City of Tempe v. Outdoor Systems, Inc.

• Decision Date: 25 September 2001
• Docket Number: No. 1 CA-CV-00-0242.,1 CA-CV-00-0242.
• Citation: 32 P.3d 31,201 Ariz. 106
• Parties: CITY OF TEMPE, a municipal corporation, Plaintiff, Counterdefendant-Appellant, v. OUTDOOR SYSTEMS, INC., a Delaware corporation; Aaron Rents, Inc., a Georgia corporation; Newport Associates, Inc., a New Mexico corporation, Defendants, Counterclaimants-Appellees.
• Court: Arizona Court of Appeals

32 P.3d 31

201 Ariz. 106

CITY OF TEMPE, a municipal corporation, Plaintiff, Counterdefendant-Appellant, v. OUTDOOR SYSTEMS, INC., a Delaware corporation; Aaron Rents, Inc., a Georgia corporation; Newport Associates, Inc., a New Mexico corporation, Defendants, Counterclaimants-Appellees.

No. 1 CA-CV-00-0242.

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

September 25, 2001.

C. Brad Woodford, Tempe City Attorney by Clifford L. Mattice, Assistant City Attorney, Tempe, for Plaintiff, Counterdefendant-Appellant.

Morrill & Aronson, P.L.C. by Martin A. Aronson and William D. Cleaveland, Phoenix, for Defendant, Counterclaimant-Appellee Outdoor Systems, Inc.

Jaburg & Wilk, P.C. by Stephen C. Rich, Phoenix, for Defendants, Counterclaimants-Appellees Aaron Rents, Inc. and Newport Associates, Inc.

OPINION

GARBARINO, Presiding Judge.

¶ 1 The City of Tempe appeals from the trial court's grant of summary judgment dismissing the City's complaint against Outdoor Systems, Inc. (OSI), Aaron Rents, Inc., and Newport Associates, Inc. (collectively the Defendants). The City's complaint alleged that OSI violated Arizona Revised Statutes (A.R.S.) § 9-462.02 (Supp.2000) and Tempe Zoning Ordinance No. 808 (1986) when it altered a billboard. We affirm in part, vacate in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The facts are not in dispute. In 1983, the City issued a sign permit to erect a billboard. OSI owns the billboard and leases space for it from Aaron Rents, Inc. and Newport Associates, Inc.

¶ 3 In 1986, the City enacted Ordinance No. 808 (the Ordinance), which outlawed nonconforming signs within the city limits of Tempe. OSI's billboard became a non-conforming sign. The Ordinance grandfathered in existing signs and granted owners of non-conforming signs the right to continue using existing signs and to make "reasonable repairs or alterations" to those signs. Tempe, Ariz., Ordinance 808, § 1, pt. II(C)(3)(a) (1986).

¶ 4 In 1998, OSI paid Matt Yob, the owner of a sign maintenance company, $2240 to perform maintenance on the billboard. Mr. Yob performed the following tasks: 1) installed steel shims to correct its slanting posture; 2) painted the support columns; 3) removed other parts for painting and reinstallation; 4) replaced wood stringers with steel stringers; 5) severed two sets of steel cross-braces; 6) reattached parts of the billboard with new bolts; and 7) replaced the catwalks. After the work was completed, the City filed a declaratory action against OSI, Aaron Rents, and Newport Associates contending that OSI's work exceeded the permissible scope of A.R.S. § 9-462.02 and the Ordinance. The City requested that OSI be required to remove the billboard.

¶ 5 OSI, Aaron Rents, and Newport Associates filed separate answers. OSI counterclaimed alleging that the Ordinance violated the United States and Arizona Constitutions and OSI's non-conforming use rights, and that it was unenforceable because it was void for vagueness. OSI also claimed that the City's efforts to enforce the Ordinance had violated OSI's rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution and that OSI was therefore entitled to relief under 42 U.S.C. §§ 1983 (Supp. IV 1998) and 1988 (1994 & Supp. IV 1998).

¶ 6 OSI moved for summary judgment, and the City filed a cross-motion for summary judgment. By stipulation, Aaron Rents and Newport Associates joined OSI's motion for summary judgment. The court granted summary judgment in favor of OSI and dismissed the City's complaint, finding that the Ordinance was unconstitutionally vague as it applied to OSI. The court also granted the Defendants' request for attorneys' fees and expert witness fees. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (1994).

DISCUSSION

I. The Constitutionality of the City of Tempe Ordinance

¶ 7 "[I]ssues involving interpretation of statutes or ordinances are questions of law subject to this court's de novo review." Whiteco Outdoor Adver. v. City of Tucson, 193 Ariz. 314, 316-17, ¶ 7, 972 P.2d 647, 649-50 (App.1998). In addition, the constitutionality of a statute or ordinance becomes an issue only if it is necessary to resolve the issue to decide the case. R.L. Augustine Constr. Co. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368, 370, 936 P.2d 554, 556 (1997); Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, ¶ 11, 990 P.2d 1061, 1064 (App.1999) ("It is sound judicial policy to avoid deciding a case on constitutional grounds if there are nonconstitutional grounds dispositive of the case.").

