Koo v. Scottsdale

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HOON KOO, Plaintiff/Appellant,

v.

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

No. 1 CA-CV 23-0316
FILED 2-29-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-011214
The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

Timothy A. La Sota, PLC, Phoenix
By Timothy A. La Sota
Counsel for Plaintiff/Appellant

Scottsdale City Attorney’s Office, Scottsdale
By Eric C. Anderson
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge David D. Weinzweig joined.

P E R K I N S, Judge:

¶1 Hoon Koo appeals from the superior court’s order dismissing
his complaint for special action relief. Koo’s complaint challenged the City
of Scottsdale Board of Adjustment’s (“Board”) decision to deny his request
for two variances to his property. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Koo owns two adjacent parcels totaling 15,700 square feet in
Scottsdale zoned R1-35 on which he intends to build a house. A property
owner may build a house on property zoned R1-35 if that property is at
least 35,000 square feet. Scottsdale Rev. Code, App’x B, § 4.200.

¶3 The parties do not dispute the relevant history of Koo’s
property, which began as a portion of a two-acre parcel. The Arizona
Department of Transportation (“ADOT”) condemned the parcel for
freeway installation. After construction, ADOT sold a 30,000 square foot
remnant of the original parcel to a private entity. Scottsdale recognizes the
undersized remnant was a “legal establishment of [a] non-conforming
parcel.” But without following Scottsdale’s procedures for the subdivision
of property, the private entity then subdivided the land into five parcels
through fee title deeds recorded with Maricopa County.

¶4 A prior owner of Koo’s property sought a variance to make
the site developable in 2012, which the Board denied. Koo then purchased
the property in 2016 for $20,000.

¶5 Koo applied to the Scottsdale City Council in 2021 to rezone
the property to R1-10 so he could build a house. But the City Council denied
his application. Koo, too, sought a variance from the property’s lot area
requirement. If the Board granted the area variance, Koo also sought a
variance from Scottsdale’s rear setback requirement.

¶6 The Board heard testimony from Koo and Scottsdale and
considered comments from members of the neighborhood before denying

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the variance request by a vote of five to one. Koo appealed for special action
relief to the superior court. The superior court found the Board’s decision
was not arbitrary and capricious or an abuse of discretion and affirmed the
Board’s decision to deny Koo’s variance requests. Koo timely appealed to
this Court, and we have jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 We must determine whether the superior court erred when it
sustained the Board’s decision. See Ivancovich v. City of Tucson Bd. of
Adjustment, 22 Ariz. App. 530, 535 (1974). “In a special action to review a
municipal board of adjustment decision, the [superior] court’s primary
purpose is to determine whether the board’s decision was arbitrary and
capricious or an abuse of discretion.” Murphy v. Town of Chino Valley, 163
Ariz. 571, 574 (App. 1989). We are “bound by the same standard of review
as the superior court,” id., and we presume the validity of the Board’s
decision unless it is “contrary to law, is not supported by substantial
evidence, is arbitrary and capricious or is an abuse of discretion,” A.R.S. §
12-910(F); Pawn 1st, LLC v. City of Phoenix, 242 Ariz. 547, 551, ¶ 9 (2017).

¶8 Under its Code, Scottsdale may grant a request for a variance
from zoning restrictions only if all of the following criteria are met: (1)
special circumstances, such as size, “deprive [the subject] property of
privileges enjoyed by other property of the same classification in the same
zoning district”; (2) the variance is “necessary for the preservation of
privileges and rights enjoyed by other property of the same classification in
the same zoning district”; (3) the special circumstances were not “self-
imposed or created by the property owner”; and (4) the variance will not be
“materially detrimental to . . . the neighborhood or to the public welfare.”
Scottsdale Rev. Code, App’x B, § 1.804. The Board did not rule explicitly on
each criterion, but multiple Board members expressed their belief that any
special circumstances applicable to the property were self-imposed.

