Clear case of spot zoning (commercial business surrounded by residential), Illegal nonconforming use and within 500-feet of a school. Zoning administrator is ignoring my complaint.

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Subject: Zoning Determination Request: This is so obviously Spot Zoning, it's like 2+2=4, the elephant in the room
From: Raquel Baranow (markofthebeastismoney@yahoo.com)
To: dsd_zoning_administration@tucsonaz.gov; russlyn.wells@tucsonaz.gov;
Date: Monday, December 10, 2018 3:36 PM
Please provide instructions for where to mail or electronically transfer the payment.
Exhibits attached below as PDF
Raquel Baranow * 819 E Lee * Tucson AZ 85719 * 882-7769
Regarding Medical Marijuana facility at 1525 N Park, Parcel 12315070B
C-2 Business zone/ MMJ facility in the middle of a residential neighborhood is Spot Zoning and an
Illegal Non-Conforming Use
Chapel Haven is a school within 500-feet of an MMJ facility
The court case French v Zoning Board of Adjustment (see below) is exactly the same situation as this: when
Philadelphia adopted a zoning code they spot zoned an existing garage for storing taxicabs in the middle of
a residential area, instead of giving it a "nonconforming use".
FIRST SET OF INTERROGATORIES
1. Is a 21,991 sq ft C-2 business zone in the middle of a residential neighborhood (average lot size 7,500 sq
ft) spot zoning or comprehensive zoning?
2. If it's "comprehensive" why didn't the City make it a C-1 business zone?
3. How is the zoning of this 21,991 sq ft lot materially different than the zoning in French v. Zoning Bd. of
Adjust., 408 Pa. 479 (Pa. 1962)?
4. Why are there no other C2 business zones (or industrial lots) in the middle of residential neighborhoods?
5. Is a residential school for autistic children a "private school" under Arizona Administrative Code R9-17-
321 and ARS 36-2804.B.1.(b)(ii) (pertaining to location of Medical Marijuana facilities)?
6. Do you agree that there was an auction house at 1523 N Park (the subject property) in 1947, shortly
before Tucson adopted a zoning code and that auction houses are only allowed in C-2 zones?
7. In your professional opinion, why does what appears to be a real estate appraisal by Burke Hansen, Inc.
say, "the subject property is considered to be a legal non-conforming use."
SPOT ZONING
The reason there’s a C-2 lot in the middle of my neighborhood is because when the zoning code was
adopted in 1948 there was an auction house there. Auction houses are only allowed in C-2 because they
attract a lot of traffic at a specific time.

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Tucson Citizen, 29 April 1947 (Google: "Tucson Citizen" auction "1531 N Park")
1949 map shows this is a tiny print shop! 1531 N Park (Balkow Printing)
This is not "comprehensive zoning" but incomprehensible spot zoning!

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The subject property: C2 zoning surrounded by residential on SW corner of Park and
Lee, why was this not made C1?! There is no other C-2 commercial zoning on this map.
Here's another example of C2 zoning in the middle of the neighborhood. How is this
comprehensive zoning?! Surely it is a mistake?! (Tennessee & Liberty) The owner of the
house stores fruit in refrigerated trucks in his back yard.

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Checklist written for Zoning Administrators and members of Boards of Adjustment show
that the subject property is clearly Spot Zoning: Removing Spot Zoning From the Fabric of
Zoning Practice, January 2004
The ugliest street in America is C2 zoning!

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Speedway, "the ugliest street in America," is a C-2 zone, which allows porn shops,
billboards, and pot shops. I challenge you to find C-2 zoning that is NOT adjacent to C-1 or
Industrial or that is adjacent to residential on more than two sides. I'll bet you $100 you
can't find another C-2 zone surrounded by residential!
NONCONFORMING USE
Your document file T01CM01070 (page 15) says the subject property is "legal non-
conforming". If you zoom into the bottom of the document it says "Burke Hansen, Inc.
1988", which is a commercial property appraiser. The buyer or owner of the property
probably paid for this appraisal/ assessment. Where did they get the idea this was non-
conforming?!
When a nonconforming use is bulldozed they aren't allowed to build another nonconforming use
on the site unless it conforms to the following rules:
Uniform Development Code Non-Conforming Use
9.2.1. DISCONTINUANCE OF A NONCONFORMING USE
A nonconforming use may be resumed if the nonconforming use activity has been discontinued
for less than six months.
9.2.4. SUBSTITUTION WITH A USE FROM A DIFFERENT LAND USE CLASS
A nonconforming use may be substituted with a use from a Land Use Class that is different from
the one to which the existing nonconforming use belongs, provided it is approved in accordance
with Section 3.4.3, Zoning Examiner Special Exception Procedure, and provided the use complies
with the following standards before and after the substitute use is in operation:

