Austin Shea (Ariz.) 7th Street & Van Buren, L.L.C. v. City of Phoenix – 8/3/2006

August 7, 2006

Arizona Court of Appeals Division One Holds That The Superior Court Improperly Concluded That The City Of Phoenix Board Of Adjustment Abused Its Discretion By Rehearing And Reversing Its Decision That Plaintiff’s “Media Sculpture” Proposal Did Not Violate The Zoning Ordinance.

Austin Shea (Arizona) 7th Street and Van Buren, L.L.C. (“Shea”), “proposed building a two-story 900 square foot glass structure that would house a television broadcast station and four video screens, each 16’ x 12’, set back at least 6’1” from the structure’s inside windows.” In Shea’s area, however, “Section 705.2(A)(7)(d) (2005) of the Phoenix Zoning Ordinance prohibits ‘outdoor advertising’ structures . . . .” After Shea revised the proposal several times, the City of Phoenix Board of Adjustment eventually approved the proposal. Phoenix asked the Board to reconsider on the basis of “manifest error” in its conclusion. City of Phoenix Zoning Ordinance § 303(C)(3). The Board voted to rehear the appeal and ultimately disapproved of Shea’s proposal. The Superior Court reversed the Board’s decision because it concluded that the Board could rehear its earlier decision only on the basis of manifest error and no error had occurred. Phoenix appealed.

The Arizona Court of Appeals reversed and remanded the case back to the Superior Court. The Court of Appeals first defined manifest error as an error “evident and clear,” and noted that “[a]n error of law, fact, perception, consideration, reasoning, judgment, as well as procedure, may, depending on the facts and circumstances, constitute a manifest error.” The Court then noted that the Superior Court erred in reviewing for manifest error by looking only to the record of the second hearing (at which the Board decided to rehear Shea’s appeal); it should have looked at the record of both hearings. Had it done so, it would have seen that the Board’s initial conclusion “failed to consider all of the relevant provisions of § 705 of the Zoning Ordinance and other ‘logical factual scenarios’ . . . .” Therefore, credible evidence supported the Board’s decision to rehear the appeal on the basis of manifest error in its conclusion to approve Shea’s proposal. The Board did not need to describe the manifest error explicitly.

Judge Norris authored the unanimous opinion.