ZIL19-02 Appeal Application

City of Glendale — Regular Meeting (2020-01-09)

Extracted text (via ocr_local) 33329 characters

P
a PLANNING

Development Services Department

MASTER APPLICATION
Please check ALL of the applications that you are applying for:
Administrative Relief Glendale Centerline Overlay District
Administrative Review Preliminary Subdivision Plat/Development Master Plan
Annexation Rezoning
Conditional Use Permit Variance
Design Review Zoning Interpretation

Final Subdivision Plat Zoning Ordinance Text Amendment
General Plan Amendment Vv Appeal of Planning Administrator Decision/Interpretation

Project Name: (nlonlES

Property Address: __ 7/50 AL 5S DR. 3 ‘C1SQ Al. 42? ths Gross Acres: _ UV KM Gu

Major Cross Streets: > 9 7” AVE. [Mvy/RILE

Council District; OCOTILLO To Sree — CATL ial CoRT-PAD Zon
Existing Land Use: 150A 4?” (PRI OFE/ cE 2150 AL 5K” (Be Si ont)

PROPERTY OWNER

Name: _Co/T_ ¥ Za LEIZIE (ZuRVER Phone: (G23) 695 ~F3eax:

Address: "2 (AG WA ZUM DIVE

City: 6G Leal DAC State: 7 = Zip Code: KS POT
Email: /SEA2 SHoeE@/ Of Cnr

TO REPRESENT ME IN THIS APPLICATION, | GIVE AUTHORIZATION TO: TEE FP y
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Representative Name: NEFF [= Kopp 4aAA Business Name: KeP2ELMAA, "ne

Address: (2.0, Box 926 ' anil
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(Print or type name of owner of record) (Signature of owner of record) (Date)
Revised 8-1-18

City of Glendale e 5850 West Glendale Avenue, Glendale Arizona 85301-2599 e 623-930-2800

"aC" PLANNING
é Development Services Department

MASTER APPLICATION
Please check ALL of the applications that you are applying for:
Xx Administrative Relief Glendale Centerline Overlay District
x Administrative Review Preliminary Subdivision Plat/Development Master Plan
Annexation Rezoning
Conditional Use Permit Variance
Design Review x Zoning Interpretation
Final Subdivision Plat Zoning Ordinance Text Amendment

General Plan Amendment
ATTACH AN ADDITIONAL SHEET DETAILING THE REQUEST OF EACH APPLICATION.
Individual application checklists are available at www.glendaleaz.com/planning
Project Name: (none)
Property Address: _7150 N. 58th Drive Gross Acres: _unknown
Major Cross Streets: 59th Avenue/Myrtle
Council District: Ocotillo District - Catlin Court PAD Zone

Existing Land Use: residential only

PROPERTY OWNER

Name: _Coit & Valerie Burner Phone: 623-695-3342 Fax:
Address:_7146 N. 58th Drive

City: _Glendale State: AZ Zip Code: 85301

Email: _bearsmore@aol.com
TO REPRESENT ME IN THIS APPLICATION, | GIVE AUTHORIZATION TO:

Representative Name: Jeffrey Koppelmaa Business Name: Jeffrey S. Koppelmaa, Legal Counsel
Address: PO BOX 926
City: _Jerome State: _AZ Zip Code:_ 86331
Phone: (415)717-7294 Fax:
Email:_counse!|@jsk.leqgal ia

Coit Burner LY 2; J g ZL: ZL19

(Print or type name of owner of record) (Signature of owner of record) (Date)
Revised 8-13-15

Dies AE Candala @ SO6N Want Candela Avinann Clandaln Actenan Of9N1 DEAN = £99 29N MONA

Pre, PLANNING
END ALE Development Services Department

MASTER APPLICATION

Please check ALL of the applications that you are applying for:

x Administrative Relief Glendale Centerline Overlay District
x Administrative Review Preliminary Subdivision Plat/Development Master Plan
Annexation Rezoning
Conditional Use Permit Variance
Design Review x Zoning Interpretation
Final Subdivision Plat Zoning Ordinance Text Amendment

General Plan Amendment
ATTACH AN ADDITIONAL SHEET DETAILING THE REQUEST OF EACH APPLICATION.
Individual application checklists are available at www.glendaleaz.com/planning
Project Name: (none)
Property Address: _7150 N. 57th Drive Gross Acres: _unknown
Major Cross Streets: 59th Avenue/Myrtle
Council District: Ocotillo District - Catlin Court PAD Zone