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A. The substitute use is a use permitted in the most restrictive zoning classification in which the
existing nonconforming use is permitted as of right;
B. The substitute use does not generate additional traffic or noise, have longer hours of
operation, have additional outside lighting, or cause other negative impacts on adjoining properties
greater than those associated with the existing nonconforming use;
The proposed use of this property violates all the rules above: Use has been discontinued for more than six-
months, noise, traffic, hours, negative impacts in neighborhood. The car wash that was recently bulldozed on
the site does not count as a substitute use because it was in violation of these rules too: it was open 24-
hours, made lots of noise (was a formal complaint for machinery noise), traffic exited onto Lee Street. There
is no "Right" for C2 zoning in a residential neighborhood! This is spot zoning!
Traffic did not exit onto Lee, there was no wall or sidewalk blindsiding pedestrians, not as many
parking spots. The car wash that replaced these buildings was an illegal non-conforming use.
Car wash/ parcel vacant, unused since (at least) 01/31/2018. Photo from Permit #T18DV00395
A DANGER TO THE COMMUNITY

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Design shows a future drive-through. There's a wall blindsiding pedestrians, joggers,
skateboarders, children on bicycles on the sidewalk. "Medicated" drivers exiting onto Lee
Street into a residential zone. Extremely dangerous, much more traffic than ever before.
Traffic is going to exit onto Lee, shining headlights into a residential zone. This is very dangerous
for cars and pedestrians on the sidewalk and a huge inconvenience for the neighborhood! There's
a yield sign at Tyndall and Lee. If Marijuana becomes legal there will be a huge increase in traffic
into our residential neighborhood. "Medicated" "patients" of the pot-shop will blindly exit across a
sidewalk onto Lee, a residential neighborhood. Several times cars exiting the former car wash
almost hit me while I ran past exercising or on skateboard.
This MMJ facility does not belong in a residential neighborhood. It is spot zoning, not part of a
comprehensive zoning plan and the increased traffic is dangerous!
What's worse than a C2 commercial zone in your neighborhood?
Having an industrial zone in your neighborhood.
When the City adopted a zoning code in the 1940s there was an auction house at 1525 N Park, it
then became a print shop, a barber shop, pizza/delicatessen, a car wash and now a Medical
Marijuana Distribution facility.

