City of Tucson v. Clear Channel Outdoor

• Decision Date: 02 April 2008
• Docket Number: No. 2 CA-CV 2007-0104.,2 CA-CV 2007-0104.
• Citation: 181 P.3d 219,218 Ariz. 172
• Parties: CITY OF TUCSON, a municipal corporation, Plaintiff/Appellant/Cross-Appellee, v. CLEAR CHANNEL OUTDOOR, INC., Defendant/Appellee/Cross-Appellant.
• Court: Arizona Court of Appeals

181 P.3d 219

218 Ariz. 172

CITY OF TUCSON, a municipal corporation, Plaintiff/Appellant/Cross-Appellee, v. CLEAR CHANNEL OUTDOOR, INC., Defendant/Appellee/Cross-Appellant.

No. 2 CA-CV 2007-0104.

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

April 2, 2008.

Gabroy, Rollman & Bossé, P.C. by Richard M. Rollman and Richard A. Brown, Tucson, Attorneys for Plaintiff/Appellant/Cross-Appellee.

Quarles & Brady LLP by David A. Paige, Nicole France Stanton, Phoenix, and Deanna Conn, Tucson, Attorneys for Defendant/Appellee/Cross-Appellant.

Arizona Center for Law in the Public Interest by Joy Herr-Cardillo, Tucson, Attorney for Amici Curiae Scenic Arizona, Neighborhood Coalition of Greater Tucson, Luz Social Services, Amistades, and Neighborhood Coalition of Greater Phoenix.

OPINION

HOWARD, Presiding Judge.

¶ 1 In this municipal code enforcement action, appellee/cross-appellant Clear Channel Outdoor, Inc., challenges the trial court's rulings that the two-year limitations period provided in A.R.S. § 9-462.02(C) did not commence until appellant/cross-appellee City of Tucson actually discovered billboard violations and that billboards in violation of repealed ordinances at the time of repeal can be regulated under the current ordinances that replaced and abrogated prior ordinances. Clear Channel also challenges those portions of the court's judgment, rendered after a bench trial, in favor of the City requiring Clear Channel to remove five billboards found in violation of applicable City ordinances and to remediate three other billboards through relocation or face replacement. Clear Channel further argues the court erred in concluding the addition of a second face to certain billboards was a violation of the applicable code and that it was an abuse of discretion to order removal of those billboards instead of remediation.

¶ 2 The City challenges those portions of the trial court's judgment that denied the City's request for removal of five billboards, including the three that the court ordered Clear Channel to remediate. The City contends the court had no discretion to order anything other than removal. In the alternative, the City argues that, if the court did have the discretion to order a different remedy, or no remedy at all, then it abused its discretion in ordering anything other than removal of all five billboards. As explained more fully below, we affirm the judgment as to counts 36, 75, 80, 97, 102, 114, 116, and 117 and we remand as to counts 11 and 61 for further consideration by the trial court consistent with this opinion.

Procedural Background

¶ 3 This case arises out of approximately twenty years of disputes between the City and Clear Channel or its predecessors regarding the regulation of billboards. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶¶ 2-8, 105 P.3d 1163, 1165-66 (2005) (describing some procedural history of dispute). The current appeal arises from a lawsuit first initiated in 2000 by the City against Clear Channel's predecessor. The City alleged violations involving over 170 billboards, with each billboard constituting a separate count. In order to make the litigation manageable, the trial court ordered the parties to select a small number of billboards representative of the various violations alleged. The court expressed the hope that, after the issues involving these billboards had been litigated, the parties would be more likely to reach a settlement regarding the remaining billboards. The ten billboards selected for trial were those associated with counts 11, 36, 61, 75, 80, 97, 102, 114, 116, and 117, in the City's complaint. After a series of mini-trials on these counts, the court entered final judgment ordering the following: removal of the billboards associated with counts 36, 80, 102, 116, and 117; relocation of the billboards associated with counts 11 and 61; and replacement of the face on the billboard associated with count 75. The court denied relief as to the billboards associated with counts 97 and 114.

