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Houser v. City of Phoenix - 4/9/2020

Arizona Court of Appeals Division One holds that if a Board of Adjustment authorizes requests for reconsideration and a party seeks reconsideration, the thirty-day clock under A.R.S. § 9-462.06(K) to file a special action challenging a Board of Adjustment’s decisions runs from when the Board acts on the request for reconsideration.

A property owner sought a permit and zoning variances to permit a business on its property.  At an April 4, 2018 meeting, a municipal Board of Adjustment approved the permits.  On April 30, 2018, interested parties requested that the Board reconsider.  On May 3, 2018, the Board met and noted the request, but no motion was made by a Board member to vote on it and the minutes reflected that the previous decision stood.  On May 31, 2018, the interested parties filed a special action challenging the permit approval under A.R.S. § 9-462.06.  The property owner moved to dismiss for lack of subject matter jurisdiction because the special action was filed more than 30 days after the Board’s original decision.  The superior court granted the motion.  The interested parties appealed.

The Court of Appeals reversed and remanded.  Under A.R.S. § 9-462.06(K), a party has thirty days from the date of a municipal Board of Adjustment’s decision to file a special action seeking judicial review.  Nothing in the relevant statute addresses requests for reconsideration directed at the Board, but the Board is authorized to adopt all rules and procedures necessary.  This Board had authorized such requests.  The Court of Appeals noted that the majority rule in United States courts is that a timely motion for reconsideration renders an underlying agency order non-final for purposes of judicial review.  Indeed, in Boyce v. City of Scottsdale, 157 Ariz. 265, 269 (App. 1988), the Court of Appeals adopted that rule for the purpose of special actions under A.R.S. § 9-462.06.  While in Boyce the Board’s rules required it to vote on all requests for reconsideration, and the Board here was not required to vote and did not vote, the Court of Appeals determined the situations were substantially similar and there was no reason to depart from the majority rule.  If a party may request a Board of Adjustment reconsider its decision, and the party makes such a timely request, the thirty-day clock to file a judicial action begins running from when the Board acts on the request for reconsideration.

Chief Judge Swann delivered the unanimous opinion of the court.  Presiding Judge Brown and Judge Williams joined.

Posted by: Emma J. Cone-Roddy

Posted On: 4/15/2020