Existing Land Use: professional office

PROPERTY OWNER

Name: _Coit & Valerie Burner Phone: 623-695-3342 Fax:
Address:_7146 N. 58th Drive

City: _Glendale State: AZ Zip Code: 85301

Email: _bearsmore@aol.com
TO REPRESENT ME IN THIS APPLICATION, | GIVE AUTHORIZATION TO:

Representative Name: Jeffrey Koppelmaa Business Name: Jeffrey S. Koppelmaa, Legal Counsel
Address: PO BOX 926

City: _Jerome State:_AZ Zip Code:_ 86331
Phone: (415)717-7294 Fax:

Email: _counsel@jsk.legal

tf
Coit Burner — LLL bum 2/ Wf ZVG

(Print or type name of owner of record) (Signature of owner of record) (Date)

Revised 8-13-15
City of Glendale @ 5850 West Glendale Avenue, Glendale Arizona 85301-2599 e@ 623-930-2800

JEFFREY S. KOPPELMAA, ESQ. (SBN 032806)
Jeffrey S. Koppelmaa, Legal Counsel

41 Paradise Lane #926

Jerome, AZ 86331-0926

Telephone: (415) 717-7294

counsel@jsk.legal

Representing petitioners Coit and Valerie Burner

PETITION TO THE BOARD OF ADJUSTMENT OF THE
CITY OF GLENDALE, ARIZONA
FOR REVIEW OF PLANNING DEPARTMENT
SUBSTANTIVE POLICY STATEMENT

L STATEMENT OF PETITION

Coit and Valerie Burner (“petitioners”), as property and business owners in the
Catlin Court Planned Area Development Zone district (“Catlin Court PAD Zone”
“Catlin Court district” or the “district”), submit this Petition to the City of
Glendale’s Board of Adjustment (“Board”) pursuant to the Zoning Ordinance of the
City of Glendale, Arizona (“Zoning Ordinance” or “CG ZO”) and Title 9 of the
Arizona Revised Statutes (“A.R.S.”). Petitioners seek Board review of Zoning
Interpretation Record ZIL19-02 dated April 19, 2019 (the “April 19 Interpretation
Record”), a “substantive policy statement” of a “municipality” under Arizona law.
(See A.R.S. §§ section 9-832(5), (8).)

With this submission, petitioners incorporate by reference the record submitted
to and created by the City of Glendale Planning Division regarding the Catlin Court
PAD Zone, including the evidence and argument adduced in petitioner’s Memorandum
of Points and Authorities in Support of Request for City of Glendale Zoning Ordinance
Interpretation and Enforcement — Catlin Court Planned Area Development First Floor
Professional Office Land Use Standard and all accompanying Attachments and
Exhibits (collectively, the “Office Limit Use Standard Memo”) and petitioner’s
Memorandum of Points and Authorities in Support of Request for City of Glendale
Zoning Ordinance Interpretation and Enforcement — Catlin Court Planned Area
Development Business Residential Land Use Standard First Floor Professional Office
Land Use Standard and all accompanying Attachments and Exhibits (collectively, the
“Business Residential Use Standard Memo”).

Petitioners respectfully request a public hearing on this petition pursuant to
A.R.S. section 9-462.06 and reserve any and all rights to present further evidence and

argument in support of this petition as the law of the State of Arizona may allow and
the Board shall deem just and proper.

Il. PROCEDURAL POSTURE

Petitioners submitted to the Planning Division two separate requests for
interpretation of the Catlin Court PAD Development Plan approved by the Glendale
City Council in effect with force of law now (“approved Catlin Court Development
Plan” or “Catlin Court PAD Plan”).

“Catlin Court” is a small, historically significant neighborhood in Glendale
bounded by Myrtle Drive, 57 Avenue, Palmaire Drive, and 59" Avenue. The entire
Catlin Court PAD Zone consists of only four (4) blocks and less than sixty (60)
structures total. The specific land use standards in the Catlin Court Development Plan
protect this historic neighborhood in accordance with the city’s Zoning Ordinance.