Discovery Standard under A.R.S. § 9-462.02(C)

¶ 4 Clear Channel argues the trial court erred by determining that the two-year limitations period set forth in § 9-462.02(C) is triggered only when the City "actually discovers a violation involving an outdoor advertising use or structure zoning or sign code violation." Clear Channel argues the limitations period is triggered "when the City knew or, in the exercise of reasonable diligence, should have known of the facts underlying the purported violation."¹

¶ 5 We review de novo questions of statutory interpretation and questions of law regarding statute of limitations defenses. N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, ¶ 8, 93 P.3d 501, 503 (2004); Montaño v. Browning, 202 Ariz. 544, ¶ 4, 48 P.3d 494, 496 (App.2002). The purpose of a statute of limitations is generally to "protect[ ] defendants and the courts from litigation of stale claims" for which evidence may be lost or the memories of witnesses faded. Nolde v. Frankie, 192 Ariz. 276, ¶ 12, 964 P.2d 477, 480 (1998). However, courts disfavor statute of limitations defenses, preferring instead to resolve litigation on the merits when possible. See Montaño, 202 Ariz. 544, ¶ 3, 48 P.3d at 496; see also Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590, 898 P.2d 964, 968 (1995).

¶ 6 If a statute of limitations question requires statutory interpretation, we must construe the statute so as to fulfill legislative intent. See UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, ¶ 11, 26 P.3d 510, 512-13 (2001). When interpreting a statute, we look first to the plain language because that is "`the best and most reliable index of a statute's meaning.'" N. Valley Emergency Specialists, 208 Ariz. 301, ¶ 9, 93 P.3d at 503, quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). When the language of a statute is clear and unambiguous, a court should not look beyond the language, but rather "simply `apply it without using other means of construction,' assuming that the legislature has said what it means." Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823 (2002), quoting UNUM Life Ins., 200 Ariz. 327, ¶ 12, 26 P.3d at 513.

¶ 7 Section 9-462.02(C) provides that "[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." The plain language, "after discovering," is clear and unambiguous. Nothing within the text of the statute suggests any legislative intent other than to begin the limitations period upon actual discovery of a violation.

¶ 8 Clear Channel asserts that the legislative intent in enacting § 9-462.02(C) was to "shorten the time in which the City could bring its claims" and argues that a plain meaning interpretation does not fulfill this intent. Clear Channel also cites the Arizona State Senate Fact Sheet for H.B. 2559, 44th Leg., 2d Reg. Sess. (Ariz. Mar. 7, 2000), the bill that became § 9-462.02(C), which states: "A statute of limitation is needed in this context in order to avoid a situation where a series of citations may be `saved up' to be used as leverage to force a billboard company to remove billboards." Clear Channel asserts that to interpret the statute according to its plain language "would permit the City to extend its right to bring an action against a nonconforming billboard for an indefinite period of time, and defeat the very purpose of § 9-462.02(C)."

¶ 9 First, when statutory language is unambiguous, we do not look beyond it. See Hughes, 203 Ariz. 71, ¶ 11, 50 P.3d at 823. Moreover, before the enactment of § 9-462.02(C), there was no statutory time restriction on the City's ability to bring its claims. See Clear Channel, 209 Ariz. 544, ¶¶ 39-40, 105 P.3d at 1173. Construing the words "after discovering" in § 9-462.02(C) according to their plain meaning requires the City to file claims within two years of actual discovery of a violation and thus imposes a statutory time limit where none had previously existed. Therefore, by its clear and unambiguous terms, the statute fulfills the legislative intent of shortening the time by which the City must file its claims. And, contrary to Clear Channel's assertion, a plain meaning interpretation addresses the concern expressed in the senate fact sheet. By mandating that claims be brought within two years of actual discovery, the statute precludes the City from saving up its claims over "an indefinite period of time" and exercising the feared leverage. The fact sheet therefore supports the City's rather than Clear Channel's position.

¶ 10 Clear Channel argues that § 9-462.02(C) should be interpreted to incorporate the "discovery rule" imposed in other areas of civil litigation with regard to accrual of a plaintiffs cause of action. Under the discovery rule, accrual of a cause of action occurs when the "plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause." Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966; see also Vega v. Morris, 184 Ariz. 461, 463, 910 P.2d 6, 8 (1996) (cause of action accrues when "plaintiff knows or reasonably should have known" of defendant's negligent conduct). As the City correctly observes, this case law was developed to interpret statute of limitations language that expressly requires a claim to be filed within a certain number of years "after the cause of action accrues." See Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966 (interpreting A.R.S. § 12-548); Sato v. Van Denburgh, 123 Ariz. 225, 227, 599 P.2d 181, 183 (1979) (interpreting A.R.S. § 12-542); see also Mayer v. Good Samaritan Hosp., 14 Ariz.App. 248, 252, 482 P.2d 497, 501 (1971) (discovery rule developed to address ambiguity of term "accrues"). Because the discovery rule is firmly established in the context of determining when a cause of...