City of Phoenix v. McCullough
| Decision Date | 10 June 1975 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 536 P.2d 230,24 Ariz.App. 109 |
| Parties | , 80 A.L.R.3d 1071 CITY OF PHOENIX, a Municipal Corporation, Appellant, v. O. K. McCULLOUGH and Mary McCullough, his wife, Appellees. 2340. |
| Court | Arizona Court of Appeals |
This appeal from a summary judgment, in essence denying to the City of Phoenix the right to condemn property for purported airport purposes, raises the following questions:
(1) Does the City of Phoenix have the power to condemn property for use as off-street parking in connection with an airport facility?
(2) Must the City have funds on hand to pay for any property condemned at the time the condemnation action is commenced?
(3) Was the City's contemplated use of the property sought to be condemned so remote and speculative as to negate the 'necessity' for the taking of the property?
The trial court on the condemnees' motion for summary judgment held that the City did possess the power to condemn the property for use as off-street parking in connection with an airport facility; that the City need only have funds to pay for the property condemned at time of judgment and not at the time the action was commenced; but that the City's proposed use of the property in question was so remote and speculative as not to conform to the law in Arizona on eminent domain. It is this last holding which the City of Phoenix appeals. The property owner on the other hand urges that the trial court's granting of summary judgment may be upheld on appeal by answering the first two questions in their favor.
The facts, which are presented in a light most favorable to the appellant, the City of Phoenix, are as follows.
On August 12, 1969, the City Council of the City of Phoenix passed Ordinance No. S--4878 authorizing various city officials to acquire title to two parcels of land 'for the purpose of expanding, improving and developing Sky Harbor Municipal Airport.' One of these parcels consisted of five lots owned by the appellees, O. K. McCullough and Mary McCullough. This ordinance further authorized the acquisition of these parcels by eminent domain. Pursuant to this ordinance, the City on August 28, 1969 instituted this action seeking to condemn the lots owned by the McCulloughs.
In connection with a general plan to expaned Phoenix Sky Harbor Airport, a bond election was held on June 10, 1969, which, among other things authorized airport revenue bonds in the amount of $58,900,000 to pay for the proposed expansion. The United States Supreme Court later held that this bond election was invalid. On August 18, 1970, a new, special election was held and the bond program was again approved.
Approximately two and a half years after the present action was commenced, the City Council passed Ordinance No. S--6292 dealing with the proposed development and expansion of Sky Harbor Airport. This ordinance adopted an 'Airport Master Plan and Development Program' prepared by Quinton-Budlong 'as the general concept and guide for the expansion and development and as the long range plan, for Phoenix Sky Harbor International Airport.' According to this Master Plan, approximately 20% Of the McCullough property would be used between 1984 and 1992 and the remaining 80% Would be used in the year 2015. One of the uses described for this property in the Master Plan is for off-street parking. An affidavit of the Director of the Phoenix Airport Department filed by the City in opposition to the motion for summary judgment stated that the McCullough Properties 'were required at the time this said action was filed to provide for the expansion of the airfreight (sic) facilities and to provide ancillary services necessary thereof.'
The first issue raised in this appeal is whether the City may condemn the McCullough property for off-street parking at all. The McCulloughs contend that the case of City of Phoenix v. Donofrio, 99 Ariz. 130, 407 P.2d 91 (1965) holds that off-street parking is not an authorized eminent domain purpose for the City of Phoenix. What the Donofrio case acutally held was that A.R.S. § 12--1111 (1956) did not specifically authorize the taking of property by eminent domain for off-street parking. 1 Since this was the only statutory authority under which the City was proceeding in Donofrio, the absence of specific authority in that statute defeated the action. The City in the present action was proceeding to condemn the McCullough property under authority of A.R.S. § 2--306 (1974) which provides:
This statute gives the City, separate and apart from the authority granted by § 12--1111, authority to condemn private property for an airport. Further, in our opinion, acquiring of property for off-street parking is a necessary adjunct to the operation of an airport, which of necessity contemplates the arrival and departure of people by some means of transporation to utilize the air transportation.
We are bolstered in this opinion by A.R.S. § 9--522 (1956) which provides in part that:
'. . . (A) municipality may:
A.R.S. § 9--521(4) (1956) defines a 'utility undertaking' as:
'(b) Airport buildings or other airport facilities or buildings or structures to provide off-street parking of motor vehicles, together with all parts thereof and appurtenances thereto.'
While it might be argued that these two statutory provisions only apply to the acquisition of existing facilities, a point which we do not decide, it is apparent that the legislature was cognizant that a necessary adjunct to the acquisition of an airport is the acquisition of off-street parking facilities.
It is argued however, that the Donofrio decision can be construed to hold that if a proposed use of property is not specifically authorized as a proper use for condemnation purposes, the fact that the proposed use may be a necessary adjunct to an authorized use does not grant authority to condemn for the proposed use. However, it should be kept in mind that the Donofrio decision was construing the grant of eminent domain power contained in A.R.S. § 12--1111, which by its terms is a specific grant of power for specific uses, i.e., municipal building. In our opinion, the grant of power under A.R.S. § 2--306 to acquire an 'airport' is a more general conceptual grant. The term 'airport' embrances numerous uses associated with a modern air facility, for example runways, taxi strips, terminals, restaurants and air freight facilities, to name just a few. We do not believe that it could be seriously argued that the right to condemn for an 'airport' would include only the right to condemn land for a runway, but not a terminal building. Likewise, we are of the opinion that the power to condemn for an 'airport' of necessity includes the right to condemn for off-street parking which is an integral part of the use of that airport. See City of Atlanta v. Airways Parking Company, 225 Ga. 173, 167 S.E.2d 145 (1969).
We therefore hold that the City of Phoenix under the statutory authority granted to it to acquire land for airport facilities by eminent domain has the authority to acquire land for off-street parking to be used in connection with that airport facility.
The condemnees argue that since the bond election to generate funds for the airport expansion which preceded the filing of this complaint was subsequently held invalid and that a valid bond election was not held until after the filing of suit, the City did not have monies to pay for the property at time of suit and this somehow defeats the City's action. No citation of authority is given for this proposition.
The statutory scheme for payment by the condemning body of property condemned is contrary to the condemnees' assertion. Thus, A.R.S. § 12--1127(A) (1956) provides in part: 'At any time after judgment is entered . . . When plaintiff has paid into court for defendant or defendants the full amount of the judgment . . ..' Likewise, Subsection (B) of this section provides in part, 'The defendant or defendants who are entitled to the money paid into court upon Any judgment may demand and receive the money at any time thereafter upon an order of the court. . . .' (emphasis supplied) And, finally, A.R.S. § 12--1124 (1956) provides that if after judgment the plaintiff fails to deposit the funds in court, 'the defendant or defendants may have execution as in civil actions, and if the money cannot be collected on execution, the court, upon a showing to that effect, shall set aside and annul the entire proceedings . . ..'
It is therefore clear that it is not the failure to have monies available at the time of instituting the action which will defeat the proceedings, but the failure to pay after judgment is rendered which will 'annul the entire proceedings.' We so hold.
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