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March 27, 2026 Get Citation Alerts Download PDF Add Note

LYONS v. PHOENIX

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-CV 25-0299

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.3K)

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Combined Opinion

                        by Andrew M. Jacobs

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CHRISTINE LYONS, et al., Plaintiffs/Appellees,

v.

CITY OF PHOENIX, et al., Defendants/Appellees,

v.

CFS RETAIL, LLC, et al., Real Parties in Interest/Appellants.

No. 1 CA-CV 25-0299
FILED 03-27-2026

Appeal from the Superior Court in Maricopa County
No. CV 2023-013529
The Honorable John L. Blanchard, Judge

REVERSED

COUNSEL

Richards & Moskowitz, PLC, Phoenix
By William A. Richards
Counsel for Plaintiffs/Appellees

Phoenix City Attorney’s Office, Phoenix
By Cris A. Meyer
Counsel for Defendants/Appellees
Gammage & Burnham, PLC, Phoenix
By Cameron C. Artigue, Jacqueline E. Marzocca, and Sean Krieg
Counsel for Real Parties in Interest/Appellants

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.

J A C O B S, Judge:

¶1 CFS Retail, LLC (“Copperstate”) appeals the superior court’s
ruling reversing the Board of Adjustment’s (“Board”) grant to it of a use
permit and variance to operate a marijuana dispensary. The Board’s grant
of the use permit and variance in turn rested on the Zoning Administrator’s
prior informal interpretation of Phoenix Zoning Ordinance § 623(D)(124)
(the “Interpretation”). Copperstate argues that plaintiffs Christine Lyons
and Heritage Heights Block Watch (“Homeowners”) lack standing to
challenge the Interpretation and, regardless of standing, the Board’s
decision should be upheld on its merits. Homeowners argue they have
standing and that the Board’s decision — which relied on the Interpretation
— exceeded its authority. We agree with Copperstate because none of the
plaintiffs are “persons aggrieved” under A.R.S. § 9-462.06(K). Accordingly,
we reverse and reinstate the Board’s decision.

FACTS AND PROCEDURAL HISTORY

A. Copperstate Seeks to Open a New Dispensary Location and
Obtains Pre-Clearance from the City of Phoenix.

¶2 Copperstate sought to open a marijuana dispensary near
32nd Street and Shea Boulevard in Phoenix. The proposed site is in an
intermediate commercial zoning district, in which marijuana dispensaries
are permitted uses. Phoenix Zoning Ordinance § 623(D)(124). Marijuana
dispensaries must comply with certain zoning regulations to operate
legally. See id. Relevant here, marijuana dispensaries must obtain a use
permit and be located more than (a) 500 feet from certain residentially
zoned districts and (b) 1,320 feet from a place of worship. Phoenix Zoning
Ordinance § 623(D)(124)(a), (f), (h).

¶3 As a preliminary step, Copperstate sought advice about any
zoning limitations from the City of Phoenix (the “City”). See Phoenix

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Zoning Ordinance § 307(A)(4). In January 2023, the City sent Copperstate
a letter confirming it was eligible to apply for a use permit to operate its
marijuana dispensary at the proposed location. The letter advised
Copperstate it would also have to apply for a variance because it is within
500 feet of residential zoning, but that so long as “the use permit and/or
variances are approved and the site complies with all other requirements,
then the dispensary facility would be permitted to operate.” There is no
actual residence within 500 feet of the proposed dispensary location. The
residentially-zoned area requiring a variance is a historic anomaly in the
middle of Route 51 that was never rezoned after the freeway’s construction.

B. Copperstate Applies for a Use Permit and Variance, the City
Holds Public Hearings on Copperstate’s Application, and
the City Grants Copperstate’s Application.

¶4 Copperstate applied for a use permit and variance in
February 2023. Some who spoke at the initial public hearing in March 2023
opposed Copperstate’s application. Those who spoke, including Christine
Lyons, cited generalized concerns, including delayed notice of the hearing,
safety, the location’s proximity to minors because of schools that are nearby
(but located outside of the quarter mile boundary required by the zoning
ordinances), and decreased property values. The hearing was continued to
May 2023 to allow for further public input. Copperstate was unsuccessful
in its efforts to assuage opponents’ concerns before the May hearing.

¶5 At the May 2023 hearing, members of the public testified for
and against Copperstate’s application. For the first time, one speaker raised
the issue that a church, known as Victory Chapel, was less than 1,320 feet
away from the proposed dispensary location. Counsel for Copperstate
explained that the church had not obtained a certificate of occupancy, and
that given the Interpretation, facilities such as Copperstate “do[] not need
to comply with the applicable separation requirement from a protected use
if the protected use is not permitted pursuant to a validly issued Certificate
of Occupancy.” Thus adhering to the Interpretation, the hearing officer
approved Copperstate’s application for a use permit and variance.

