A law passed by the City Council last year to prevent or delay the demolition of older homes near the University of Arizona has been ruled illegal.
Pima County Superior Court Judge John F. Kelly said in a ruling last week the ordinance creating new requirements on demolishing a structure that is more than 45 years old and within the city limits in 1953 was not a reasonable exercise of the city's power.
In addition, he said the city was regulating zoning through a demolition ordinance, in violation of state law.
The city was sued by property owner Eric Button, whose demolition permit was delayed by the new rules. The suit was funded by the Tucson Association of Realtors.
City Attorney Mike Rankin said he is disappointed by the ruling, which he said voids all of the demolition code provisions passed in 2007, rather than just applying to Button's property.
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Rankin said he has scheduled a discussion with the council on Nov. 18 to decide whether to appeal or otherwise fight the ruling.
At issue is a revised building code passed by the council on June 12, 2007, which created new requirements for any owner seeking to demolish a structure that is more than 45 years old and was within the city limits in 1953.
The revisions require the applicant to submit a historic survey of every property within 300 feet of the structure being torn down.
The city has 60 days to review the submission, and after that it can either require a 90-day stay so the city can document the historic features of the building, or a 180-day stay so the city can try to preserve the structure by buying it or arranging for the purchase of the property by another party.
Button was told he had to follow the revised rules before he could demolish a house in the Jefferson Park neighborhood and build a larger one there. He then filed suit, asserting the city did not give proper notice to the public and was attempting to enforce zoning through the building code.
The judge agreed, writing that "regulating demolition of buildings in the 'Historic Central Core' had nothing to with public safety and, therefore, was not a reasonable exercise of the city's police power."
He added the new demolition code was a "zoning ordinance" and had to follow notice and hearing requirements for the zoning and not the building code.
Colin Zimmerman, the Tucson Association of Realtors' director of public affairs, said the Realtors were excited but expect the city to appeal.
"It's a good first step . . . to send a message this isn't how we create laws in this city," Zimmerman said. "They had a problem they wanted to deal with and they went the wrong way."
Councilwoman Karin Uhlich, who backed the new ordinance, said Rankin will advise the council on whether to appeal.
"It's obvious our city attorney disagrees with that court opinion," Uhlich said. "Clearly the city felt it was appropriate to handle it under the building code."
The council acted on the best advice of its attorneys, said Councilwoman Nina Trasoff, in order to try and help protect neighborhoods around the UA from having houses torn down and rebuilt with larger structures that serve as housing for college students.
"It's unfortunate," Trasoff said. "Now we need to take a step back and figure out what to do."