Petitioner’s submitted one request for interpretation of a land use standard in the
Catlin Court PAD Plan that expressly limits professional office space use! on the first
floor of the buildings within the district to no more than twenty-five percent of the
total conglomerate first floor area of the district (the PAD’s “office limit use
standard”).” Land use standards based on “maximum floor area ratios” in the district
are expressly authorized in the creation of PADs in Glendale under Section 5.912(B)
of the Zoning Ordinance. (See CG ZO §5.912(B).)

Petitioners submitted another request seeking interpretation and enforcement of
several provisions of the Catlin Court PAD Plan intended to allow residential uses in
the PAD only while the resident is also conducting a permitted business within the
same building (the PAD’s “business residential use standard”).

The Planning Division consolidated both of petitioners’ requests for
interpretation and enforcement in the April 19 Interpretation Record. This document
constitutes a “substantive policy statement” of the Planning Division and Planning
Administrator on each of petitioners’ two requests for interpretation and enforcement,
respectively.

' Section 2.300 of the Zoning Ordinance defines a “Professional Office” to include “[o]ffices where services are
provided that require specialized training or professional certification including but not limited to accountant,
appraiser, attorney, architect, landscape architect, engineer, surveyor, stockbroker, physician, dentist,
chiropractor, massage therapist, psychologist, and optometrist. No goods or merchandise are sold or
exchanged.” (Section 2.300 at “Professional Office.”)

? Notably, professional office land uses on second floors of structures or in basements is unlimited in the Catlin
Court PAD Zone.

3 A.R.S. section 9-832(8) defines a “Substantive policy statement” to mean “a written expression that is only
advisory and that informs the general public of a municipality's current approach to, or opinion of, the

Petitioners’ respond in this consolidated petition seeking reversal of the
Planning Division’s decision on each of their requests for interpretation and
enforcement of the Catlin Court PAD Plan accordingly.

III. GROUNDS FOR PETITION

A. The Catlin Court PAD Plan Has a Strong Legal Presumption of Validity
Expressly As Written.

City of Tempe v. Rasor, 24 Ariz. App. 118, 536 P.2d 239 (1975);
Peabody v. City of Phoenix, 14 Ariz. App. 576, 485 P.2d 565
(1971); Mueller v. City of Phoenix, 102 Ariz. 575, 435 P.2d 472
(1967); Hart v. Bayless Investment & Trading Co., 86 Ariz. 379,
346 P.2d 1101 (1959); City of Phoenix v. Collins, 22 Ariz. App.
145, 524 P.2d 1318 (1974); City of Phoenix v. Beall, 22 Ariz.
App. 141, 524 P.2d 1314 (1974); City of Phoenix v. Price,

18 Ariz. App. 144, 500 P.2d 1132 (1972); City of Phoenix v.
Fehlner, 90 Ariz. 13, 363 P.2d 607 (1961); Edwards v. State
Board of Barber Examiners, 72 Ariz. 108, 231 P.2d 450 (1951);
City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923
(1928); City of Phoenix v. Oglesby, 112 Ariz. 64, 537 P.2d 934
(1975).

B. Arizona Law Does Not Allow the Planning Division to Disregard or Rewrite
Express Land Use Standards in the Catlin Court PAD Plan.

Every zoning ordinance is presumed valid unless shown that it lacks a
“substantial relationship” to “public health, safety morals or general
welfare.” This broad interpretation allows for land use standards to
achieve the purposes like those described in the Catlin Court PAD Plan -
to assist in the “orderly and balanced growth” of the City of Glendale.

See City of Tempe v. Rasor, 24 Ariz. App. 118, 536 P.2d 239
(1975); Peabody v. City of Phoenix, 14 Ariz. App. 576, 485 P.2d
565 (1971); Corrigan v. City of Scottsdale, 149 Ariz. 553, 720
P.2d 528 (1985); City of Phoenix v. Collins, 22 Ariz. App. 145,
524 P.2d 1318 (1974); City of Phoenix v. Beall, 22 Ariz. App.
141, 524 P.2d 1314 (1974); Weitz v. Davis, 102 Ariz. 40, 424
P.2d 168, 171 (1967); City of Phoenix v. Burke, 9 Ariz. App. 395,
452 P.2d 722 (1969); Klensin v. City of Tucson, 10 Ariz. App.

requirements of the ordinances or codes, including, if appropriate, the municipality's current practice, procedure
or method of action based on that approach or opinion.” (A.R.S. §9-832(8).)

