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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HOON KOO, Plaintiff/Appellant,

v.

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

No. 1 CA-CV 23-0316 

Appeal from the Superior Court in Maricopa County

No. CV2022-011214

The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

Timothy A. La Sota, PLC, Phoenix

By Timothy A. La Sota

Counsel for Plaintiff/Appellant

Scottsdale City Attorney’s Office, Scottsdale

By Eric C. Anderson

Counsel for Defendant/Appellee

FILED 2-29-2024
KOO v. SCOTTSDALE, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which 

Presiding Judge Andrew M. Jacobs and Judge David D. Weinzweig joined.

P E R K I N S, Judge:

¶1 Hoon Koo appeals from the superior court’s order dismissing 

his complaint for special action relief. Koo’s complaint challenged the City 

of Scottsdale Board of Adjustment’s (“Board”) decision to deny his request 

for two variances to his property. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Koo owns two adjacent parcels totaling 15,700 square feet in 

Scottsdale zoned R1-35 on which he intends to build a house. A property 

owner may build a house on property zoned R1-35 if that property is at 

least 35,000 square feet. Scottsdale Rev. Code, App’x B, § 4.200.

¶3 The parties do not dispute the relevant history of Koo’s 

property, which began as a portion of a two-acre parcel. The Arizona 

Department of Transportation (“ADOT”) condemned the parcel for 

freeway installation. After construction, ADOT sold a 30,000 square foot 

remnant of the original parcel to a private entity. Scottsdale recognizes the 

undersized remnant was a “legal establishment of [a] non-conforming 

parcel.” But without following Scottsdale’s procedures for the subdivision 

of property, the private entity then subdivided the land into five parcels 

through fee title deeds recorded with Maricopa County.

¶4 A prior owner of Koo’s property sought a variance to make 

the site developable in 2012, which the Board denied. Koo then purchased 

the property in 2016 for $20,000.

¶5 Koo applied to the Scottsdale City Council in 2021 to rezone 

the property to R1-10 so he could build a house. But the City Council denied 

his application. Koo, too, sought a variance from the property’s lot area 

requirement. If the Board granted the area variance, Koo also sought a 

variance from Scottsdale’s rear setback requirement.

¶6 The Board heard testimony from Koo and Scottsdale and 

considered comments from members of the neighborhood before denying 
KOO v. SCOTTSDALE, et al.

Decision of the Court

3

the variance request by a vote of five to one. Koo appealed for special action 

relief to the superior court. The superior court found the Board’s decision 

was not arbitrary and capricious or an abuse of discretion and affirmed the 

Board’s decision to deny Koo’s variance requests. Koo timely appealed to 

this Court, and we have jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 We must determine whether the superior court erred when it 

sustained the Board’s decision. See Ivancovich v. City of Tucson Bd. of 

Adjustment, 22 Ariz. App. 530, 535 (1974). “In a special action to review a 

municipal board of adjustment decision, the [superior] court’s primary 

purpose is to determine whether the board’s decision was arbitrary and 

capricious or an abuse of discretion.” Murphy v. Town of Chino Valley, 163 

Ariz. 571, 574 (App. 1989). We are “bound by the same standard of review 

as the superior court,” id., and we presume the validity of the Board’s 

decision unless it is “contrary to law, is not supported by substantial 

evidence, is arbitrary and capricious or is an abuse of discretion,” A.R.S. § 

12-910(F); Pawn 1st, LLC v. City of Phoenix, 242 Ariz. 547, 551, ¶ 9 (2017).

¶8 Under its Code, Scottsdale may grant a request for a variance 

from zoning restrictions only if all of the following criteria are met: (1) 

special circumstances, such as size, “deprive [the subject] property of 

privileges enjoyed by other property of the same classification in the same 

zoning district”; (2) the variance is “necessary for the preservation of 

privileges and rights enjoyed by other property of the same classification in 

the same zoning district”; (3) the special circumstances were not “selfimposed or created by the property owner”; and (4) the variance will not be 

“materially detrimental to . . . the neighborhood or to the public welfare.” 

Scottsdale Rev. Code, App’x B, § 1.804. The Board did not rule explicitly on 

each criterion, but multiple Board members expressed their belief that any 

special circumstances applicable to the property were self-imposed.

