Bonito Partners, LLC v. City of Flagstaff

• Decision Date: 21 February 2012
• Docket Number: No. 1 CA–CV 10–0819.,1 CA–CV 10–0819.
• Parties: BONITO PARTNERS, LLC, an Arizona limited liability company, Plaintiff/Appellant, v. CITY OF FLAGSTAFF, a municipality, Defendant/Appellee.
• Court: Arizona Court of Appeals

229 Ariz. 75

270 P.3d 902

628 Ariz. Adv. Rep. 33

BONITO PARTNERS, LLC, an Arizona limited liability company, Plaintiff/Appellant,

v.CITY OF FLAGSTAFF, a municipality, Defendant/Appellee.

No. 1 CA–CV 10–0819.

Court of Appeals of Arizona, Division 1, Department C.

Feb. 21, 2012.

Gerald W. Nabours, Flagstaff, Attorney for Appellant.

Mangum, Wall, Stoops & Warden, P.L.L.C. By Kenneth H. Brendel, Clyde P. Halstead, Flagstaff, Attorneys for Appellee.

David R. Merkel, Joni L. Hoffman, Phoenix, Attorneys for Amicus Curiae League of Arizona Cities and Towns.

OPINION

HALL, Judge.

¶ 1 Bonito Partners, LLC (Bonito) appeals from the trial court's summary judgment in favor of the City of Flagstaff (the City). Bonito contends that the City's ordinance requiring that owners of property adjoining sidewalks keep them in repair and imposing a lien against the property for the costs of repair if performed by the City is unconstitutional because, among other reasons, it “takes” private property for public use without just compensation in violation of the Fifth Amendment. Finding that the ordinance is a valid exercise of the City's police powers, the trial court rejected Bonito's Takings Clause claim. Even though we agree that the ordinance constitutes a lawful exercise of the City's police powers, such a determination does not resolve the Takings Clause challenge, which is an analytically distinct issue. Therefore, we affirm in part and vacate and remand in part.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The facts relevant to the issues on appeal are undisputed. Bonito owns a parcel of land in Flagstaff that is adjacent to a City sidewalk. At some point, through no fault of Bonito, the sidewalk fell into disrepair. In a letter dated May 18, 2009, the City notified Bonito that, pursuant to City ordinance Section 8–01–001–0003, Bonito was responsible for repairing the sidewalk within ten days. The letter further explained that the City would repair the sidewalk and bill Bonito for the work if Bonito failed to complete the repairs within the designated time period. If Bonito then failed to timely pay the City for the repair work, the City would place a lien on Bonito's property.

¶ 3 On June 25, 2009, Bonito received a second notice from the City stating that Bonito was responsible for the cost of repairing the sidewalk. On June 29, 2009, Bonito responded to the City's second notice, stating: “Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work.”

¶ 4 The City performed the work to repair the sidewalk. On July 23, 2009, the City sent Bonito a letter explaining that it had performed the repairs and included an itemized statement of the repair costs. Bonito failed to pay the City for the repairs and the City recorded a lien on Bonito's property.

¶ 5 On March 23, 2010, Bonito filed a complaint in the trial court, arguing that the City's ordinance requiring private property owners to repair public sidewalks violates the federal and state constitutional prohibitions against the taking of private property for public use without just compensation. In a subsequent amended complaint, Bonito also alleged that the ordinance constitutes an unlawful tax and exceeds the authority permitted by Arizona statute and the City's charter.

¶ 6 Bonito and the City filed cross-motions for summary judgment. After holding oral argument on the motions, the trial court granted summary judgment in favor of the City.

¶ 7 Bonito timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12–2101(B) (2003).

DISCUSSION

¶ 8 Summary judgment shall be granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c). We review de novo the trial court's application of the law. State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App.1999).

¶ 9 On appeal, Bonito contends that the trial court erred by granting summary judgment in favor of the City. Specifically, Bonito argues that the City's ordinance requiring property owners to pay for repairs to public sidewalks (1) violates the federal and state constitutional takings clauses, (2) constitutes an unlawful tax, and (3) exceeds the authority extended to the City by statute and by its charter. We address each of these arguments in turn.

