Button v. City of Tucson
November 2008

On October 28, 2008, the Pima County Superior Court held invalid a City of Tucson amendment to its building code which limits a property owner’s ability to demolish a building in the City’s “Historic Central Core”. Under the voided provision, an owner was required to perform an exhaustive study of the building’s possible historic value. If, in the City’s opinion, the building was historically significant, demolition could be delayed for up to nine months, allowing the City to explore preservation options.

John Hinderaker and Colleen Whealdon-Haught of Lewis and Roca represented the plaintiff, a residential property owner in the Historic Central Core who sought a demolition permit. The plaintiff argued that the City had no authority to enforce what were actually historic zoning regulations under the City’s building code, because the regulations had not been adopted with the notice and hearing that state law mandates for zoning measures. The plaintiff relied on Arizona court decisions which prevent local governments from circumventing state-mandated procedures for the adoption of zoning regulations by labeling them as something else.

If the actions of the City challenged in this lawsuit were so obviously illegal, why did the City risk having this provision of its building code declared invalid? The answer lies in the 2006 adoption of Proposition 207 (codified as Arizona Revised Statues, Section 12-1131, et seq.). Among other things, Prop. 207 gives landowners the ability to seek damages from local governments if new land use regulations reduce the value of an owner’s land. An exception to the compensation for regulation afforded by Prop. 207 is a regulation aimed at traditional health and safety objectives, like building, fire and health codes.

Relying on that exception, the City placed its Historic Central Core demolition provisions in the local amendments for the 2006 International Building Code, a massive, highly technical document. Unlike the creation of a new historic district under the City’s Historic Preservation Zone, which requires early and continuous involvement of affected property owners, notice and public hearings, the Historic Central Core provision in the 2006 IBC amendment had a single hearing for which the City provided three days newspaper notice.

The City has not said if it will appeal the Court’s decision. If the City appeals and the court’s ruling is upheld, the result will help protect property interests against similar “stealth” enactments intended to avoid Prop. 207.

This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice.  Readers should seek professional legal advice on matters involving these issues.

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