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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JD'S RIVER BOTTOM, LLC, Plaintiff/Appellant,

v.

MARICOPA COUNTY, et al., Defendants/Appellees.

__________________________________

LCR 723-725 SCOTTSDALE LLC, Intervenor/Appellee.

No. 1 CA-CV 22-0240 

Appeal from the Superior Court in Maricopa County

No. CV2020-002438

LC2020-000074-001

The Honorable Tracey Westerhausen, Judge

AFFIRMED

COUNSEL

Wilenchik & Bartness, PC, Phoenix

By Dennis I. Wilenchik, John D. Wilenchik, Ross P. Meyer

Counsel for Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix

By Wayne J. Peck, Sherle R. Flaggman, Joseph Branco, Sean Moore

Counsel for Defendants/Appellees

FILED 5-30-2023
2

Bergin Frakes Smalley & Oberholtzer, PLLC, Phoenix

By Kenneth M. Frakes, Daniel Goldschmidt

Counsel for Intervenor/Appellee

Signature Law Group, PLLC, Prescott

By Henry E. Whitmer

Counsel for Amicus Curiae

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Chief Judge Kent E. Cattani joined.

P A T O N, Judge:

¶1 JD’s River Bottom, LLC (“JD”) appeals the superior court’s 

grant of summary judgment in favor of Maricopa County and the Maricopa 

County Board of Adjustment (“Board”) and the denial of JD’s summary 

judgment motion. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 JD is a business entity that seeks to open and operate a 

medical marijuana dispensary in Maricopa County at a site that is in close 

proximity to three protected uses: (1) 61 feet from an adult-oriented 

business, (2) 1,325 feet from a public park, and (3) 137 feet from another 

property that previously received a conditional zoning variance in June 

2018 for a medical marijuana dispensary, owned by LCR 723-725 Scottsdale, 

LLC (“Sunday Goods”). The zoning ordinance for the unincorporated area 

of Maricopa County (“Ordinance”) applicable to the site would ordinarily 

prohibit JD’s proposed dispensary operation due to its proximity to these

protected uses.

¶3 County boards of adjustment may grant variances where a 

party shows that “owing to peculiar conditions, a strict interpretation [of 

the zoning ordinance] would work an unnecessary hardship and if in 

granting the variance the general intent and purposes of the zoning 

ordinance will be preserved.” A.R.S. § 11-816(B)(2).

¶4 JD applied to the Board for relief from the requirements of the 

Ordinance on March 18, 2019. After learning that Board staff intended to 
JD'S RIVER v. MARICOPA/LCR

Decision of the Court

3

recommend denial of the variance request, JD filed a special action in the 

superior court challenging the validity of the Sunday Goods variance,

which the court dismissed for lack of standing because JD had not yet 

presented any variance request to the Board.

¶5 JD then presented its request to the Board. Following a 

hearing and public comment, the Board denied JD’s variance requests. JD 

appealed to the superior court pursuant to Section 11-816(D), challenging 

the denial of the park and adult-business variances. It also filed a separate 

special action arguing that because Sunday Goods had not complied with 

the conditions of its variance JD should not be required to get a dispensary 

distance variance.

¶6 The superior court consolidated the two matters, and both 

parties moved for summary judgment. The court granted summary 

judgment in favor of the Board. It found that the property JD wanted to 

operate its dispensary on did not contain any peculiar conditions justifying 

park and adult-business variances. Specifically, it found that (1) the 

characteristics of the property JD identified as peculiar were not inherent to 

the property (i.e., lot size) and (2) because Sunday Goods requested a 

variance on identical grounds, those characteristics could not be peculiar.

¶7 The superior court also found that the Board had no statutory 

authority to impose conditions on a variance. Consequently, the Sunday 

Goods variance remained in effect whether Sunday Goods complied with 

the conditions set by the Board or not. Therefore, JD still needed a variance 

for the dispensary distance regulation. The court rejected several of the

County’s arguments, including its suggestion that JD needed to be eligible 

to operate a medical marijuana dispensary to apply for a variance.

¶8 JD timely appealed. We have jurisdiction pursuant to Article 

6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes 

(“A.R.S.”) Sections 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶9 We review a grant of summary judgment de novo. Glazer v. 

State, 237 Ariz. 160, 167, ¶ 29 (2015). Summary judgment is appropriate if

the facts produced in support of a claim or defense “have so little probative 

value, given the quantum of evidence required, that reasonable people 

could not agree with the conclusion advanced by the proponent of the claim 

or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). JD raises two 

issues on appeal: (1) whether it presented a genuine dispute of material fact 
JD'S RIVER v. MARICOPA/LCR

Decision of the Court

4

as to peculiar conditions warranting a variance and (2) whether Sunday 

Goods’ variance was valid.

I. The superior court did not err by finding JD failed to 

demonstrate “peculiar conditions” presenting an “unnecessary 

hardship.”

¶10 JD argues that “whether a peculiar condition exists on a 

property” is inherently a factual question that must be decided by a finder 

of fact. It may be true that whether a condition of any kind is present on a 

property is a question of fact. But whether a condition is properly defined 

as “peculiar,” or more generally falls within the scope of Section 11-816(B),

is inherently a legal question because it involves the interpretation and 

application of a statute. See Cypress on Sunland Homeowners Ass’n v. 

