Arizona City Attorneys Association 2015 Annual Meeting. LAND USE ODDITIES Ellen Van Riper. Pigs can fly in the City of Phoenix

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1 Arizona City Attorneys Association 2015 Annual Meeting LAND USE ODDITIES Ellen Van Riper Pigs can fly in the City of Phoenix Not all land use regulations are found in your city s Zoning Ordinance. General City Code provisions and other types of municipal laws (e.g., building codes, policies) may also regulate how private property may be used, and what uses may occur. What happens when there is a direct conflict between a land use entitlement and a City Code provision? Which law prevails and governs? I encountered this precise issue in 2003 when I represented a property owner who had been cited by City of Phoenix Code Enforcement for maintaining and operating a pig farm on an approximately 12-acre parcel located on Lower Buckeye Road. The client s family had been operating the pig farm since the 1960 s and acquired the property in The property was improved with a residence and structures for raising and keeping pigs for slaughter. This use was established and continuous well before the area was annexed by Phoenix in December The property was zoned Rural-43 under Maricopa County s Zoning Ordinance. This is Maricopa County s prevailing zoning designation (a default ), which allows a number of agricultural uses, including raising and keeping traditional farm animals, such as cows, horses, chickens, and pigs. A Maricopa County Zoning Map from 1956 showed the zoning as Rural-43, and there had been no changes. The purpose of the Rural-43 zone is: The principal purpose of this zoning district is to conserve and protect farms and other open land uses, foster orderly 1

2 growth in rural and agricultural areas, and prevent urban and agricultural land use conflicts; but when governmental facilities and services, public utilities and street access are available, or can reasonably be made available, applications for change of this zoning district to any single-family residential zoning district will be given favorable consideration. Principal uses permitted in this zoning district include both farm and non-farm residential uses, farms and recreational and institutional uses. (Emphasis supplied). Article II of the Maricopa County Zoning Ordinance, Section 201, defines farm as: An area of not less than 2 contiguous acres which is used for the commercial production of farm crops such as vegetables, fruit trees, cotton, grain and other crops and their storage on the area, as well as the raising thereon of farm poultry and farm animals, such as horses, cattle, sheep and swine for commercial purposes.... (Emphasis supplied). When the property was annexed in 1983, Phoenix zoned it RE-35 under the Phoenix Zoning Code, a zoning district that does not allow the raising or keeping of swine. The client s pig farm was not an issue until 2003, when a homebuilder acquired a large property directly across the street with plans to develop a large subdivision. Obviously, the homebuilder did not consider a pig farm a desirable use to have across the street from his property. Other development had occurred previously, including the construction of an elementary school directly adjacent west of the farm, without any complaints or enforcement efforts. There was no evidence that the farm created a public nuisance, particularly a health nuisance, etc. The client was cited into City Court under Phoenix City Code 8-8(b) and Below is the text of the current provisions. Section 8-8 was most recently amended in 2010: 2

3 8-8 Regulations for keeping within City. (a) The maintaining or keeping of all animals within the City shall be allowed as stated above only so long as they do not cause, create or contribute to or become a health nuisance due to noise, the presence of flies, mosquitoes, insects, vermin, rodent harborage, odors, dust, ponded water, accumulation of manure, garbage, refuse or other obnoxious or putrescible material, or for any other like reason. Manure and droppings shall be removed from pens, stables, yards, cages, and other enclosures at least twice weekly and shall be removed from the premises at least twice each week. For the purposes of this provision "premises" means the lot or parcel of ground upon which the pen, stable, yard, cage or other enclosure is located. (b) No swine shall be kept within the City limits, except purebred miniature Vietnamese potbelly pigs and other similar purebred miniature pigs. Miniature pigs shall not exceed one hundred twenty-five pounds. No more than three miniature pigs shall be allowed per household. This ordinance shall not apply to or affect any prosecutions filed prior to the effective date of this ordinance. (Emphasis supplied) 8-20 Penalties. Unless otherwise provided by law, any owner or other person who violates any provisions of this article shall be guilty of a Class 1 misdemeanor. The defense was that the pig farm was a legal nonconforming use when it was annexed such that the clients had a legal right to continue this use, notwithstanding the City Code prohibition. See A.R.S (A); Phoenix Zoning Ordinance, Chapter 9 (Nonconformities), 901 ( Any nonconforming use, structure, or parcel of land that lawfully existed as of the effective date of these regulations and that remains nonconforming, and any use, structure or parcel of land that has become nonconforming as a result of the adoption of these regulations or any subsequent amendment to these 3

4 regulations or as a result of annexation into the City, may be continued or maintained.) (Emphasis supplied). The critical question was whether the clients were lawfully farming pigs on their property in Maricopa County before the area was annexed by Phoenix in December 1983, and whether the use had been continuous up through 2003 when they were cited for violating City Code 8-8(b). The clients bore the burden of proof to support their continuous use before and after annexation. The evidence presented at trial was testimony by a number of family members (including the elderly family matriarch who still lived on the farm) and long-time customers of the farm. Exhibits consisted of archived aerial photos showing the use of the property. Aerial photos from 1971, 1982, and 2002, were obtained from the City s public files. They all showed the presence of a residence near the front of the property and a series of pig pens to the rear along the west property line. Comparison of the 1971 photo with those from 1982 and 2002 show that the operation had become less intense over the years, as the number of pig pens has diminished. The availability of archived aerial photos was limited in the early 2000 s. Today, they are readily found on the Maricopa County Assessor s website and can be a powerful tool for a number of real estate-related disputes. RESULT The clients were found not guilty by the City Court Judge, who agreed that the legal nonconforming use trumped the City Code prohibition on the keeping of swine. I later learned that the clients continue to use a portion of the property as a pig farm until 2005 or Because the area continued to develop with more subdivisions, the clients moved the pig farm operation to another, more remote location in Maricopa County, where they also had many acres with water rights. 4

5 1949 and

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