399, 459 P.2d 316 (1969); Rubi v. 49er Country Club Estates,
Inc., 7 Ariz. App. 408, 440 P.2d 44 (1968); Dye v. City of
Phoenix, 25 Ariz. App. 193, 542 P.2d 31 (1975); Cardon Oil Co.
v. City of Phoenix, 122 Ariz. 102, 593 P.2d 656

(1979); Bartolomeo v. Town of Paradise Valley, 129 Ariz. 409,
631 P.2d 564 (App. 1981); City of Phoenix v. Fehiner, 90 Ariz.
13, 363 P.2d 607 (1961); Klensin v. City of Tucson, 10 Ariz.
App. 399, 459 P.2d 316 (1969); City of Phoenix v. Price,18 Ariz.
App. 144, 500 P.2d 1132 (1972); City of Tucson v. Arizona
Mortuary, 34 Ariz. 495, 272 P. 923 (1928).

See also Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72
L.Ed. 842 (1928); Village of Euclid v. Ambler Realty Co., 272
U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926).

2. Arizona law holds that the Board and the courts must uphold
enforcement of the Catlin Court PAD Plan that as long as the ability
to enforce the zoning ordinance on its specific terms as written is so
much as “fairly debatable.”

Rubi v. 49er Country Club Estates, Inc., 7 Ariz. App. 408, 411,
440 P.2d 44 (1968); City of Tempe v. Rasor, 24 Ariz. App. 118,
536 P.2d 239 (1975); Dye v. City of Phoenix, 25 Ariz. App. 193,
542 P.2d 31 (1975); City of Phoenix v. Beall, 22 Ariz. App. 141,
524 P.2d 1314 (1974); Corrigan v. City of Scottsdale, 149 Ariz.
553, 720 P.2d 528 (1985); City of Phoenix v. Collins, 22 Ariz.
App. 145, 524 P.2d 1318 (1974); City of Phoenix v. Price,18 Ariz.
App. 144, 500 P.2d 1132 (1972); Pima County v. Arizona Title
Ins. & Trust Co., 115 Ariz. 344, 565 P.2d 524 (1977); Peabody v.
City of Phoenix, 14 Ariz. App. 576, 485 P.2d 565 (1971); City of
Tucson vy. Arizona Mortuary, 34 Ariz. 495, 272 P. 923 (1928);
City of Phoenix v. Fehiner, 90 Ariz. 13, 363 P.2d 607 (1961).

3. The burden of proof on this issue is squarely on the party challenging
the enforcement of the zoning provision — here, the Planning
Administrator.

See City of Phoenix v. Fehiner, 90 Ariz. 13, 363 P.2d 607

(1961); City of Tucson vy. Arizona Mortuary, 34 Ariz. 495, 272 P.
923 (1928); Rubi v. 49’er County Club Estates, Inc., 7 Ariz. App.
408, 440 P.2d 44 (1968); Pima County v. Arizona Title Ins. &
Trust Co., 115 Ariz. 344, 565 P.2d 524 (1977); see also City of
Phoenix v. Beall, 22 Ariz. App. 141, 524 P.2d 1314 (1974).

4. The Planning Administrator has not claimed (and cannot claim) that
the office limit use standard fails the basic test for enforcement under
Arizona law.

a. The office limit use standard and the business residential use
standard have a “substantial relationship” to “public health,
safety morals or general welfare” by regulating land use to in
the PAD Zone expressly to protect a unique “specialty retail”
neighborhood in Glendale.

b. Asa matter of law, petitioners’ request to interpret and enforce
the office limit use standard according to the express terms of
this PAD Zone ordinance presents at least a “fairly debatable”
interpretation of this land use standard.

5. The Planning Administrator has not claimed (and cannot claim) that
the business residential use standard fails the basic test for
enforcement under Arizona law.

a. The business residential use standard has a “substantial
relationship” to “public health, safety morals or general welfare”
by regulating land use in the PAD Zone expressly to protect a
unique “specialty retail” neighborhood in Glendale.

b. Asa matter of law, petitioners’ request to interpret and enforce
the business residential use standard according to the express
terms of this PAD Zone ordinance presents at least a “fairly
debatable” interpretation of this land use standard.

C. The Catlin Court PAD Plan Provisions at Issue Are Not “Clearly Arbitrary
And Unreasonable” And The Board — And The Courts - Must Enforce These
Land Use Standards As Enacted By The City Council

1. The Planning Division has the burden of proof to justify its refusal to
enforce by showing that a Catlin Court PAD Plan land use standard is
invalid because it is “clearly unreasonable and arbitrary.”

