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Honorable HON. ROBERT H. OBERBILLIG
Filed: 5/12/2009    Case Number: CV2007-020537
Plaintiff	Prosecution
THOMAS PRESTON, et al.	PLAINTIFF'S ATTORNEY CLINT BOLICK
v.
Defendant	Defense
HUGH HALLMAN, et al.	CATHERINE M BOWMAN

RULING

The Court held oral argument on the parties’ respective Motions For Summary Judgment on May 11, 2009. The Court issues its ruling below:

Standard of Review:

The use permit was issued on June 27, 2007. One of the legal issues before this Court is when did the permit vest, thereby creating a substantive right subject to a “good cause/public necessity” standard of review. Rivera v. City of Phoenix, 186 Ariz. 600, 602 (App. 1996).

THE COURT FINDS that the Plaintiff prevails on this issue and has established that the permit was legitimately issued on June 27, 2007, and the Plaintiff, by signing a lease before any appeal, did detrimentally rely on the issuance of the permit sufficient to create a vested right. Even the City’s own ordinances and rules reflect that the permit is valid, is not stayed pending appeal, but only that the permit holder, who has the right to proceed and actually use the permit, proceeds “at its own risk.” This language may impact the Plaintiff’s ability to recover damages, but does not change the vested nature of the permit.

THE COURT FURTHER FINDS that the record before the Council does not support the City Council’s decision per a good cause/public necessity standard of review for revoking a validly issued permit.

It is clear, however, that the City actually applied the lesser legal standard of review “any rational basis” in determining the appeal.

IT IS THEREFORE ORDERED that the use permit remains legally valid and the City shall conduct a supplemental de novo appeal and apply the correct legal standard of review to the public hearing and determine whether there is sufficient evidence of good cause and public necessity to grant the Appeal and revoke the validly issued permit.

IT IS FURTHER ORDERED granting the Plaintiff’s Motion For Summary Judgment, on this narrow issue.

THE COURT FURTHER FINDS that the Plaintiff’s First Amendment/Equal Protection arguments fail as a matter of law and this Court will not apply a strict scrutiny standard of review. The City’s Motion For Summary Judgment is granted as to these issues.

As to the City’s immunity from damages issue, the Court declines to rule on that issue at this time.

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