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An auction house is only allowed in a C2 zone so when the zoning code was adopted they
grandfathered the auction house in zoning rather than giving it an nonconforming use in a
residential zone.
C2 and an MMJ facility is NOT COMPATIBLE adjacent to residential zone:
4.7.20. COMMERCIAL ZONE (C-1): This zone provides for low-intensity, commercial and other
uses that are compatible with adjacent residential uses. Residential and select other
agriculture, civic, recreational, and utility uses may also be permitted that provide reasonable
compatibility with adjoining residential uses.
4.7.21. COMMERCIAL ZONE (C-2): This zone provides for general commercial uses that serve
the community and region. Residential and select other agriculture, civic, recreational, and utility
uses may also be permitted that provide reasonable compatibility with adjoining residential uses.
Note how the first sentences of each definition differ: MMJ Facility that "serves the community
and region" is NOT compatible in residential neighborhood!
How does this fit into a "Comprehensive Plan"?! C-2 in residential is incomprehensible, you
won't find it anywhere else in the City of Tucson!
YOU'RE RUINING OUR NEIGHBORHOOD!
PLEASE STOP THIS IMMEDIATELY!
This is a clear case of spot zoning like the court case below
On August 10, 1933, the City of Philadelphia adopted a zoning ordinance and zoning
map. A ten block area of the city, bounded on the south by Pine Street, on the west by 24th
Street, on the north by Spruce Street and on the east by 21st Street, was zoned residential,
that being the then character of the neighborhood, with the exception of six pieces of
property which were zoned A-commercial. Each of these six pieces of property was being
used for a commercial purpose at the time of the enactment of the ordinance. The largest of
these six parcels is near the center of the ten block area and is situated on the northerly side
of Panama Street, between 22nd and 23rd Streets. In August of 1933 and thereafter, the
building involved was used as a garage for the storage of taxicabs.
On February 10, 1961, after application filed by the intervenors, the Zoning Administrator
of the City of Philadelphia granted a permit for use of the premises as an A. and P.
supermarket, a use permissible in an A-commercial district. The Center City Residents
Association, Inc., appealed the administrator's action to the zoning board of adjustment.
While the board had the matter under advisement, the appellants, nearby property owners,
entered an appearance by counsel and *481 requested a rehearing. No rehearing was
granted and the board sustained the action of the administrator, whereupon, appellants
appealed to the court below. The intervenors were granted leave to intervene as defendants
and the court below decided the matter in their favor, affirming the decision of the board and
entering its order dismissing the appeal. It is from this order that the instant appeal is
prosecuted.
Appellants contend that the designation of the aforementioned 6 pieces of property as
separate A-commercial districts in 1933, constituted illegal spot zoning. They argue that
these properties were and are properly nonconforming uses and, as such, cannot be
changed from one nonconforming use to another.Therefore, they urge, when the property

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here in question ceased to be used as a garage, its status as a nonconforming use
terminated and it must now be considered as residential property.
The Philadelphia Zoning Ordinance was enacted under the authority of the First Class City
Zoning Enabling Act of 1929, May 6, P.L. 1551; 53 P.S. § 14752 et seq. Sec. 3 of the said act,
53 P.S. § 14754, requires that zoning regulations be made "in accordance with a
comprehensive plan". Appellants contend that the designation of the subject premises as A-
commercial was not in accordance with a comprehensive plan and, therefore, in violation of
the act.
In Best v. Zoning Board of Adjustment, 393 Pa. 106, 110, 141 A.2d 606 (1958) we said:
"Zoning is the legislative division of a community into areas in each of which only certain
designated uses of land are permitted so that the community may develop in an orderly
manner, in accordance with a comprehensive plan." (Emphasis supplied). We can conceive
situations in which it might be wise to establish a commercial area within a residential area in
order that valuable services might be readily available to the residents, and if properly zoned
that would be legal. Here, however, City Council simply froze the several small existing
commercial uses, without any legal justification and designated them as distinct commercial
districts. Such action constitutes spot zoning and cannot be sustained.
Blanarik Appeal, 375 Pa. 209, 100 A.2d 58 (1953), is strikingly similar to the case at bar. In
that case, the municipality enacted a zoning ordinance and map which created an "R-1"
residential district. Within that district were seven small scattered areas designated as
"commercial". Each of these seven areas contained, prior to the enactment of the ordinance,
one commercial property. One of these properties was owned by Blanarik and was used for a
grocery store. Blanarik applied for permission to enlarge his store, which was a "permitted"
use in a commercial district. His application was rejected by the zoning board but the court of
common pleas reversed, holding that he was entitled to the permit as a matter of right, since
he was in a commercial district. We disagreed with the reason which the lower court gave for
its decision and held (1) that the designation of these seven areas as commercial amounted
to spot zoning and (2) that the lower court should have granted Blanarik's application for a
permit to expand his store as a natural development of his nonconforming use.
This reasoning is directly applicable to the instant case. The property in question must be
treated as containing a nonconforming use and not as an A-commercial parcel. It
follows, therefore, that the court below erred in affirming the decision of the board and
must be reversed.
Order reversed.
See: https://www.courtlistener.com/opinion/1922635/french-v-zoning-bd-of-adjust/
1. Look at the SW corner of Liberty & Tennessee, tiny 7313 sq ft city lot #120084430 zoned C-2
surrounded by residential, similar to the subject property:
a. Why are these two parcels zoned C-2, why not C-1? (C-1 being more compatible with
residential.)
b. Could this be a zoning mistake?
c. Could it be these were B-2A businesses when the zoning code was adopted in 1948 and
they were erroneously or naively assigned commercial zoning?
2. How are these two lots/ situations different than what happened in French v. Zoning Bd. of
Adjust., 408 Pa. 479 (Pa. 1962): In French, the City adopted a zoning code assigning commercial
zoning to several lots surrounded by residential; the Court found that this was non-conforming spot
zoning?