¶ 8 We conclude that the case can be resolved without addressing the Ordinance's constitutionality because there are other nonconstitutional grounds upon which this matter can be fairly decided. See infra Part II, ¶¶ 9-13. We vacate the trial court's judgment to the extent it found that the Ordinance is unconstitutional.

II. The Conflict Between the Ordinance and A.R.S. § 9-462.02

¶ 9 When an ordinance regulates an area that is also regulated by state statute, the ordinance may parallel the statute or even reach beyond the parameters of the statute so long as the ordinance does not conflict with the statute. State ex rel. Baumert v. Mun. Court of Phoenix, 124 Ariz. 159, 161, 602 P.2d 827, 829 (App.1979). When there is an actual conflict between a statute and an ordinance, and the legislation involves an area of statewide importance, the state statute prevails and the ordinance is invalid. City of Scottsdale v. Scottsdale Associated Merchs. Inc., 120 Ariz. 4, 5, 583 P.2d 891, 892 (1978); City of Tucson v. Consumers for Retail Choice Sponsored by Wal-Mart, 197 Ariz. 600, 602, ¶ 6, 5 P.3d 934, 936 (App.2000). "Zoning regulation is a matter of statewide concern." Scottsdale Associated Merchs.,120 Ariz. at 5,583 P.2d at 892.

¶ 10 In this case, not only does the Ordinance conflict internally, it also conflicts with A.R.S. § 9-462.02. Compare Tempe, Ariz., Ordinance 808, § 1, pt. II(C)(3)(d) (1992) with id., § 1, pt. II(C)(3)(a) and A.R.S. § 9-462.02(A). The controlling state statute regarding non-conforming property provides:

Nothing in an ordinance or regulation authorized by this article shall affect existing property or the right to its continued use for the purpose used at the time the ordinance or regulation takes effect, nor to any reasonable repairs or alterations in buildings or property used for such existing purpose.

A.R.S. § 9-462.02(A) (emphasis added). Tempe's Ordinance also provides that reasonable repairs and alterations may be made to non-conforming property. Tempe, Ariz., Ordinance 808, § 1, pt. II(C)(3)(a). But then the Ordinance in section 1, part II(C)(3)(d) appears to contradict itself and the statute when it states that "[a]ll non-conforming signs may be maintained, but shall not be altered in any way...." Clearly the state statute allows for reasonable alterations. The Ordinance first allows, and then forbids any alteration including, ostensibly, those alterations that are reasonable. The Ordinance's proscription of any alterations conflicts with A.R.S. § 9-462.02(A), which provides that no ordinance "shall affect ... the right [of an owner] to [make] any reasonable repairs or alterations."

¶ 11 Although the Ordinance and the statute conflict, "[w]e will avoid finding an ordinance invalid on the ground of conflict with a state statute `if a reasonable interpretation of the ordinance' will do so." State v. Crisp, 175 Ariz. 281, 284, 855 P.2d 795, 798 (App.1993) (quoting Fendler v. Texaco Oil Co., 17 Ariz.App. 565, 570, 499 P.2d 179, 184 (1972)). In our view, however, section 1, part II(C)(3)(d) of the Ordinance cannot be reasonably interpreted to avoid a conflict. The legislature's intent is clear with respect to the permissible scope of municipal ordinances that purport to govern non-conforming property uses. The message is that no ordinance shall interfere with a nonconforming property owner's right to make reasonable alterations. The Ordinance's blanket prohibition against making any alterations to non-conforming signs cannot be interpreted in harmony with the opposite mandate of the state statute. Because the statute controls over the Ordinance, A.R.S. § 9-462.02 prevails and the conflicting language of the Ordinance is deemed invalid. State v. Prentiss, 163 Ariz. 81, 86-87, 786 P.2d 932, 937 (1989) (striking unconstitutional language in a statute while upholding the remainder of the statute).

¶ 12 We need not invalidate the entire Ordinance if the invalid portion can be severed from the remaining valid portions of the Ordinance. Randolph v. Groscost, 195 Ariz. 423, 426-27, ¶ 13, 989 P.2d 751, 754-55 (1999). Determining whether an invalid portion of an ordinance is severable requires us to first "consider whether that portion of an [ordinance] remaining after we sever the invalid portion is independent of the invalid part and enforceable standing alone." Id. at 427, ¶ 14, 989 P.2d at 754. If the remaining part of the legislation can stand without the invalid language, we will enforce the remaining portion "if the valid and invalid portions are not so intimately connected as to raise the presumption the [City] would not have enacted one without the other, and the invalid portion was not the inducement of the [ordinance]." Id. (quoting State ex rel. Napolitano v. Brown, 194 Ariz. 340, 344, 982 P.2d 815, 819 (1999)).

¶ 13 The offending phrase in section 1, part II(C)(3)(d) of the Ordinance that conflicts with A.R.S. § 9-462.02 can be isolated. Excising the offending words—"altered in any way"—does not render the remainder of that section, or the rest of the Ordinance, unenforceable. It appears that the conflicting language was added as an amendment to the original Ordinance and that it is neither inextricably intertwined with, nor interdependent on, the remaining sections of the Ordinance. It would be illogical to argue that the amendment to the Ordinance induced en...