C. On Appeal, the Board of Adjustment Affirms the Hearing
Officer’s Decision to Grant Copperstate’s Application.

¶6 Homeowners appealed the hearing officer’s decision to the
Board. Homeowners’ appeal did not specifically challenge the validity of
the Interpretation, but rather restated their previously raised concerns
about proximity to schools, their neighborhood, and the church. The pastor

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Decision of the Court

of the church submitted a letter expressing concerns about teen marijuana
use but did not attend or otherwise participate in the proceedings.

¶7 The Board held a hearing on August 3, 2023 addressing
Homeowners’ appeal. The zoning officials explained that “[t]he church did
not have a certificate of occupancy or any permits associated with the
establishment of that use there,” and accordingly, for the purposes of
separation requirements under the zoning ordinances, the church was “not
a legally established use.” The Board discussed the validity of the
Interpretation at length, ultimately reasoning the City needed a way to
confirm established uses when making zoning decisions, and that “through
these interpretations, over the years, the [C]ity has drawn that line as a
certificate of occupancy is required,” and recognized that “businesses rely
on that interpretation.” The Board also confirmed that the Interpretation
applies to all established uses, not just churches, explaining the
Interpretation “does not have anything to do with the gospel and the
church . . . This has to do with the laws of the City of Phoenix.”

¶8 The Board upheld the hearing officer’s decision and denied
the Homeowners’ appeal.

D. The Superior Court Reverses the Board’s Decision.

¶9 Homeowners filed a statutory special action in the superior
court challenging the Board’s decision under A.R.S. § 9-462.06(K). The
complaint alleged “Ms. Lyons and her property will be uniquely and
negatively impacted by the Board’s approval of a use permit and variance”
to Copperstate because of “increase[d] traffic and traffic dangers,”
“reduce[d] parking and accessibility to existing businesses,” and “adverse
implications for personal and property safety within the Block Watch
boundaries.” The complaint went on to describe more generalized harms,
including Homeowners’ “rights and interests regarding enforcement of all
relevant provisions of the Zoning Ordinance of the City of Phoenix for and
against all other properties and property owners and occupiers in their
vicinity or neighborhood.” Specifically, Homeowners claimed they had an
interest in the enforcement of Phoenix Zoning Ordinance § 623(D)(124)(h),
which requires a dispensary to be more than 1,320 feet away from a place
of worship.

¶10 The court rejected Copperstate’s argument that Homeowners
lacked standing and instead found Homeowners were “aggrieved persons”
because they “are active in protecting property values and interests.” The
court further concluded the Board’s grant of Copperstate’s application was

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“arbitrary and capricious and an abuse of discretion” because it did not
apply Phoenix Zoning Ordinance § 623(D). The court thus reversed the
Board’s grant of Copperstate’s application and granted Homeowners their
costs under A.R.S. § 12-341.

¶11 Copperstate timely appealed. We have jurisdiction. Ariz.
Const. art. 6, § 9; A.R.S. §§ 12-2101(A)(1), -120.21(A)(1).

DISCUSSION

I. Homeowners Are Not “Person[s] Aggrieved” Under A.R.S. § 9-
462.06(K).

¶12 “Whether a party has standing is a question of law we review
de novo.” Pawn 1st, L.L.C. v. City of Phoenix, 231 Ariz. 309, 311 ¶ 11 (App.
2013).

¶13 Our inquiry into Homeowners’ standing begins with
“whether the statute in question authorizes review at the behest of the
plaintiff.” Scenic Ariz. v. City of Phx. Bd. of Adjustment, 228 Ariz. 419, 422 ¶ 7
(App. 2011) (quoting Sierra Club v. Morton, 405 U.S. 727, 732 (1972)). While
statutes authorizing judicial review of an administrative decision are
“construed liberally to promote the ends of justice,” id. (quoting City of
Scottsdale v. McDowell Mountain Irr. & Drainage Dist., 107 Ariz. 117, 121
(1971)), that liberal construction is limited by “whether the interest sought
to be protected by the complainant is arguably within the zone of interests
to be protected or regulated by the statute,” id. at 423 ¶ 11 (quoting
McDowell Mountain, 107 Ariz. at 121).

¶14 Scenic Arizona shows why Homeowners lack standing. There,
we found a proposed billboard placement interfered with plaintiffs’
interests protected by the Arizona Highway Beautification Act (“AHBA”),
which “was adopted to promote ‘the reasonable, orderly, and effective
display of outdoor advertising,’ while also promoting ‘the safety and
recreational value of public travel and [preserving] natural beauty.’” Id. at
424 ¶ 11. But “[o]rdinary zoning ordinances do not create the same special
interest.” Arcadia Osborn Neighborhood v. Clear Channel Outdoor, LLC, 256
Ariz. 88, 94 ¶ 18 (App. 2023). Unlike the AHBA, the purpose of the zoning
ordinance Homeowners seek to enforce is “to provide for a wide range of
types of commercial activity within the district.” Phoenix Zoning
Ordinance § 623(A). The interests Homeowners seek to vindicate are not
within the zone of interests this ordinance is designed to protect and
regulate.