Orlandini, 227 Ariz. 288, 296, ¶ 30 (App. 2011).

¶11 JD argues that four existing conditions present a genuine 

dispute of material fact: (1) the property’s “size, location[,] surroundings”

and zoning; (2) the property’s location in the Tempe North Community 

Health Analysis Area (“CHAA”); (3) the property’s location on a “county 

island” distant from “more protected uses;” and (4) its proximity to the 

Sunday Goods variance approval.

¶12 No Arizona cases define “peculiar condition,” but we find the 

out-of-state cases the County cited in its briefing persuasive. A peculiar 

condition is one that arises “from the physical conditions of the land itself 

which distinguish it from other land in the general area.” City and Borough 

of Juneau v. Thibodeau, 595 P.2d 626, 635 (Alaska 1979) (disavowed on other 

grounds by State v. Alex, 646 P.2d 203, 208, n. 4 (Alaska 1982)). To be eligible 

for a variance, a property’s peculiar condition must cause it to “differ[]

substantially and in relevant aspects from other parcels in the zone . . . .” 

Topanga Assn. for a Scenic Cmty. v. Cnty. of Los Angeles, 522 P.2d 12, 22 (Cal. 

1974).

¶13 Each of the purported “peculiar conditions” JD cites would 

swallow the rule that they be peculiar to the property in question. And the 

County’s argument that the property must have completely unique 

conditions is too broad. 

¶14 The location of the property in an unincorporated area on a 

“county island,” its proximity to Sunday Goods, and its location in the 

Tempe North CHAA are all conditions that, more than merely affecting the 

Sunday Goods location, affect all nearby properties. See Thibodeau, 595 P.2d 

at 636 (“[W]here the ordinance equally affects all property in the same 
JD'S RIVER v. MARICOPA/LCR

Decision of the Court

5

zoning classification, relief from [the ordinance] must come from . . . an 

amendment to the zoning code.”). By JD’s own definition, the application 

of these laws cannot be peculiar to JD’s parcel. Because JD points us to 

nothing that distinguishes its property from any other in the set of affected 

properties, we find that it has not established a peculiar condition.

¶15 JD argues that the County is “trying to have it both ways” 

because Sunday Goods was granted a Section 11-816(B) variance but JD was 

not. JD, however, is not appealing (in this respect) the Sunday Goods 

variance, so the question of whether Sunday Goods met the “peculiar 

conditions” requirement under the statute is not before us. We find no 

error.

¶16 Even if we were to assume a peculiar condition exists on JD’s

property, we agree with the County that JD failed to show unnecessary 

hardship, which exists when “the land in question cannot yield [a] 

reasonable return” absent the variance. See Santa Cruz Cnty. v. S. Ariz. 

Christian Assembly, 22 Ariz.App. 507, 509 (1974); see also Ivancovich v. City of 

Tucson Bd. of Adj., 22 Ariz.App. 530, 538 (1974). While perhaps more 

difficult to use this particular zoned property without a variance, JD 

concedes in its opening brief that the property can be used for other 

industrial purposes. This concession on its own puts the property outside 

the scope of Section 11-816(B). The superior court did not err.

II. Special action relief was not available for JD’s challenge of the 

Sunday Goods variance in superior court.

¶17 JD separately argues that because Sunday Goods has not 

complied with the conditions attached to its variance, the variance has 

lapsed, and eliminated a variance that is required for Sunday Goods to 

operate a dispensary. The superior court considered these arguments in 

JD’s special action petition and rejected them. 

¶18 But JD failed to exercise its statutory right to appeal the 

Board’s decision to grant Sunday Goods’ variance or, more to the point, the 

Board’s failure to revoke it after conditions were not met—a remedy that 

was otherwise “plain, speedy, and adequate.” Ariz. R.P. Spec. Act. 1(a). 

Section 11-816(D) provides that an appeal from a decision of the Board may 

be filed in the superior court within 30 days of the decision by “any person 

aggrieved in any manner.” And “when a statute creates a right and also 

provides a complete and valid remedy for the right created, the remedy 

thereby given is exclusive.” Valley Drive-In Theatre Corp. v. Super. Ct., 79 

Ariz. 396, 400 (1955). Because JD contends it was aggrieved by the Sunday 
JD'S RIVER v. MARICOPA/LCR

Decision of the Court

6

Goods variance, it was required to pursue repeal of the variance, and then 

appeal any denial, to challenge the Board’s decision. It cannot challenge 

the existence of the variance in an unrelated administrative appeal

concerning its own variance; the validity of the Sunday Goods variance was 

not before the Board. See Land Dep’t v. O’Toole, 154 Ariz. 43, 47 (App. 1987) 

(noting that declaratory relief is generally unavailable where “another 

equally or more appropriate remedy is available.”). Special action 

jurisdiction to the superior court is not available to circumvent a form of 

statutory relief of which JD did not avail itself. Consequently, the superior 

court lacked jurisdiction to consider the merits of that aspect of JD’s claim,

as do we. 

III. We deny JD’s request for fees and sanctions.

¶19 JD requests attorneys’ fees and costs pursuant to Sections 12-

341, 12-348, and 12-1840. JD also requests sanctions against Appellees for 

defending a frivolous position pursuant to Arizona Rule of Appellate 

Procedure 25. We deny these requests.

CONCLUSION

¶20 We affirm.