By Jones Osborn II

A recent decision by the Arizona Supreme Court has set down some limits on the zoning powers of town and city governments that could have far-reaching effects. The case is known as the Jachimek case.

In the Jachimek case, the Supreme Court voided a City of Phoenix zoning ordinance that required use permits for liquor stores, bars, pawn shops, blood banks, boarding houses, and certain other uses, but only if located in a certain area near downtown Phoenix descriptively known as the "Inebriate District." If located elsewhere, no use permit was required.

Basis for the Decision. First, the reason for the Court's decision.

The Court began its discussion by stating that Arizona cities and towns have no inherent zoning authority. Any power they have to zone property must be specifically granted to them by the State of Arizona, and may be exercised only in the manner dictated by the State in its enabling legislation. The Court then observed that although Arizona's cities and towns have been given certain specified zoning powers, these powers are limited by a requirement that all zoning regulations must be uniform throughout any given zone.

The Inebriate District flunked the "uniformity" test because liquor stores, pawn shops, and the other specified uses could be conducted on property zoned C-2 without a use permit everywhere in the city except in the Inebriate District. In the Inebriate District, a use permit was required, even though the underlying C-2 zoning was the same.

The Court, therefore, held that because a use permit was required only in the Inebriate District, the regulations were not uniform as to all property zoned C-2 and were void.

The Consequences. The Court decided only that the City of Phoenix "Inebriate District" zoning regulation was void. But the City of Phoenix (and other cities as well) have other "overlay" districts that treat property with the same basic zoning differently. For example, the City of Phoenix has Residential In-Fill, High-Rise, High-Rise Incentive, Mid-Rise, Historic Preservation, and Hillside Districts, all of which place different regulations on property within the same underlying zoning classification. This raises the question of whether these districts, like the Inebriate District, are vulnerable to legal challenge.

The answer is that some probably are and some probably aren't.

Arizona statutes do specifically grant towns and cities the power to set up certain special zoning districts, including:

(a) Floodplain districts.

(b) Historical preservation districts.

(c) Districts with adverse topography or soil or water problems, which presumably includes hillsides.

(d) Age specific districts (designed for retirement communities.)

Since regulations dealing with these matters are specifically authorized by state law, they are probably valid, even though they create a problem with "uniformity." However, other types of overlay districts, such as high-rise and residential in-fill, are not specifically authorized and could be in jeopardy.

Conclusion. The ultimate consequences of the Jachimek decision are as yet unknown. They may be minimal, or they may be far-reaching. The various overlay zoning districts are presumed valid until someone brings a lawsuit to challenge them, and this may or may not occur with respect to any given district. If it does occur, no one can be certain how the courts will rule. It is also possible that the cities may attempt to head off any future challenges by lobbying for a change in the State statutes to obtain specific authorization for such overlay districts. In any event, those owning, purchasing, or lending on properties subject to a zoning overlay district should be aware of the Jachimek decision and its potential for leading to the invalidation of some or all of these districts.

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Jachimek et al. v. Superior Court, CV-91-0373-AP (Opinion Filed November 7, 1991).