City of Tempe v. Rasor, 24 Ariz. App. 118, 536 P.2d 239 (1975);
City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923
(1928); City of Phoenix v. Collins, 22 Ariz. App. 145, 524 P.2d
1318 (1974); Corrigan v. City of Scottsdale, 149 Ariz. 553, 720
P.2d 528 (1985).1318 (1974); Dye v. City of Phoenix, 25 Ariz.

App. 193, 542 P.2d 31 (1975); Mueller v. City of Phoenix, 102
Ariz. 575, 435 P.2d 472 (1967); City of Phoenix v. Fehiner, 90
Ariz. 13, 363 P.2d 607 (1961); City of Phoenix v. Beall, 22 Ariz.
App. 141, 524 P.2d 1314 (filed July, 1974); City of Phoenix v.
Price, 18 Ariz. App. 144, 500 P.2d 1132 (1972); Peabody v. City
of Phoenix, 14 Ariz. App. 576, 485 P.2d 565 (1971); Hawes v.
Cooper, 14 Ariz. App. 88, 480 P.2d 1005 (1971); Klensin v. City
of Tucson, 10 Ariz. App. 399, 459 P.2d 316 (1969); Rubi v. 49er
Country Club Estates, Inc., 7 Ariz. App. 408, 440 P.2d 44 (1968).

2. The Planning Administer has not met (and cannot meet) this standard

of proof by simply claiming inconvenience or difficulty in
administering the law.

City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923
(1928); City of Phoenix v. Price, 18 Ariz. App. 144, 500 P.2d
1132 (1972); City of Phoenix v. Fehiner, 90 Ariz. 13, 363 P.2d
607 (1961); Mueller v. City of Phoenix, 102 Ariz. 575, 435 P.2d
472 (1967); Peabody v. City of Phoenix, 14 Ariz. App. 576, 485
P.2d 565 (1971) quoting Edwards v. State Board of Barber
Examiners, 72 Ariz. 108, 231 P.2d 450 (1951).

See also Rubi v. 49'er Country Club Estates, Inc., 7 Ariz. App.
408, 440 P.2d 44 (1968); City of Tempe v. Rasor, 24 Ariz. App.
118, 536 P.2d 239 (1975).

D. The Planning Division’s Interpretation of the Catlin Court PAD Office Limit
Use Standard is Not Supported in Fact or Law.

The City of Glendale encourages Planned Area Development zones
like the Catlin Court PAD Zone to design innovative neighborhood
land use limitations through standards that regulate based on

conglomerate maximum floor area ratios devoted to non-residential

uses.

CG ZO Section 5.912(B) states in pertinent part:

An applicant shall submit a detailed development
plan for the area of the PAD request which shall
include . . . [a djescription of the proposed land use
areas and the specifications including use standards
of each area including:

a. Proposed dwelling unit type, total
land area, and maximum density of
residential use areas.

b. Proposed uses other than
residential, total land area, and
maximum floor area ratios
associated with commercial or
industrial uses.

(Section 5.912(B); emphasis added).

. The Catlin Court Office Limit Use Standard Is Not “Impossible” To
Enforce.

a. Arizona courts have considered mathematical difficulties in
applying zoning ordinances, including PAD zone floor area use
calculations, without abandoning the effort as “impossible.” See
City of Tempe v. Rasor, 24 Ariz. App. 118, 536 P.2d 239 (1975);
see also Peabody v. City of Phoenix, 14 Ariz. App. 576, 485 P.2d
565 (1971).

b. By using the Cartesian coordinate system and four-function
mathematics, it is certainly possible to determine, for any point in
time, the total aggregate first floor area within the approximately
60 structures in the four city block Catlin Court PAD Zone area.

c. With these same tools, it is also certainly possible to determine,
for any point in time, the proportion of that total aggregate first
floor area that is in current use as professional office space.

. The Planning Division’s Abandonment of Good Faith Efforts to
Enforce the Office Limit Use Standard Is Improper and Unjustified.

a. The Zoning Ordinance gives the Planning Administrator the tools
for data gathering and follow up enforcement of any land use
standard in force in the City of Glendale. (See CG ZO § 1.301(B),
A.R.S. §9-462.05.)

b. The Zoning Ordinance imposes the legal duty on the Planning
Administrator to use these tools to enforce the office use standard
as written.

