For the second time in two years, the Arizona Supreme Court is being asked whether a handful of Sierra Vista residents can challenge a city zoning rule now or must they spend time and money on appealing at the city level even though city officials admit the appeal process will not resolve the dispute.
In July 2020, the City of Sierra Vista sent out written notices to various residents who have been using recreational vehicles (RVs) for housing at the Cloud 9 Mobile Home Park in violation of the city’s Development Code. Notices were also sent to lot owners who were renting their spaces to people living in RVs.
The City warned that the RVs had to be removed from the property within 30 days. Continued use of an RV for living purposes on the property “will be subject to further enforcement action,” the notice warned.
City officials concede the 30-day notice did not include information on an appeal process “because none exist.” In fact, city officials have admitted that there is no mechanism under city code to grant a variance even for those who have been living at Cloud 9 in an RV for years.
It is legal to live in RVs in some parts of Sierra Vista, including in a different section of Cloud 9. But the age and condition of the RVs -which are not operational as vehicles- as well as the cost makes it unfeasible for the targeted residents to relocate even if they wanted to and could find somewhere to move to.
The City’s Planning and Zoning Commission considered an amendment to the zoning code but the proposal was rejected by the city council in February 2021. City officials then announced plans to move forward with enforcement once Arizona’s pandemic eviction prohibitions were lifted.
The impacted residents and lot owners did not wait. With representation by the Institute For Justice, they sued the City one week later, challenging the constitutionality of an ordinance that makes the plaintiffs’ long-time “homes” illegal.
A Cochise County judge quickly dismissed the case, ruling there was nothing the courts could do until city officials actually initiated enforcement action. The Arizona Court of Appeals then declined in July 2022 to hear the matter due to perceived jurisdictional issues.
But the Arizona Supreme Court set aside that appellate court’s decision in January of this year, sending the case back to the court of appeals with instructions on what to consider.
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One month later, the appellate court ruled against the residents, relying on a legal position neither the plaintiffs nor the city ever argued – that the residents and lot owners had not exhausted all administrative remedies through the city.
The judicial review the residents and lot owners were requesting, the court of appeals ruled, is not available until the administrative process “has run its course.”
The residents and lot owners then filed a second petition for review to the supreme court in March.
The petition argues there is no mechanism via city hall to guarantee the RV homes can stay put, so it is unreasonable to expand more time and money for a futile administrative appeal.
Even if city officials found a way to make a temporary variance available, the petition argues anything short of a permanent variance would leave the impacted residents and lot owners at threat of future action.
In May, the Phoenix-based Berke Law Firm filed a response on behalf of the city. The response argues the court of appeals was correct, and that the residents and lot owners must first exhaust all administrative efforts even if it obvious the desired relief is not an option.
“Here, if Petitioners fail to secure a variance through the administrative process, they can then raise their constitutional challenges through an appeal,” the city argues to the Arizona Supreme Court.
The justices are expected to decide in a few months whether to hear the case again. Or, they can allow the appellate order to stand and require a futile effort for a variance the city already insists cannot be issued.