Armory Park Neighborhood Ass'n v. Episcopal Community Services in Arizona

• Decision Date: 29 August 1985
• Docket Number: No. 17980-PR,17980-PR
• Citation: 712 P.2d 914,148 Ariz. 1
• Parties: ARMORY PARK NEIGHBORHOOD ASSOCIATION, a non-profit corporation, Plaintiff/Appellee, v. The EPISCOPAL COMMUNITY SERVICES IN ARIZONA, a corporation, dba St. Martin's Center, Defendant/Appellant. The EPISCOPAL COMMUNITY SERVICES IN ARIZONA, a corporation, dba St. Martin's Center, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; Hon. Harry Gin, a judge thereof; and Armory Park Neighborhood Association, a non- profit corporation, real party in interest, Respondents.
• Court: Arizona Supreme Court

Page 914

712 P.2d 914

148 Ariz. 1

ARMORY PARK NEIGHBORHOOD ASSOCIATION, a non-profit corporation, Plaintiff/Appellee, v. The EPISCOPAL COMMUNITY SERVICES IN ARIZONA, a corporation, dba St. Martin's Center, Defendant/Appellant.

The EPISCOPAL COMMUNITY SERVICES IN ARIZONA, a corporation, dba St. Martin's Center, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; Hon. Harry Gin, a judge thereof; and Armory Park Neighborhood Association, a non- profit corporation, real party in interest, Respondents.

No. 17980-PR.

Supreme Court of Arizona In Banc.

Aug. 29, 1985.

Gonzales & Villarreal by Elizabeth C. Peasley, Tucson, for plaintiff/appellee

Molloy, Jones, Donahue, Trachta & Childers, by Earl F. Daniels III, Tucson, for defendant/appellant.

FELDMAN, Justice.

On December 11, 1982, defendant Episcopal Community Services in Arizona (ECS) opened the St. Martin's Center (Center) in Tucson. The Center's only purpose is to provide one free meal a day to indigent persons. Plaintiff Armory Park Neighborhood Association (APNA) is a non-profit corporation organized for the purpose of "improving, maintaining and insuring the quality of the neighborhood known as Armory Park Historical Residential District." The Center is located on Arizona Avenue, the western boundary of the Armory Park district. On January 10, 1984, APNA filed a complaint in Pima County Superior Court, seeking to enjoin ECS from operating its free food distribution program. The complaint alleged that the Center's activities constituted a public nuisance and that the Armory Park residents had sustained injuries from transient persons attracted to their neighborhood by the Center.

The superior court held a hearing on APNA's application for preliminary injunction on March 6 and 7, 1984. At the commencement of the hearing, the parties stipulated that

... there is no issue concerning any State, County, or Municipal zoning ordinance The residents then testified about the changes the Center had brought to their neighborhood. Before the Center opened, the area had been primarily residential with a few small businesses. When the Center began operating in December 1982, many transients crossed the area daily on their way to and from the Center. Although the Center was only open from 5:00 to 6:00 p.m., patrons lined up well before this hour and often lingered in the neighborhood long after finishing their meal. The Center rented an adjacent fenced lot for a waiting area and organized neighborhood cleaning projects, but the trial judge apparently felt these efforts were inadequate to control the activity stemming from the Center. Transients frequently trespassed onto residents' yards, sometimes urinating, defecating, drinking and littering on the residents' property. A few broke into storage areas and unoccupied homes, and some asked residents for handouts. The number of arrests in the area increased dramatically. Many residents were frightened or annoyed by the transients and altered their lifestyles to avoid them. ¹

or health provision, before the Court. And, the Court may find that defendants are in compliance with the same.

Following the hearing, ECS filed a motion to dismiss the complaint based on three grounds: 1) that compliance with all applicable zoning and health laws constituted a complete defense to a claim of public nuisance; 2) that there had been no allegation or evidence of a violation of a criminal statute or ordinance, which it argues is a prerequisite to a finding of public nuisance; and 3) that APNA lacked standing to bring an action to abate a public nuisance because it had neither pled nor proved any special injury differing in kind and degree from that suffered by the public generally.

Based on the hearing testimony, the trial court granted the preliminary injunction and denied ECS' motion to dismiss. In its order, the court noted that ECS could be enjoined because its activities constituted both a public and a private nuisance. After its motion for reconsideration was denied, ECS filed a special action ² in the court of appeals, and shortly thereafter filed a notice of appeal from the order granting the injunction. The court of appeals consolidated the proceedings and stayed enforcement of the trial court's order pending a final decision.