Fundamentally, the Planning Administrator has duties specified in
Section 3.101, which include but are not limited to:

A. Administration and interpretation of this ordinance,
including: clarification of the intent, review of land uses
described and included in a zoning district, and
delegation of responsibilities for administering
procedures and requirements of the ordinance;

B. Authorizing administrative relief;
C. Enforcement of this Zoning Ordinance, and;

D. Preparing application guidelines, forms, and
administrative procedures.”

(Section 3.101; emphasis added.)

c. The Planning Administrator’s own suggestion in the April 19
Interpretation Record to amend the office limit use standard
would entail using property owner disclosures and investigative
tools for confirmation, for example. (April 19 Interpretation
Record, pp. 4-5; see also City of Tempe v. Rasor, 24 Ariz. App.
118, 536 P.2d 239 (1975); Peabody v. City of Phoenix, 14 Ariz.
App. 576, 485 P.2d 565 (1971).

d. The Planning Division’s prior enforcement of the office limit use
standard documented in the record proves that the division has
recently been willing to perform the legal duty of gathering data
within this four-block area neighborhood. (See Office Limit Use
Standard Memo, pp. 6-7, Attachment 2.)

e. The Planning Division’s prior enforcement of the office limit use
standard documented in the record also shows that the division
has only recently deemed its legal duty to administer this
ordinance too impractical or too difficult to undertake. (See Office
Limit Use Standard Memo, pp. 6-7, Attachment 2.)

4. Asa Matter of Law, The Planning Administrator and the Board Do
Not Have Discretion to Refuse to Enforce The Catlin Court Office
Limit Use Standard as Enacted.

Arizona law imposes the legal duty on this Board to enforce the
office use standard as written -- even if it might would prefer to
enforce a different land use standard. (A.R.S. §9-462.06.)

A.R.S. §9-462.06; Janson v. Christensen, 167 Ariz. 470, 808 P.2d
1222 (Ariz. Sup. Ct. 1991) citing Balestrieri v. Hartford Accident
& Indem. Ins. Co., 112 Ariz. 160, 163, 540 P.2d 126, 129 (Ariz,
Sup. Ct. 1975); see also City of Phoenix v. Fehiner, 90 Ariz. 13,
363 P.2d 607 (1961); Rubi v. 49’er County Club Estates, Inc., 7
Ariz. App. 408, 440 P.2d 44 (1968); Zahn v. Board of Public
Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074 (1927); 101
C.J.S. Zoning § 68.

E. The Planning Administrator’s Interpretation of the Catlin Court Residential
Business Use Standard is Not Supported in Fact or Law.

1. The Planning Administrator Misinterprets the Plain Meaning of the
Catlin Court Residential Business Use Standard.

a. As with all statutory interpretations, the words of the Catlin Court
PAD Plan are to be interpreted in conformance with their regular
and ordinarily understood meanings.

See Janson v. Christensen, 167 Ariz. 470, 808 P.2d 1222 (Ariz,
Sup. Ct. 1991) citing Balestrieri v. Hartford Accident & Indem.
Ins. Co., 112 Ariz. 160, 163, 540 P.2d 126, 129 (Ariz, Sup. Ct.
1975); State Farm Mutual Ins. Co. v. Lindsey, 180 Ariz. 456, 885
P.2d 144 (1994); Mail Boxes, Etc. U.S.A. v. Indus. Comm'n, 181
Ariz. 119, 121, 888 P.2d 777, 779 (1995); Canon Sch. Dist. No.
50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503
(1994) Mid Kansas Fed. Sav. & Loan Ass'n v. Dynamic Dev.
Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991).

b. The Planning Administrator’s interpretation of the residential
business use standard relies entirely on the ostensibly permissive
phrase “A person may live and work within the same building”
and ignores the restrictive adverb clause “while conducting
business” that completes the very same sentence.

c. By its plain meaning, this adverb clause expressly limits when the
“person may” reside in the “same building” as the business itself.

It is possible for someone to comply (like petitioners do) with the
use standard by maintaining a suitable business in a building
within the zone. Petitioners “may” then choose to live in the
building (or not) providing they reside there “while conducting”
their business.

On the other hand, it is literally impossible (grammatically and
otherwise) for a person who “may live and work within the same
building while conducting business” to exercise this “permissive”
right legally if the person conducts no business on the property.

