City of Tucson v. CLEAR CHANNEL OUTDOOR

• Decision Date: 10 February 2005
• Docket Number: No. CV-04-0033-PR.,CV-04-0033-PR.
• Citation: 105 P.3d 1163,209 Ariz. 544
• Parties: CITY OF TUCSON, an Arizona municipal corporation, Plaintiff/Appellant, v. CLEAR CHANNEL OUTDOOR, INC, a Delaware corporation, Defendant/Appellee.
• Court: Arizona Supreme Court

105 P.3d 1163

209 Ariz. 544

CITY OF TUCSON, an Arizona municipal corporation, Plaintiff/Appellant, v. CLEAR CHANNEL OUTDOOR, INC, a Delaware corporation, Defendant/Appellee.

No. CV-04-0033-PR.

Supreme Court of Arizona, En Banc.

February 10, 2005.

Paul G. Ulrich, P.C., by Paul G. Ulrich, Phoenix, and Michael D. House, Former Tucson City Attorney, Michael G. Rankin, Tucson City Attorney, by Frank William Kern, III and Dennis P. McLaughlin, Tucson, Attorneys for Plaintiff/Appellant City of Tucson.

Munger Chadwick, P.L.C., by John F. Munger and Evelyn Patrick Rick, Tucson, Attorneys for Defendant/Appellee Clear Channel Outdoor, Inc.

Arizona Center for Law In the Public Interest by Joy E. Herr-Cardillo, Tucson, Attorney for Amici Curiae, Neighborhood Coalition of Greater Tucson, The Sierra Club, Grand Canyon Chapter, Neighborhood Coalition of Greater Phoenix, N.A.I.L.E.M., and Luz Social Services.

OPINION

HURWITZ, Justice.

¶ 1 This case requires us to determine the effect of Arizona Revised Statutes ("A.R.S.") § 9-462.02(C) (Supp.2004) on numerous zoning enforcement actions filed by the City of Tucson ("the City") against Clear Channel Outdoor, Inc. ("Clear Channel"). We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution, and A.R.S. § 12-120.24 (2003).

I.

¶ 2 This case comes to us as a result of almost twenty years of legal skirmishing between the City and owners of advertising billboards. In 1985, the City adopted an ordinance regulating the size, location, and height of various signs, including billboards. In 1986, Clear Channel's predecessor, Whiteco Metrocom, Inc.,¹ sued the City in federal court, alleging that the ordinance violated Arizona and federal law. The district court found against Whiteco. The Ninth Circuit consolidated Whiteco's appeal with a similar claim filed by Outdoor Systems, Inc., against the City of Mesa. See Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 608-09 (9th Cir.1993)

. The Ninth Circuit then certified a question to this Court, asking whether the Tucson and Mesa codes violated the Urban Environment Management Act, A.R.S. §§ 9-461 and -462 (1990). We held that they did not. Outdoor Systems, Inc. v. City of Mesa, 169 Ariz. 301, 819 P.2d 44 (1991). The Ninth Circuit then upheld Tucson's sign code against all remaining challenges. Outdoor Systems, 997 F.2d at 620.

¶ 3 In 1994, the legislature enacted A.R.S. § 9-462.02 (1994). 1994 Ariz. Sess. Laws, ch. 111, § 1. This statute effectively "grandfathered" existing non-conforming billboards by prohibiting municipalities from requiring their owners to waive the right to continue their use as a precondition for the issuance of a permit or other municipal approvals. A.R.S. § 9-462.02(B). The statute also gave municipalities the authority to condemn non-conforming billboards, A.R.S. § 9-462.02(A), or to pay for relocation, A.R.S. § 9-462.02(B).

¶ 4 Before § 9-462.02 became effective, the City sued Whiteco, seeking the removal of some non-conforming billboards. In City of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, 983 P.2d 759 (App.1999), the court of appeals held that § 9-462.02 applied retroactively to prohibit the City from enforcing its ordinance against some, but not all, of the billboards in question.

¶ 5 In 2000, the legislature enacted A.R.S. § 9-462.02(C), 2000 Ariz. Sess. Laws, ch. 34, which became effective on July 18, 2000. Section 9-462.02(C) provides:

A municipality must issue a citation and file an action involving an outdoor advertising use or structure zoning or sign code violation within two years after discovering the violation. Such an action shall initially be filed with a court having jurisdiction to impose all penalties sought by the action and that jurisdiction is necessary for effective filing. Only the superior court has jurisdiction to order removal, abatement, reconfiguration or relocation of an outdoor advertising use or structure. Notwithstanding any other law, a municipality shall not consider each day that an outdoor advertising use or structure is illegally erected, constructed, reconstructed, altered or maintained as a separate offense unless the violation constitutes an immediate threat to the health and safety of the general public.

