City of Tucson v. Whiteco Metrocom, Inc.

• Decision Date: 23 February 1999
• Docket Number: No. 2 CA-CV 98-0064.,2 CA-CV 98-0064.
• Citation: 194 Ariz. 390,983 P.2d 759
• Parties: CITY OF TUCSON, a municipal corporation, Plaintiff/Appellant/Cross-Appellee, v. WHITECO METROCOM, INC., Defendant/Appellee/Cross-Appellant.
• Court: Arizona Court of Appeals

983 P.2d 759

194 Ariz. 390

CITY OF TUCSON, a municipal corporation, Plaintiff/Appellant/Cross-Appellee, v. WHITECO METROCOM, INC., Defendant/Appellee/Cross-Appellant.

No. -0064.

Court of Appeals of Arizona, Division 2, Department B.

February 23, 1999.

Redesignated as Opinion April 14, 1999.

Review Denied November 29, 1999.

Thomas J. Berning, City Attorney By Frank William Kern III and Laura Brynwood, Tucson, Attorneys for Plaintiff/Appellant/Cross-Appellee.

Lewis and Roca, LLP By John N. Iurino and Mary Beth Savel, Tucson, Attorneys for Defendant/Appellee/Cross-Appellant.

OPINION

HOWARD, Judge.

¶ 1 Appellant/cross-appellee City of Tucson challenges those portions of the trial court's judgment determining that the City's "vacant lot" ordinance, Tucson Code § 3-59(a)(6)(b), was unenforceable against appellee/cross-appellant Whiteco Metrocom, and that four of Whiteco's billboards were not subject to removal. Whiteco cross-appeals the portion of the trial court's judgment ordering it to remove eleven of its billboards. We affirm in part, and vacate and remand in part.

¶ 2 In this action for equitable relief, the City sued Whiteco, seeking the removal of several billboards, claiming the billboards violated the City's vacant lot ordinance. The City also claimed some of the billboards were impermissibly expanded, relocated, or changed, and thereby lost the protection of the nonconforming use statute, A.R.S. § 9-462.02. The trial court granted Whiteco's motion for partial summary judgment, declaring that § 9-462.02(B) prohibited the City from enforcing the vacant lot ordinance against Whiteco. After a bench trial on the remaining claims, the court entered detailed findings of facts and conclusions of law, permitted Whiteco to retain three billboards, ordered Whiteco to remove the second advertising face from another billboard, and ordered Whiteco to remove eleven of the contested billboards because they had lost their nonconforming use status.

APPEAL

A. Vacant Lot Ordinance

¶ 3 The City first argues that the trial court erred in refusing to enforce the vacant lot ordinance. The relevant facts are undisputed. The billboards that are the subject of this action were erected on undeveloped land before the City enacted its vacant lot ordinance. In 1985, the City enacted § 3-59(a)(6)(b),¹ which provides:

Billboards are prohibited on any developed property. Any existing billboard must be removed before a certificate of occupancy will be issued for a development on any undeveloped parcel which is subject to the requirements of section 23-409, sections 23-534 through 539 or the Uniform Administrative Code, Section 302.

¶ 4 After the ordinance was enacted, Whiteco sued the City in federal court, claiming that the ordinance was unconstitutional and exceeded the authority granted the City by § 9-462.02(A). The City stipulated that it would not enforce the ordinance against Whiteco while the lawsuit was pending.

¶ 5 In 1993, the Ninth Circuit Court of Appeals declared the ordinance constitutional and enforceable. Outdoor Systems v. City of Mesa, 997 F.2d 604 (9th Cir.1993); see also Outdoor Systems v. City of Mesa, 169 Ariz. 301, 819 P.2d 44 (1991). Apparently in response to that decision, in 1994 our legislature enacted § 9-462.02(B), which provides:

A municipality shall not require as a condition for a permit or for any approval, or otherwise cause, an owner or possessor of property to waive the right to continue an existing nonconforming outdoor advertising use or structure without [paying for or relocating the use or structure].

¶ 6 After subsection (B) was enacted, but just before it became effective, the City sued Whiteco seeking removal of the billboards. The City moved for partial summary judgment, claiming that subsection (B) could not be applied retroactively to bar enforcement of § 3-59(a)(6)(b) as to parcels developed after the ordinance was enacted but before the effective date of subsection (B). Whiteco also moved for partial summary judgment, claiming that subsection (B) prohibited enforcement of § 3-59(a)(6)(b) against the billboards in issue because the City's cause of action had not been litigated to judgment prior to the effective date of subsection (B). The trial court granted Whiteco's motion and denied the City's.