2. The Planning Administrator Cannot Invalidate or Ignore Express
Provisions in the Catlin Court PAD Plan That Confirm the Meaning
of The Catlin Court Residential Business Use Standard.

a. As with all statutory interpretations, the terms of the Catlin Court
PAD Plan are to be read as a whole to give all terms of the
ordinance actual, operative effect so that “no clause, sentence or
word is rendered superfluous, void, contradictory or
insignificant.”

Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173
(App. 1993); see also Pinto Valley Copper Corp. v. Arizona
Dep't of Economic Sec., 146 Ariz. 484, 486, 706 P.2d 1251, 1253
(Ct.App. 1985); Marlar v. State, 136 Ariz. 404, 411, 666 P.2d
504, 511 (Ct.App. 1983); cf Hunt Inv. Co. v. Eliot, 154 Ariz.
357, 361, 742 P.2d 858, 862 (Ct.App. 1987).

b. The Planning Administrator has impermissibly ignored the
numerous cited passages in the PAD Plan supporting a restrictive
interpretation of the residential business use standard that gives
operative meaning to the land use standard. (See Business
Residential Use Standard Memo pp. 3-6, Attachment 1.)

3. The Catlin Court PAD Zone Business Residential Use Standard
Builds on Current City Zoning While The Division’s Interpretation
Contradicts The General Plan.

a. Ifestablished in the public record, Petitioners ask the Board to
take official notice that a C-2 Zone applied to the area now
within the Catlin Court PAD Zone prior to establishment of the
PAD.

b. Ifestablished in the public record, Petitioners ask the Board to
take official notice that the C-2 Zone presently surrounding the
Catlin Court PAD Zone would apply to the PAD Zone area if the
Catlin Court PAD Plan were invalidated.

See attached City of Glendale Zoning Map 8 and sectional
enlargement; compare CG ZO §5.902.

See also Envision Glendale 2040 Plan, Fig. 2, p. 2-5;
https://www.glendaleaz.com/planning/documents/EnvisionGlend
ale2040GeneralPlan-August2016.pdf; cf: Peabody v. City of
Phoenix, 14 Ariz. App. 576, 485 P.2d 565 (1971).)

c. Petitioners’ interpretation of the plain meaning of the Catlin
Court residential business use standard is consistent with the
underlying and surrounding zoning.

The PAD ordinance provides additional value to the
underlying/surrounding C-2 zone through a limited and directly
related residential use.

See CG ZO §5.902; compare CG ZO §5.750 et seq. and Business
Residential Use Standard Memo, Attachment 1.; see also Peabody
v. City of Phoenix, 14 Ariz. App. 576, 485 P.2d 565 (1971).

d. In contrast, the Planning Division’s misinterpretation of the plain
meaning of the Catlin Court residential business use standard is
inconsistent with the current underlying and surrounding C-2
zoning.

See CG ZO §§5.300 et seq., 7.304; compare with CG ZO §5.750
et seg. and Business Residential Use Standard Memo,
Attachment 1.

F. The Planning Division’s Misinterpretation of the Catlin Court PAD Plan
Land Use Standards May Entitle Petitioners to Recover Damages from the
Planning Division.

1. As detailed in their interpretation and enforcement requests,
petitioners have relied significantly on their legitimate expectation
that the Catlin Court PAD Plan would be enforced according to its
terms, to wit creating a neighborhood with limited first floor office
space use and no solely residential uses. (See Office Limit Use

Standard Memo, pp. 5-7, Attachments 1-3; Business Residential Use
Standard Memo pp. 5-7, Attachments 1, 2.)

. Ifupheld by the Board, the Planning Division’s refusal to enforce the
Catlin Court PAD Plan according to its express terms would cause
economic harm to petitioners’ business, which complies in all
respects with the Catlin Court PAD Plan as enacted.

. The Planning Administrator gives support to petitioners’ damage
claim in observing that petitioners could easily find substitute space
available in less unique, less historical, less charming, less
specialized and less desirable specialty retail zones in the City of
Glendale.

a. “Understanding historical context provides an appreciation for
historical and archaeological resources, creating a greater sense of
place and enhanced community character. This understanding and
appreciation is especially important for downtown, including
Catlin Court — one of Arizona’s iconic historical and cultural
destinations.” (“Envision Glendale 2040 — City of Glendale
General Plan” Sept. 30, 2016 at pp. 1-7; emphasis added.

