Arizona Court of Appeals Division One Holds That Adjacent Property Owner Alleged Sufficient Specific Harm Peculiar to Itself and Different From That of the General Public to Have Standing to Challenge a Zoning Decision.

After the City of Tempe approved zoning changes that would allow development of a proposed apartment complex adjacent to three existing apartment complexes owned by various entities (“Center Bay”), Center Bay filed a special action complaint against the City, the City’s Board of Adjustment, and the developer. The property owner (“UMHP”) moved to intervene, and moved to dismiss two of Center Bay’s claims on standing grounds. The trial court granted the motion, and the Court of Appeals affirmed. While the first action was proceeding, UMHP submitted another application to the City for essentially the same development to be completed by a new developer. After the City approved the second application, Center Bay filed another special action. The City and other defendants this time asserted that Center Bay lacked standing to assert any of the claims, and asserted that the prior decision was “law of the case.” The trial court granted a motion to dismiss on the ground that Center Bay’s claimed damages were not specific and could be categorized as generalized economic or aesthetic effects for which standing was not appropriate.
On appeal, the Court of Appeals found the law of the case doctrine inapplicable because the Court’s prior decision did not purport to resolve the standing issue with respect to the new claims. With respect to standing, the Court explained that in Arizona, a person “aggrieved” by a zoning decision of a legislative body or board may appeal that decision by special action to the superior court, but to have standing to bring such an action, a plaintiff must allege “particularized harm” resulting from the decision – an “injury in fact, economic or otherwise.” The damage alleged must be peculiar to the plaintiff or at least more substantial than that suffered by the community at large. The Court held that Center Bay alleged specific harm peculiar to itself and different from that of the general public given that the proposed development project across the street from the presently existing apartment complex came close to tripling the existing density, doubling the existing mass, and dropping previously required landscape specifications. Particularized economic harm, the Court emphasized, may suffice for standing.
The decision was authored by Judge Barker; Judges Snow and Kessler concurred.