¶ 7 At the outset, we note that the City has attempted to raise new arguments on appeal. Below, the City made a threadbare argument that subsection (B) should not apply retroactively because building permits for each contested property at issue were issued prior to the effective date of subsection (B). This argument, at least implicitly, is reflected in the City's argument on appeal that subsection (B) impairs the City's vested rights. On appeal, however, the City argues for the first time that subsection (B) affects substantive rights; that application of subsection (B) violates Arizona judicial policy and the separation of powers doctrine; and that statutory amendments imposing monetary obligations on the government may not be applied retroactively. Several of these arguments were first raised in the City's reply brief. Except for the City's vested rights argument, which is the only argument implicitly raised below, we will not address the City's other arguments regarding subsection (B) which were raised for the first time on appeal. ABC Supply, Inc. v. Edwards, 191 Ariz. 48, 952 P.2d 286 (App.1996); Murphy v. Town of Chino Valley, 163 Ariz. 571, 789 P.2d 1072 (App.1989); Richter v. Dairy Queen of Southern Arizona, 131 Ariz. 595, 643 P.2d 508 (App.1982).

¶ 8 We review the application of subsection (B) to these facts de novo. Schwarz v. City of Glendale, 190 Ariz. 508, 950 P.2d 167 (App.1997). If, as the City argues, subsection (B) impairs the City's vested rights, the subsection is operating retroactively. Tower Plaza Investments Ltd. v. DeWitt, 109 Ariz. 248, 508 P.2d 324 (1973). Generally, a statute does not apply retroactively unless the legislature specifically so provides. A.R.S. § 1-244; Haines v. Police Pension Bd., 152 Ariz. 546, 733 P.2d 1129 (App.1986). Statutes pertaining to procedures and remedies that do not impair vested rights are exceptions to this general rule. Wilco Aviation v. Garfield, 123 Ariz. 360, 599 P.2d 813 (App.1979).² ¶ 9 Municipalities do not have vested rights in their municipal powers because the legislature has virtually unlimited authority over them; "[i]t may incorporate or disincorporate them; it may add to or take away from their territorial area; it may grant to or take away from them such powers as it may see fit." Udall v. Severn, 52 Ariz. 65, 69, 79 P.2d 347, 348 (1938); see also State Bd. of Control v. Buckstegge, 18 Ariz. 277, 158 P. 837 (1916). "In the absence of any express or implied restriction in the constitution, political powers conferred upon municipal corporations for local government are not vested rights as against the state, and the legislature has the absolute power to change, modify or destroy them." 2 Dennis Jensen & Gail A. O'Gradney, Eugene McQuillin The Law of Municipal Corporations, § 4.05 at 18 (3d ed.1996). See also Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 48 L.Ed. 148 (1903); Blount v. MacDonald, 18 Ariz. 1, 155 P. 736 (1916); 56 Am.Jur.2d Municipal Corporations § 23 (1971).

¶ 10 The City's power to enact zoning ordinances derives exclusively from the state. Levitz v. State, 126 Ariz. 203, 613 P.2d 1259 (1980); see also Outdoor Systems v. City of Mesa, 169 Ariz. 301, 819 P.2d 44. The City, therefore, does not have vested rights in its zoning powers, and the state can reduce or condition those powers, as it did through subsection (B). See Udall.

¶ 11 The City cites In re Dos Cabezas Power District, 17 Ariz.App. 414, 498 P.2d 488 (1972), as authority for the general proposition that a city can have vested rights. Dos Cabezas, however, concerned the vested rights of people seeking to form a power district, not the rights of the nonexistent district. That case neither explicitly or implicitly held that municipalities can have vested rights in powers granted by the state. Cf. Brown Wholesale Elec. Co. v. H.S. Lastar Co., 152 Ariz. 90, 95, 730 P.2d 267, 272 (App.1986), quoting People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 321 (1939) ("[T]he legislature cannot pass a retrospective law impairing the obligation of a contract, nor deprive a citizen of a vested right.") (emphasis added). The City, therefore, has failed to rebut the rule that cities do not have vested rights in powers derived from the state.

¶ 12 Finally, "[a] cause of action depending solely on statute is not a vested right protected by the Constitution." Brown Wholesale, 152 Ariz. at 95, 730 P.2d at 272. The City's cause of action is totally dependent on A.R.S. § 9-462.01, Levitz; Outdoor Systems v. City of Mesa, 169 Ariz. 301, 819 P.2d 44, therefore it is not a vested right. The City attempted to convert its cause of action into a vested right by filing its lawsuit prior to the effective date of subsection (B). It has not, however, cited any authority suggesting that the filing of a lawsuit saves a cause of action that is dependent on a statute that is modified or repealed to eliminate the cause of action. To the contrary, "[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." Dos Cabezas, 17 Ariz.App. at 420, 498 P.2d at 494. See also Brown Wholesale, 152 Ariz. at 95, 730 P.2d at 272 ("[A]n action wholly dependent on the existence of a statute abates if the statute is repealed without a savings clause before judgment is final.").

¶ 13 The City's action is wholly dependent on § 9-462.01 which was modified by § 9-462.02(B). Subsection (B) prohibits the City from requiring the removal of billboards as a condition of issuing a permit or "otherwise caus[ing]" their removal other than by purchase, condemnation,...