¶ 6 On July 17, 2000, one day before the effective date of A.R.S. § 9-462.02(C), the City filed a 122-count complaint in superior court, each count challenging a separate non-conforming Clear Channel billboard. On July 17, 2001, one day less than a year after the effective date of § 9-462.02(C), the City filed a second amended complaint, adding fifty-one counts concerning other billboards. The superior court found that eighty-nine of the 173 counts involved violations that the City had discovered more than two years prior to filing. The superior court dismissed these eighty-nine counts, holding that the new two-year statute of limitations in § 9-462.02(C) barred the claims.²

¶ 7 The court of appeals affirmed. City of Tucson v. Clear Channel Outdoor, Inc., 206 Ariz. 335, 78 P.3d 1056 (App.2003). Relying on A.R.S. § 12-505(B) (2003), the court held that § 9-462.02(C) applied retroactively and that the new two-year limitations period ran from the time the City first discovered the zoning violations. Id. at 338 ¶ 8, 78 P.3d at 1059.

¶ 8 We granted the City's petition for review to address the retroactivity issues in light of A.R.S. § 12-505, which governs the effect of laws changing statutes of limitations.³ Because this case involves a matter of statutory interpretation, we apply a de novo standard of review. Canon School Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994).

II.

¶ 9 The court of appeals found no constitutional infirmity in applying A.R.S. § 9-462.02(C) retroactively to bar the City's existing enforcement claims. Clear Channel, 206 Ariz. at 337-38 ¶ 7, 78 P.3d at 1058-59. The court relied on its prior opinion in Whiteco, which held that a municipality's power to zone and to enforce its zoning laws is a purely statutory creation, and "[e]very right or remedy created solely by a modified statute disappears or falls with the modified statute unless carried to final judgment before the repeal or modification." 194 Ariz. at 394 ¶¶ 9, 12, 983 P.2d at 763 (citations omitted). Neither party challenges that ruling before this Court. We thus start from the premise that the legislature could have enacted a statute stripping all enforcement power from the City with respect to violations of the sign code occurring before the effective date of the statute. It necessarily follows that the legislature could have barred enforcement actions for violations discovered more than two years before the date of filing suit.

¶ 10 But, while there is no dispute about the legislature's constitutional power to enact a statute barring enforcement actions filed before the statute's effective date, the parties disagree vehemently about whether § 9-462.02(C) is in fact such a statute. The statute is silent on the issue of retroactivity. We therefore begin with general principles concerning retroactivity of statutory enactments.

A.

¶ 11 "No statute is retroactive unless expressly declared therein." A.R.S. § 1-244 (2002). However,

[t]his court has previously created an exception to the general rule requiring express language of retroactivity. Enactments that are procedural only, and do not alter or affect earlier established substantive rights may be applied retroactively. Even if a statute does not expressly provide for retroactivity, it may still be applied if merely procedural because litigants have no vested right in a given mode of procedure.

Aranda v. Indus. Comm'n, 198 Ariz. 467, 470 ¶ 11, 11 P.3d 1006, 1009 (2000). Thus, "statutory changes in procedures or remedies may be applied to proceedings already pending except where the statute effects or impairs vested rights." Wilco Aviation v. Garfield, 123 Ariz. 360, 362, 599 P.2d 813, 815 (App.1979).⁴ Arizona courts have traditionally viewed statutes of limitations as procedural for retroactivity purposes. See, e.g., Harrelson v. Indus. Comm'n, 144 Ariz. 369, 372, 697 P.2d 1119, 1123 (App.1984)

.

¶ 12 Our inquiry today, however, is not guided solely by the judge-made exceptions to the general statutory rule about retroactivity. The legislature has expressly addressed the retroactivity of newly enacted statutes of limitations in A.R.S. § 12-505. That statute, entitled "Effect of statute changing limitation," provides as follows:

A. An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced.

B. If an action is not barred by pre-existing law, the time fixed in an amendment of such law shall govern the limitation of the action.

C. If an amendment of pre-existing law shortens the time of limitation fixed in the pre-existing law so that an action under pre-existing law would be barred when the amendment takes effect, such action may be brought within one year from the time the new law takes effect, and not afterward.

This case requires us to determine the interplay between § 12-505 and § 9-462.02(C) with respect to the eighty-nine dismissed counts in the City's enforcement action against Clear Channel.

B.

¶ 13 The counts dismissed by the superior court fall into two categories — those filed before the effective date of § 9-462.02(C) and those filed within a year after the statute's effective date. We analyze these two groups of claims separately.

¶ 14 In Arizona, a statute of limitations is tolled when a suit is commenced. Murphey v. Valenzuela, 95 Ariz. 30, 33, 386 P.2d 78, 80 (1963). A suit is commenced by the filing of a complaint. Id.; Ariz. R. Civ. P. 3. The parties agree that prior to the effective date of § 9-462.02(C), the City, a political subdivision of the State, was exempted from the application of any statute of limitations. See A.R.S. § 12-510 (2003) (providing that "...