with the applicable provisions of the Land
Development Code.” McGeary complains that the report mentioned no
other provisions of the Development Code or other city ordinances. The
Development Code does not require the Commission to list every code
provision with which the project complies. And McGeary identifies no
specific requirement with which the project would not comply such that the
Commission’s finding would be clearly erroneous.

¶27 Finally, McGeary argues that the Council failed to make the
same § 402.06 findings when it affirmed the Commission’s decision. The
Council announced the decision “based on . . . satisfaction of the
Conditional Use Permit findings . . . as amended by the Planning and
Zoning Commission.” Thus, the Council adopted the Commission’s
findings when deciding to affirm the Commission’s decision.

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¶28 Because there is substantial record evidence to support the
Appellants’ decision to grant the permit, the superior court had to affirm.
See Pingitore, 194 Ariz. at 264, ¶ 18. The court abused its discretion by
vacating the Appellants’ decision.

B. The Court Abused Its Discretion by Entering Judgment for
McGeary Despite Concluding that He Did Not Meet His Burden.

¶29 We also reverse for a second reason. The superior court was
tasked with determining whether the Commission or Council acted
arbitrarily or capriciously or abused their discretion when they granted the
permit. See Pingitore, 194 Ariz. at 264, ¶ 18. The superior court had to affirm
if there was credible evidence to support the Commission and Council’s
decisions. Id. The superior court recognized that the decision to grant the
permit was presumptively valid and that “one who attacks it . . . carries the
burden of showing the decision to be against the weight of the evidence,
unreasonable, erroneous, or illegal as a matter of law.” See Ivancovich v. City
of Tucson Bd. of Adjustment, 22 Ariz. App. 530, 535 (1974).

¶30 The court found that it could not “determine from the record
. . . if the Commission’s decision and the Council’s decision to grant the
[permit] was or was not arbitrary, capricious, unlawful, or not supported
by substantial evidence.” Yet the court entered judgment for McGeary. This
was legal error. Based on the superior court’s order, McGeary did not meet
his burden because the court did not find that the decision to grant the
permit was arbitrary, capricious, or an abuse of discretion. The court was
therefore required to affirm, and it abused its discretion by vacating the
grant of the permit.

CONCLUSION

¶31 We reverse the superior court’s orders vacating the
Appellants’ grant of the conditional use permit.

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