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LYONS, et al. v. PHOENIX, et al.
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¶15 As we recognized in Arcadia Osborn, “Scenic Arizona does not
provide standing for [plaintiffs] to challenge an ordinary zoning decision
absent allegations of a particularized harm, injury, or damages distinct from
that suffered by the public.” 256 Ariz. at 94 ¶ 18. The damages
Homeowners allege, including infringement upon their “rights and
interests regarding enforcement of all relevant provisions of the Zoning
Ordinance of the City of Phoenix for and against all other properties and
property owners and occupiers in their vicinity or neighborhood,” are
precisely what Arcadia Osborn said isn’t enough for standing — they are not
particularized or distinct from those suffered by the general public. See id.

¶16 Homeowners’ proximity to the proposed dispensary site
doesn’t make particularized any interest they claim in the enforcement of
the zoning ordinance. Id. at ¶ 12 (Even where “a plaintiff has suffered the
same kind of harm or interference as the general public but to a greater
extent or degree,” this does not rise to the level of “particularized harm
causing palpable injuries” and accordingly is “insufficient to confer
standing.”); see also Scenic Arizona, 228 Ariz. at 425 ¶ 15 (reaffirming “the
well-established principle that when challenging a governing board’s
zoning decision, a plaintiff must allege particularized injury to his or her
own property”).

¶17 And to the extent Homeowners suggest the alleged injury to
their property is different from or more than that suffered by the general
public because they live between a 0.8- and 1.4-mile drive from the
dispensary site, that argument fails. They live much farther than would
tend to support claims of particularized, personal harm from a zoning
decision. See, e.g., Blanchard v. Show Low Plan. & Zoning Comm’n, 196 Ariz.
114, 118 ¶¶ 21-24 (App. 1999) (finding 750 feet from relevant property close
enough to show “special damages that will be more substantial than those
suffered by the community at large,” but 1,875 feet, given “general
allegations of harm” such as “increased traffic and noise,” too far to support
standing). Homeowners’ residences are too far from the dispensary to
support a finding that their alleged injuries relating to traffic dangers,
parking, accessibility to existing businesses, and decreased personal safety
within the Block Watch boundaries are “special damages that will be more
substantial than those suffered by the community at large.” Id.

¶18 Significantly, the superior court’s reasoning rests entirely on
the church being less than 1,320 feet from the dispensary site, which
underscores the lack of particular, personal injury to Homeowners here. Its
ruling granting relief to Homeowners lacks reference to, or reliance on, the
legal basis of Homeowners’ claimed injury other than their generalized

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LYONS, et al. v. PHOENIX, et al.
Decision of the Court

interest in enforcing zoning ordinances. For the reasons we have explained,
Homeowners’ choice to be “active in protecting property values and
interests” does not make them “person[s] aggrieved” under A.R.S. § 9-
426.06(K). They thus lack standing to challenge the Board’s decision. While
there are also potential infirmities in the superior court’s analysis of the
merits, given our decision concerning standing, we do not address them.

II. We Decline to Award Copperstate’s Attorneys Fees Under the
Private Attorney General Doctrine.

¶19 “To receive an award of attorneys’ fees under the private
attorney general doctrine, the prevailing party must ‘vindicate[ ] a right that
(1) benefits a large number of people, (2) requires private enforcement, and
(3) is of societal importance.’” Lane v. City of Scottsdale, 258 Ariz. 460, 469
¶ 30 (App. 2024) (quoting Ansley v. Banner Health Network, 248 Ariz. 143, 153
¶ 39 (2020)).

¶20 While we appreciate the effect of Copperstate’s efforts in
“vindicat[ing] the authority of Arizona municipalities to clarify and fill
gaps in their zoning ordinances via zoning interpretations,” its efforts here
serve primarily private rather than public purposes and thus do not justify
an award of attorneys’ fees under the Private Attorney General Doctrine.
See Chavarria v. State Farm. Mut. Auto. Ins. Co., 165 Ariz. 334, 337-38 (App.
1990) (declining to award fees under the Private Attorney General Doctrine
where plaintiff “pressed her claim throughout this case in the hope of
recovering a large award of damages for herself, not in the hope of directing
substantial benefits, financial or otherwise, to the general public”).

CONCLUSION

¶21 We reverse the superior court’s decision and reinstate the
Board’s decision affirming the grant of a use permit and variance to
Copperstate. We reverse the superior court’s grant of costs to Homeowners
under A.R.S. § 12-341. We grant Copperstate its costs as the prevailing
party in this appeal, subject to its compliance with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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