¶9 At the outset, we agree with the Board and the superior court 

that Koo’s property resulted from an unrecognized, illegal subdivision by 

a prior owner of the property. See Scottsdale Rev. Code, § 48 (1972)

(subdivision of real property in Scottsdale must be submitted to the city for 

approval). And throughout the proceedings, Scottsdale noted that it would 

have allowed a house to be built on the 30,000 square foot remnant parcel 

as a legal non-conforming use. Only after the prior owner illegally 

subdivided the remnant parcel did Scottsdale preclude construction of a 

house on the property. 
KOO v. SCOTTSDALE, et al.

Decision of the Court

4

¶10 Koo nonetheless argues the size of his property is a special 

circumstance that was not “self-imposed or created by the property owner.”

Instead, he insists the undersized nature of the parcel is the result of both 

the initial eminent domain action, which reduced the parcel to 30,000 

square feet—5,000 square feet shy of the R1-35 zoning requirements—and 

the subsequent illegal subdivision by the prior owner. Koo also asserts the 

zoning ordinance’s prohibition against self-imposition refers to “nobody 

but [the current property owner]” rather than a prior owner.

¶11 “[L]ocal ordinances require [the Board] to consider special 

circumstances applicable to the property, not the property owner.” Pawn 

1st, 242 Ariz. at 555, ¶ 31. Circumstances are not self-imposed when they 

“arise from applying the zoning ordinance to circumstances or conditions 

beyond the owners’ control.” Id. at 554, ¶ 29. “An owner’s selection of a 

property, even with knowledge that a variance is required for an intended 

use allowed on other similarly zoned properties, does not itself constitute a 

self-imposed special circumstance precluding a variance.” Id. at 555, ¶ 32

(cleaned up). And special circumstances resulting from eminent domain

actions are not self-imposed. Id. at 555, ¶ 31. But “a purchaser of property 

acquires no greater right to a variance than his predecessor.” Id. at 554–55, 

¶¶ 29, 32.

¶12 Any special circumstances applicable to Koo’s property are

not the result of eminent domain. Although the remnant parcel resulting 

from ADOT’s eminent domain action did not meet the minimum lot area 

requirement, the Board received and credited testimony from Scottsdale 

that the remnant parcel would have been treated as a legal non-conforming 

use, absent the illegal subdivision of the parcel. It was not an abuse of 

discretion for the board to credit that testimony, and it is not our role to 

reweigh the evidence. See Murphy, 163 Ariz. at 576 (“[I]n reviewing a 

board’s decision it is not the prerogative of this court . . . to weigh the 

evidence.”). So ADOT’s eminent domain action is irrelevant to whether the 

special circumstances were self-imposed.

¶13 Koo’s property does not meet Scottsdale’s zoning 

requirements because the prior owner illegally subdivided the remnant 

parcel, which was an action within the exclusive control of the property 

owner. See Pawn 1st, 242 Ariz. at 555, ¶ 32. And Koo’s argument that the 

subdivision ordinance refers to only the current property owner is 

unavailing because Koo “acquires no greater right to a variance” than the 

prior owner. Id. Because the prior owner self-imposed the special 

circumstances on the property, and would therefore not have a right to a 

variance, Koo does not have a right to a variance. Scottsdale Rev. Code, 
KOO v. SCOTTSDALE, et al.

Decision of the Court

5

App’x B, § 1.804; see Pawn 1st, at 555, ¶¶ 31–32; 83 Am. Jur. 2d Zoning and 

Planning § 762 (2024) (It is not an abuse of discretion to deny a zoning 

variance when “the board has considered the fact that the practical 

difficulties and hardship complained of were not inherent in the property 

but resulted from subdivision of the property by the owners.”).

¶14 The Board correctly determined that Koo’s property does not 

qualify for a variance under Scottsdale’s zoning ordinance. Scottsdale Rev.

Code, App’x B, § 1.804.

¶15 Because the superior court did not err by affirming the 

Board’s decision based on the prohibition against self-imposition, we do

not address whether the variance was necessary for the preservation of 

privileges or if the variance would have been detrimental to the 

neighborhood. The Board’s decision to deny Koo’s variance requests was 

not contrary to law, arbitrary and capricious, or an abuse of discretion.

A.R.S. § 12-910(F); Pawn 1st, 242 Ariz. at 551, ¶ 9.

CONCLUSION

¶16 We affirm.