(http://www.glendale2040.com/images/documents/final_/envision
_glendale_2040_general_plan_september_2016.pdf.)

b. The Catlin Court PAD Plan states: “Permitted specialty retail uses
include but are not limited in character to, working studio space
for Artists, Bookstores, Old Time Photography Studios, Bakeries,
Restaurants, Antique Shops, Museums, Ice Cream Parlors,
Delicatessens, Candy Shops, Craft Shops, Quilt Shops, Ceramic
Stores, Candle Shops, Card Shops, Clock Shops, Doll Shops,
Florists (fresh and dried),Leather Shops, Specialty Clothing
Boutiques, Toy Shops, Kitchen/Gourmet Shops, Travel Agency,
Gift Shops, Art Galleries, China Shops, Linen Shops, Glass~
Shops, Special Holiday Shops, Wood Working Shops, Wedding
Chapels, etc.” (Business Residential Use Standard Memo pp. 3-4,
Attachment 1 at p. 35.)

c. The unique and valuable attributes of property ownership in the
Catlin Court PAD Zone depend specifically on limiting first-floor
(retail level) office space use to preserve the PAD as a specialty
retail destination. (See Office Limit Use Standard Memo, pp. 4-7,
Attachment 1.)

d. These unique and valuable attributes of property ownership in the
Catlin Court PAD Zone also depend specifically on prohibiting
“residence only” use of the structures within the PAD so that
residential use does not subsume the primary specialty retail use.
(See Business Residential Use Standard Memo pp. 3-4,
Attachment 1.)

e. By refusing to enforce the Catlin Court PAD Plan land use
standards at issue as enacted by the Glendale City Council, the
Planning Division and the Board would be directly depriving
petitioners of these valuable property interests.

4. Petitioners submit that the Planning Division’s interpretation is not an
enforcement of a prior law but a substantive change in the law. If
upheld by the Board, petitioners contend that this new interpretation
of the Catlin Court PAD Plan will constitute a “legislative act.”

See Wennerstrom v. City of Mesa, 169 Ariz. 485, 821 P.2d 146
(1991) Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 811 P.2d
22 (1991); Wait v. City of Scottsdale, 127 Ariz. 107, 108, 618 P.2d
601, 602 (1984); Pioneer Trust Co. v. Pima County, 168 Ariz. 61,
811 P.2d 22 (1991); Corrigan v. City of Scottsdale, 149 Ariz. 553,
720 P.2d 528 (1985); City of Phoenix v. Beall, 22 Ariz. App. 141,
524 P.2d 1314 (1974)

See also Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct.
1536, 39 L.Ed.2d 797 (1974).

5. Ifupheld by the Board, the municipality’s failure and refusal to
enforce the Catlin Court PAD Plan according to its express terms
may trigger a Prop. 207 (A.R.S. §12-1134) cause of action for just
compensation. (A.R.S. §12-1134, Sedona Grand, LLC v. City of
Sedona, 229 Ariz. 37, 270 P.3d 864 (2012).)

6. Ifupheld by the Board and reversed by the Superior Court, the
Planning Division’s failure and refusal to enforce the Catlin Court
PAD Plan according to its express terms could also expose the
Planning Division to judgment for expert fees, attorneys’ fees and
costs, and refund of filing fees in addition to a “just compensation”
award. (A.R.S. §§9-832, 12-348, 12-1134.)

IV. CONCLUSION AND PRAYER FOR RELIEF

By reason of the foregoing points and authorities as well as those in the
incorporated Office Limit Use Standard Memo and Business Residential Use Standard
Memo and in consideration of the documents attached hereto, those documents
previously incorporated and submitted, matters of public record, and such other
evidence as the Board may consider, petitioners request an order reversing the
Planning Division’s April 19 Interpretation Request and directing the Planning
Administrator promptly to take all necessary steps to enforce the Catlin Court PAD
Plan with respect to land use at the subject properties at 7150 North 57th Drive and
7150 North 58th Drive, respectively, in the City of Glendale, Arizona.

Respectfully submitted this 20" day of May 2019.

JEFFREY S. KOPPELMAA, LEGAL COUNSEL

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Excerpted from City Of Glendale, AZ Zoning Map #8

https://www.glendaleaz.com/planning/documents/ZoningAtlas8.pdf