Howard Fischer
Being offended by a new billboard in your neighborhood does not give you the legal right to challenge a decision by local officials to allow it, the Arizona Court of Appeals ruled Wednesday.In a unanimous decision, the three-judge panel said anyone seeking to overturn such actions has to show they have suffered a “sufficient particularized palpable injury” to have legal standing to go to court. That means something more than concerns about the aesthetics of the area, the judges said.The ruling has much broader statewide implications, and not just involving billboards, according to attorney Kimberly MacEachern, representing the homeowners who unsuccessfully sued over billboards.She said the same laws that regulate appeals of decisions by local boards of adjustment about where billboards can go also govern rulings granting variances from zoning ordinances that otherwise regulate what is and is not permissible in certain areas. At the least, that can include everything from required setbacks, to requests to build detached additional structures, to whether certain “home occupations” can be allowed in residential areas, she said.
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“You’ll have situations like you have here where you basically have an unreviewable decision that is contrary to the zoning law and no one can check it because there’s no one that qualifies under those standards,” MacEachern said, calling it “a broken system.””It gives the developers and the billboard people powers that no one else in our government has,” she said. “There’s nobody that would qualify under the standards for standing.”Arizona law The case decided Wednesday involves efforts by Clear Channel to relocate three billboards onto the facade of a newly planned tower at Central Avenue and Thomas Road in Phoenix to be built on the site. The company also wants to convert two of those billboards from static to digital.A zoning adjustment hearing officer approved relocation but not conversion. That last half was overturned by the board of adjustment.That led to an appeal by the Arcadia Osborn Neighborhood Association and several individuals.Arizona law allows challenges to decisions by boards of adjustment in two categories.One is by those who own or lease property within 300 feet of the boundary of the affected parcel. That does not apply here.The second permits lawsuits by any “person aggrieved” by a board decision.Appellate Judge James Morse Jr., writing for the three-judge panel, said he and his colleagues interpret that broadly, “with an eye towards promoting the ends of justice.”Still, he said, there are limits.”To have standing to bring an action under the statute, a plaintiff must allege ‘particularized harm’ resulting from the board’s decision,” Morse wrote.”Generalized harm” not enough to sue over”An allegation of generalized harm that is shared alike by all or a large class of citizens generally is not sufficient to confer standing,” he continued. “In other words, general economic losses or general concerns regarding aesthetics in the area without a particularized palpable injury to the plaintiff are typically not sufficient to confer standing.”That is what’s at issue here, Morse said.He said the individual property owners asserted harms related to traffic safety and loss of aesthetic value in the area, focused on the frequency with which they use the intersection next to the property.”But it is not enough that a plaintiff has suffered the same kind of harm or interference as the general public but to a greater extent or degree,” Morse said.Nor was the appellate court swayed by arguments by one of the plaintiffs that she works in a building within view of the property.The judge said she does not claim she would be able to see the proposed billboards from her office.”Instead, she claims that she may be distracted by them if she chooses to work in other public areas of the building or in a nearby cafe,” he said. Not good enough, Morse said.”These claims also fail to show a particularized harm that is not shared by others who regularly travel through and frequent businesses located at a busy intersection in midtown Phoenix,” he said.MacEachern said the solution to the problems encountered by her clients — and others who object to waivers granted by a board of adjustment — may fall to the Legislature, which restricted their rights to protest those decisions.”You either have to be a taxpayer within so many feet, which is arbitrary and capricious, or be one of these people that falls into one of these vague categories,” she said, meaning someone with a “sufficient particularized palpable injury.””And it takes you two and a half, three years to even figure out if you have the standing to make the argument,” MacEachern said. “I mean, this is a broken system.”Previous ruling There is an exception to the requirements for those challenging decisions — at least on billboards.In a 2011 ruling, the appellate judges agreed to allow Scenic Arizona, a statewide organization “dedicated to scenic preservation and outdoor advertising control,” to file suit over a decision by the Phoenix Board of Adjustment to allow a company to operate an electronic billboard next to Interstate 17, even though none of the group’s members lived next to the site or could show “particularized injury” to their own properties.The difference, Morse noted, was that Scenic Arizona based its challenge on the Arizona Highways Beautification Act. That statute is Arizona’s version of a federal law that prohibits electronic billboards in certain locations, enforced by the risk of losing certain federal highway funds.Scenic Arizona claimed the sign would interfere with the proper use and enjoyment of one of the state highways, which are interests within the scope of the state law, the judge noted.”The loss of ‘aesthetic enjoyment,’ ‘increased safety risk,’ and other specified harms that Scenic Arizona alleged fell within the zone of interests the Arizona Highways Beautification Act was intended to protect — the safety and aesthetics of Arizona highways,” Morse said.Restricting legal standing to assert claims under that state law to only neighboring property owners who experience injuries to their own properties “would make highway billboards virtually immune from judicial review,” he said.None of that helps those challenging the Phoenix billboards in the current case, Morse said.”Ordinary zoning ordinances do not create the same special interest” as the Arizona Highways Beautification Act, the judge said.
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Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on Twitter at @azcapmedia or email azcapmedia@gmail.com.
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