A Tucson, Ariz., resident backed by the Tucson Association of Realtors has prevailed in a lawsuit against a city ordinance that requires historic review prior to issuance of a demolition permit for his home, though the city may pursue an appeal.
The Realtor group, in paying the resident’s legal costs, sought "to establish legal precedent that will prevent cities from using similar tactics in the future to try to take away private property rights without first providing the requisite due process," according to an announcement in September, when the lawsuit was filed.
The resident, Eric E. Button, charged in his lawsuit that the city’s demolition permit process is void because it effectively served as a zoning ordinance "that the city enacted without satisfying the due process requirements" under state law.
"These requirements include, at a minimum, a hearing on the matter and public notice published in a newspaper of general circulation at least 15 days before the hearing. Here, the city gave no public notice whatsoever … and, therefore, the ordinance is void," the lawsuit charges.
In its September announcement, the Tucson Realtors group stated that Button was required to submit a historic survey to the city "for his house and for every property within 300 feet of his house," and that the total duration of the review process, which could include the city’s documentation of historic features and city consideration of whether to purchase or arrange purchase of the property, could take between two months to 11 months to complete.
Mike Rankin, Tucson’s city attorney, said in a statement, "We’re disappointed in Judge (John F.) Kelly’s ruling. We are in the process of reviewing the ruling so that we can advise the city’s mayor and council as to the next steps, which could include pursuing an appeal."
Rankin earlier told Inman News that the code provisions in question "were adopted at a public meeting of the mayor and council, after a public hearing that was noticed as provided by Arizona law."
He also stated, "The regulations in question are not zoning laws. The demolition ordinance regulates only the procedure for obtaining a demolition permit. It does not prohibit demolition, it does not regulate any use of the property before or after the demolition, and it does not affect any division of the land or any interest in the land."
And the ordinance does not expand the city’s authority to acquire property by eminent domain, he stated. "Instead, it provides for the documentation of any significant historical data, and could provide the city with the opportunity to attempt to negotiate a consensual purchase of a property, but it does not give the city any authority to take a property against the owner’s will."
Colin Zimmerman, a spokesman for the Tucson Association of Realtors, stated in an announcement this week, "We are very excited about this ruling and feel this is a great win for our community."
The judge found that the city’s building ordinance "has nothing to do with public safety and therefore was not a reasonable exercise of the city’s police power." Also, the ruling states that by creating a delay in the issuance of demolition permits, the city ordinance "regulates the use of the land or structures" and functions as a zoning ordinance that required the city to follow specific public notice and hearing requirements.
As a result, the judge ruled that the historic review requirement was void and that the city must accept the application for a demolition permit without the accompanying historic review.
The section of city code in question regulates demolition "of all or part of any building that is more than 45 years old and located within the city’s ‘Historic Central Core,’ " according to the complaint, which is defined as the city limits as of Oct. 6, 1953.
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