A frequent vibe in cases where a member of the public asks a court to compel a local government to do something about an undesired land use (i.e., "the city should stop my neighbor from illegally renting their property," or "the police should remove the pop-up unlicensed food stand on the sidewalk in front of my restaurant") is that zoning enforcement is often viewed by courts as a discretionary municipal function or a question about allocation of enforcement resources -- and therefore the judiciary takes a hands-off approach.
That vibe, however, did not carry the day when the Arizona Court of Appeals tackled Brown v. City of Phoenix, No. CV23-0273 (Aug. 27, 2024). In that case, the court upheld a trial court's preliminary injunction ordering Phoenix to do something about the notorious "zone" that the trial court determined was a public nuisance "created or maintained" by the city.
We won't go into great detail here, but recommend you check out the opinion. It offers a pretty decent roadmap for aggrieved plaintiffs to avoid the usual judicial hands-off vibe. One of the key parts of the decision in our view is the conclusion that the city can be held responsible for what other people do:
¶23 To the extent the City presses this argument for property it owns and controls in the Zone, the argument fails. The City properly may be held responsible both for a public nuisance, and to abate a public nuisance, on land it owns and controls. In requiring such abatement, the superior court properly relied on Phoenix v. Johnson, 51 Ariz. 115 (1938). Applying Arizona’s common law, Johnson addressed a sewer system the City built and installed that the City then failed to operate properly, resulting in the emission of foul odors. 51 Ariz. at 120. In addressing resulting claims, the court approved a jury instruction allowing the City to be held liable for failing to manage its sewer system, thereby causing a public nuisance. Id. at 130. That same analysis applies here.¶24 “[O]ne who owns land and fails to act to abate a [public] nuisance originating on that land” can be held liable under a public nuisance theory. Bischofshausen v. Pinal-Gila Ctys. Air Quality Control Dist., 138 Ariz. 109, 112 (App. 1983) (citing RESTATEMENT (SECOND) OF TORTS §§ 824, 838-840 (Am. Law. Inst. 1979)). Though not expressly stated in the permanent injunction, the parties acknowledged at oral argument in this court that the “public property” reference in the permanent injunction is limited to public property the City owns and controls and does not apply to public property owned and controlled by another public entity or property owned by private individuals or entities.
Slip op. at 8-9.
Worth reading.
Brown v. City of Phoenix, No. CV23-0273 (Az. Ct. App. Aug. 27, 2024)