I. Unconstitutional Taking

¶ 10 Bonito asserts that the City's ordinance requiring private property owners to repair public sidewalks violates the Takings Clause of the Fifth Amendment to the United States Constitution: “[N]or shall private property be taken for public use, without just compensation.” ¹ In the trial court and on appeal, both parties frame their arguments in terms of whether the City's ordinance requiring property owners to repair defective sidewalks is a valid exercise of the City's police powers.² In its minute entry ruling dismissing the complaint, the trial court agreed with the City's argument that the ordinance was a valid exercise of that power and therefore was not an unconstitutional taking. As we discuss below, the parties' arguments, and the court's ruling, conflate the analytically separate—albeit interrelated-issues regarding whether the ordinance is valid under the Due Process Clause of the Fourteenth Amendment and, if so, whether it nonetheless violates the Takings Clause.

¶ 11 As clarified by the United States Supreme Court in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), a Takings Clause analysis presupposes a valid exercise of police power. Id. at 543, 125 S.Ct. 2074 (“[T]he Takings Clause presupposes that the government has acted in pursuit of a valid public purpose.”).³ Thus, the question whether the City's ordinance is a valid exercise of police power, which is properly analyzed under the Due Process Clause of the Fourteenth Amendment, is preliminary to the Takings Clause claim. Lingle, 544 U.S. at 539, 125 S.Ct. 2074; see also First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (explaining that the Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”) (emphasis in the original); see also Ranch 57 v. City of Yuma, 152 Ariz. 218, 225, 731 P.2d 113, 120 (App.1986) (“Although a zoning ordinance may be a proper exercise of the police power, it nevertheless may result in an unconstitutional taking of property.”). Accordingly, we need not consider whether the ordinance violates the Fifth Amendment unless we first determine that the ordinance is a valid exercise of the City's police powers.

¶ 12 A municipality “has the right to define nuisances.” Moton v. City of Phoenix, 100 Ariz. 23, 26, 410 P.2d 93, 95 (1966). Using its police powers, “a municipality may abate a nuisance without compensating the owner of the property.” City of Tempe v. Fleming, 168 Ariz. 454, 458, 815 P.2d 1, 5 (App.1991); see also Moton, 100 Ariz. at 27–28, 410 P.2d at 95–96 (“In the absence of a statutory provision for compensation, private property may be destroyed by a municipal corporation without compensation to the owner where the destruction is necessary to protect the public and the municipality is properly exercising the police power.”) (quoting 62 C.J.S. Municipal Corporations § 177). When “the reasonableness of [an] ordinance and its relationship to the police power are fairly debatable ... the court will not substitute its opinion for that of the legislative body.” City of Phoenix v. Fehlner, 90 Ariz. 13, 20, 363 P.2d 607, 612 (1961) (internal quotation omitted). Indeed, “[a]n ordinance will not be found unconstitutional unless it affirmatively appears that the restriction is clearly arbitrary and unreasonable, and has not any substantial relation to the public health, safety, morals, or general welfare.” City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975) (internal quotation omitted). The party objecting to an ordinance carries the burden of demonstrating its unconstitutionality. Fehlner, 90 Ariz. at 18, 363 P.2d at 611.

¶ 13 The City's ordinance Section 8–01–001–0003 provides:

It shall be the duty of the owner or owners of [lots adjoining sidewalks in disrepair] within ten (10) days after the service of [notice from the City] to place the sidewalk or portion of sidewalk in such notice mentioned or described in good condition and repair using therefor material similar in character and dimensions of that with which such sidewalk was originally constructed; provided that such sidewalk shall comply with the provisions and specifications for the laying and constructing of sidewalks as are on file in the Engineering Section of the City.

The lien placed by the City was authorized pursuant to Section 8–01–001–0007:

The cost of such repairs ..., together with all costs and penalties herein provided for,⁴ shall constitute a lien upon the lot or lots fronting or adjoining the said sidewalk so repaired ... in favor of the City.

¶ 14 Bonito does not dispute that the sidewalk adjacent to its property was in disrepair, posed a potential hazard to pedestrians, and would constitute a nuisance if it were maintained on private property. Nor does Bonito dispute that the City has the authority to require a private property owner to remove a nuisance from private property at the owner's expense. See Fleming, 168 Ariz. at 457–58, 815 P.2d at 4–5 (explaining that a municipality may require a property owner to terminate a nuisance on the property, such as trash, debris, or weeds, at the property owner's expense). Instead, Bonito contends that the City is the party responsible for keeping public sidewalks in good repair, not adjacent property owners, and asserts that the ordinance's appropriation of private funds to cure a public...