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WITHIN 500-FEET OF A SCHOOL
Google Maps shows this is a school within 500-feet of the pot shop
The Medical Marijuana facility at 1525 N Park is within 500-feet of an accredited private school,
therefore their permit should be revoked.
Here's how the State defines "private school" in the context of a Medical Marijuana dispensary:
Arizona Administrative Code (R9-17-321): A dispensary or a dispensary’s cultivation site shall
be located at least 500 feet from a private school or a public school that existed before the
date the dispensary submitted the initial dispensary registration certificate application.
Rule R9-17-101. says: “Private school” means the same as in A.R.S. § 15-101.
A.R.S. § 15-101.21 says: "Private school" means a nonpublic institution where instruction is
imparted.
Chapel Haven West is a "nonpublic institution where instruction is imparted" and it's within 500-
feet of 1525 N Park.
The IRS defines school thus:
Line 2. Check the box for a school whose primary function is the presentation of formal
instruction, which regularly has a faculty, a curriculum, an enrolled body of students, and a
place where educational activities are regularly conducted. (See also "Private Foundations
Defined" for other types of schools that qualify for IRS non-profit school.
Under this definition, Chapel Haven would qualify as a school but for IRS 990 purposes they
choose to qualify as a non-profit charity.
City of Tucson rules regarding the location of marijuana facilities within 1000-feet of a "public,
private or charter school" conflict with the State's definition, which is more restrictive, thus your
definition is contrary to the law. The State rightfully gives private schools more rights to NOT be

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anywhere near a MMJ facility! Even "art, music, mechanics and karate" would qualify under the
State's definition of "private school".
City of Tucson Fact Sheet says:
11. A medical marijuana dispensary shall be setback a minimum of 1,000 feet from a K-12
public, private or charter school (establishments for teaching such things as art, music,
karate, mechanics, etc. are not classified as “schools” for the purpose of this ordinance) or a
licensed childcare center, measured in a straight and direct horizontal line from the closest
exterior wall of the medical marijuana dispensary to the closest property line of a school or
childcare center.
4. Ask the Court for a declaratory judgement: Is Chapel Haven a school under ARS 36-2804.B.1.
(b)(ii)? The State rightfully grants more rights to private schools than public schools.
The applicant for the MMJ facility did not disclose on their application that is was located
within 500-feet of a private school as defined by State law, therefore their application shall
be revoked:
R9-17-322. Denial or Revocation of a Dispensary Registration Certificate
A. The Department shall deny an application for a dispensary registration certificate or a
renewal if:
1. For an application for a dispensary registration certificate, the physical address of the
building or, if applicable, the physical address of the dispensary’s cultivation site is
within 500 feet of a private school or a public school that existed before the date the
dispensary submitted the initial dispensary registration certificate application;
The Medical Marijuana facility at 1525 N Park is within 500-feet of an Arizona State accredited
private school called Chapel Haven, therefore their permit should be revoked!
Attachments
LeeParkZoning.png (270.87KB)
floorplanparking.png (272.21KB)
chapelhavenmap.jpg (494.50KB)
SpeedwayZoning.png (428.01KB)
FullSizeRender.jpg (96.36KB)
NonConformingUse.png (139.79KB)
LibertyTennesseeZoning.png (130.03KB)
image.png (485.41KB)
Park.Lee1998.2001.jpg (270.15KB)
426847912092018100415462.PDF.png (856.03KB)
819 neighborhood map 1949.jpg (176.01KB)
ExhibitsZoningDetermintion_000009.pdf (13.29MB)