A recent article in the Arizona Daily Star discussed and highlighted an increasingly controversial land use issue: what happens when the suburbs run into rural land uses, namely small horse ranches. Interestingly, I represent one of the landowners in the article that is facing the opposite situation – what happens when a horse owner alters a property for horse uses in a residentially zoned property? The issues my clients are facing are slightly different that the encroachment cases, which have an interesting legal history in Arizona, and are discussed below.
Seeking a place to ride their horses and enjoy the relative quiet of a more rural existence, historically, horse owners located well outside Tucson’s city limits. However, the increasing pressures of suburban sprawl have resulted in some contentious disputes between the once rural dwellers and their new suburban neighbors.
Obviously, many horse owners never had to concern themselves with their neighbors either because their neighbors were located some distance away or shared a similar lifestyle. Now, the encroaching neighbors are none too excited at the prospect of horse corrals and the potential for manure and flies.
A classic Arizona land use case, Spur Industries, Inc. v. Del E. Webb Development Co, 108 Ariz. 178 (1972), dealt with the issue of what happens when suburban development runs into a prior existing use. In Spur, an action was brought by Del Webb to enjoin Spur Industries’ cattle feeding operation. Spur Industries’ predecessor began operating the cattle ranch about 15 miles outside of Phoenix in 1956. In 1959, Del Webb began the construction of the community now known as Sun City. While Del Webb was not initially concerned about the odors from the cattle operation, Del Webb later had trouble selling lots near the southern edge of the feed lot.
Del Webb’s filed a lawsuit against Spur Industries, complaining that the feeding operation was a public nuisance because of the flies and the odor which were drifting or being blown by the prevailing south to north wind over the southern portion of Sun City. Del Webb’s suit to enjoin the alleged nuisance was an equity claim, which allows the courts to use their broad powers to reach an fair and reasonable solution. Indeed, the courts have long recognized a special responsibility to the public when acting as a court of equity:
This case dealt with what is known as "coming to the nuisance." The courts have held that the residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby. In other words, a party cannot justly call upon the law to make that place suitable for his residence which was not so when he selected it.
The court described the case as an example where a business established at a place remote from population is gradually surrounded and becomes part of a populous center, so that a business which formerly was not an interference with the rights of others has become so by the encroachment of the population.
The court found that Spur Industries was required to move, not because of any wrongdoing on the part of Spur Industries, but because of a proper and legitimate regard of the courts for the rights and interests of the public. However, the court went on to say that Del Webb is not blameless in the matter, because it brought people to the nuisance to the foreseeable detriment of Spur Industries, and Del Webb must indemnify Spur Industries for a reasonable amount of the cost of moving or shutting down.
The issues addressed in Spur are alive and well in the context of the Arizona Daily Star article. How the courts choose to deal with the inevitable clash between competing land uses remains to be seen. However, it is clear that these issues will remain contentious going forward.