¶9 At the outset, we agree with the Board and the superior court
that Koo’s property resulted from an unrecognized, illegal subdivision by
a prior owner of the property. See Scottsdale Rev. Code, § 48 (1972)
(subdivision of real property in Scottsdale must be submitted to the city for
approval). And throughout the proceedings, Scottsdale noted that it would
have allowed a house to be built on the 30,000 square foot remnant parcel
as a legal non-conforming use. Only after the prior owner illegally
subdivided the remnant parcel did Scottsdale preclude construction of a
house on the property.

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¶10 Koo nonetheless argues the size of his property is a special
circumstance that was not “self-imposed or created by the property owner.”
Instead, he insists the undersized nature of the parcel is the result of both
the initial eminent domain action, which reduced the parcel to 30,000
square feet—5,000 square feet shy of the R1-35 zoning requirements—and
the subsequent illegal subdivision by the prior owner. Koo also asserts the
zoning ordinance’s prohibition against self-imposition refers to “nobody
but [the current property owner]” rather than a prior owner.

¶11 “[L]ocal ordinances require [the Board] to consider special
circumstances applicable to the property, not the property owner.” Pawn
1st, 242 Ariz. at 555, ¶ 31. Circumstances are not self-imposed when they
“arise from applying the zoning ordinance to circumstances or conditions
beyond the owners’ control.” Id. at 554, ¶ 29. “An owner’s selection of a
property, even with knowledge that a variance is required for an intended
use allowed on other similarly zoned properties, does not itself constitute a
self-imposed special circumstance precluding a variance.” Id. at 555, ¶ 32
(cleaned up). And special circumstances resulting from eminent domain
actions are not self-imposed. Id. at 555, ¶ 31. But “a purchaser of property
acquires no greater right to a variance than his predecessor.” Id. at 554–55,
¶¶ 29, 32.

¶12 Any special circumstances applicable to Koo’s property are
not the result of eminent domain. Although the remnant parcel resulting
from ADOT’s eminent domain action did not meet the minimum lot area
requirement, the Board received and credited testimony from Scottsdale
that the remnant parcel would have been treated as a legal non-conforming
use, absent the illegal subdivision of the parcel. It was not an abuse of
discretion for the board to credit that testimony, and it is not our role to
reweigh the evidence. See Murphy, 163 Ariz. at 576 (“[I]n reviewing a
board’s decision it is not the prerogative of this court . . . to weigh the
evidence.”). So ADOT’s eminent domain action is irrelevant to whether the
special circumstances were self-imposed.

¶13 Koo’s property does not meet Scottsdale’s zoning
requirements because the prior owner illegally subdivided the remnant
parcel, which was an action within the exclusive control of the property
owner. See Pawn 1st, 242 Ariz. at 555, ¶ 32. And Koo’s argument that the
subdivision ordinance refers to only the current property owner is
unavailing because Koo “acquires no greater right to a variance” than the
prior owner. Id. Because the prior owner self-imposed the special
circumstances on the property, and would therefore not have a right to a
variance, Koo does not have a right to a variance. Scottsdale Rev. Code,

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App’x B, § 1.804; see Pawn 1st, at 555, ¶¶ 31–32; 83 Am. Jur. 2d Zoning and
Planning § 762 (2024) (It is not an abuse of discretion to deny a zoning
variance when “the board has considered the fact that the practical
difficulties and hardship complained of were not inherent in the property
but resulted from subdivision of the property by the owners.”).

¶14 The Board correctly determined that Koo’s property does not
qualify for a variance under Scottsdale’s zoning ordinance. Scottsdale Rev.
Code, App’x B, § 1.804.

¶15 Because the superior court did not err by affirming the
Board’s decision based on the prohibition against self-imposition, we do
not address whether the variance was necessary for the preservation of
privileges or if the variance would have been detrimental to the
neighborhood. The Board’s decision to deny Koo’s variance requests was
not contrary to law, arbitrary and capricious, or an abuse of discretion.
A.R.S. § 12-910(F); Pawn 1st, 242 Ariz. at 551, ¶ 9.

CONCLUSION

¶16 We affirm.

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

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