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The Hub has won.

A Pima County Superior Court judge on Friday denied the appeal of the Flagstaff Board of Adjustment’s decision to allow construction of a student housing complex, known as The Hub 2.0.

Judge James Marner, who was invited to hear the case due to local judges citing conflicts of interest, ruled that while plaintiff 120 Cottage Place, LLC, had standing to appeal the board’s decision, the appeal was denied on merits of the case.

The main argument in the case, which was also the main argument to the Board of Adjustment, was whether a commercial block type building, like The Hub, is allowed under the parcel’s zoning, which includes a T5 (Transect, or transitional) zone and a T4 N.1-O zone.

Whitney Cunningham, an attorney from Aspey, Watkins and Diesel, referenced a list in the zoning code that details allowable building types, and it does not include commercial block as acceptable in that zone.

However, attorneys from both the city of Flagstaff and Core Campus pointed out that in other areas of the zoning code, commercial block is listed as acceptable in T4.

Senior Assistant City Attorney Christina Rubalcava cited previous case law that requires, in situations of code ambiguity,  the decision to favor the property owner, adding there are already commercial block buildings in that neighborhood.

Cunningham said that by using the chart that does include commercial block as an allowable type in T4 zones, the court would negate the purpose of all of the subzones created in the code, which the table, called “Building Types General,” does not take into account.

The “Building Types General” table only refers to buildings allowed in the six transect zones, without detailing specifics of the subzones, which create 11 total zones that exist in Flagstaff’s zoning code.

Rubalcava said the T4 transect as described in the code clearly allows for a public school or a funeral home to be constructed in a T4 zone, and the only building type that would accommodate those uses is commercial block.

Cunningham also argued that the size of The Hub, a 591-bed apartment complex geared toward college students located on Phoenix Avenue, Mikes Pike and Milton Road, is not compatible with the area based on scale. He said the city staff members who originally approved the building did not conduct the required compatibility analysis.

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However, Rubalcava said city staff took into consideration all elements of compatibility, including size and height, and they permitted the building as is allowed in zoning code, which does not call for a specific “compatibility review.”

At the hearing, Rubalcava showed pictures of what the artist’s rendering of the building was before and after city staff discussed compatibility with Core Campus, the developer of The Hub. She showed that several aspects to account for compatibility, including pitched roofs, color, texture and landscaping, were changed.

“This is what compatibility review gets you,” she said.

Rubalcava said city staff does not have the ability to change the guidelines that are given in the zoning code, such as that the T4 zone allows a building to be 3 and a half stories, even though the surrounding buildings are not that tall. Changing the height and scale of the building would be an arbitrary decision on the part of the planner that would not uphold the code, she said.

Cameron Artigue, an attorney from Gammage and Burnham representing Core Campus, said while his client and Cunningham’s had “skin in the game,” the decision was already made by three other groups who did not: the city planning staff, the city attorney’s office and the Board of Adjustment.

While Marner said he was impressed by the arguments from both sets of attorneys, he said allowing the appeal would require him to “disregard other sections of the code.”

“This zoning code is replete with ambiguities,” he said, but existing case law required ambiguities be decided in favor of the private property owner.

“Private property rights are to be respected and indeed are fundamental to our way of life,” he said.

Marner then said he did not believe the interpretation of the code in the appeal was feasible.

“The court has concluded that (the plaintiff’s) argument would create a standard that was absolutely arbitrary,” he said.

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The reporter can be reached at cvanek@azdailysun.com or 556-2249.

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City Government and Development Reporter

Corina Vanek covers city government, city growth and development for the Arizona Daily Sun.

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