A divided court of appeals reversed the trial court's order. In the view of the majority, a criminal violation was a prerequisite to a finding of public nuisance; because plaintiff had alleged no criminal violation, the injunction was improperly granted. The majority also concluded that the trial court abused its discretion by finding both a public and a private nuisance when the plaintiff had not alleged a private nuisance. Finally, the court held that compliance with zoning provisions was a complete defense. The court vacated the order for preliminary injunction and remanded the matter to the trial court with directions to grant ECS' motion to dismiss. We have jurisdiction pursuant to Rule 23, Ariz.R.Civ.App.P., 17A A.R.S., A.R.S. § 12-120.24, and Rule 8(b), Ariz.R.P.Sp.Act; 17A A.R.S. We granted review in this case because of the importance of the following questions:

1) When does a voluntary association have standing to bring an action for public nuisance on behalf of its members?

2) May a lawful business be enjoined for acts committed off its premises by clients who are not under its control or direction?

3) Is it necessary to plead and prove a zoning or criminal violation by the defendant, or may a lawful activity be enjoined because the manner in which it is conducted is unreasonable and therefore constitutes a public nuisance?

THE CONCEPT OF "NUISANCE"

Now considered a tort, a public nuisance action originated in criminal law. Early scholars defined public nuisance as "an act or omission 'which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all her Majesty's subjects.' " PROSSER, W. AND W.P. KEETON, HANDBOOK ON THE LAW OF TORTS, § 90, at 643 (5th ed. 1984), quoting Stephen, General View of the Criminal Law in England 105 (1890). The sole remedy was criminal prosecution. PROSSER, supra, § 86, at 618.

Historically, the remedy for a private nuisance was an action "upon the case," as it was an injury consequential to the act done and found its roots in civil law. PEARCE, E. AND D. MESTON, HANDBOOK ON THE LAW RELATING TO NUISANCES 2 (1926). A private nuisance is strictly limited to an interference with a person's interest in the enjoyment of real property. The Restatement defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." RESTATEMENT (SECOND) OF TORTS § 821D. A public nuisance, to the contrary, is not limited to an interference with the use and enjoyment of the plaintiff's land. It encompasses any unreasonable interference with a right common to the general public. RESTATEMENT, supra, § 821B. Accord, PROSSER, supra, § 86, at 618.

We have previously distinguished public and private nuisances. In City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30 (1938), we noted that a nuisance is public when it affects rights of "citizens as a part of the public, while a private nuisance is one which affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public." Id. at 123, 75 P.2d 34. A public nuisance must also affect a considerable number of people. Id. See also Spur Industries v. Del Webb Development Co., 108 Ariz. 178, 494 P.2d 700 (1972). The legislature has adopted a similar requirement for its criminal code, defining a public nuisance as an interference "with the comfortable enjoyment of life or property by an entire community or neighborhood, or by a considerable number of persons ...." A.R.S. § 13-2917. ³

The defendant contends that the trial court erred in finding both public and private nuisances when the plaintiff had not asserted a private nuisance claim. The defendant has read the trial court's minute entry too strictly. While we acknowledge that public and private nuisances implicate different interests, we recognize also that the same facts may support claims of both public and private nuisance. As Dean Prosser explained:

When a public nuisance substantially interferes with the use or enjoyment of the plaintiff's rights in land, it never has been disputed that there is a particular kind of damage, for which the private action will lie. Not only is every plot of land traditionally unique in the eyes of the law, but in the ordinary case the class of landowners in the vicinity of the alleged nuisance will necessarily be a limited one, with an interest obviously different from that of the general public. The interference itself is of course a private nuisance; but is none the less particular damage from a public one, and the action can be maintained upon either basis, or upon both. (Citations omitted.)

Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997, 1018 (1966).

Thus, a nuisance may be simultaneously public and private when a considerable number of people suffer an interference with their use and enjoyment of land. See Spur Industries, 108 Ariz. at 184, 494 P.2d at 706. The torts are not mutually exclusive. Some of plaintiff's members in this case have suffered an injury to the use and enjoyment of their land. Any reference to

both a public and a private nuisance by the trial court was, we believe, merely a recognition of this well-accepted rule and not error. However, both because plaintiff did not seek relief under the theory of private nuisance and because that theory might raise standing issues not addressed by the parties, we believe plaintiff's claim must stand or fall on the public nuisance theory alone.

STANDING TO BRING THE ACTION

1. Do the residents have standing?

Defendant argues that the Association has no standing to sue and that,...