City of Yuma v. Lattie

• Decision Date: 06 October 1977
• Docket Number: CA-CIV,No. 1,1
• Citation: City of Yuma v. Lattie, 572 P.2d 108, 117 Ariz. 280 (Ariz. App. 1977)
• Parties: CITY OF YUMA, a Municipal Corporation, Appellant, v. Ruth LATTIE, Appellee. 3019.
• Court: Arizona Court of Appeals

Page 108

572 P.2d 108

117 Ariz. 280

CITY OF YUMA, a Municipal Corporation, Appellant, v. Ruth LATTIE, Appellee.

No. 1 CA-CIV 3019.

Court of Appeals of Arizona, Division 1.

Oct. 6, 1977.

Rehearing Denied Nov. 15, 1977.

Review Denied Dec. 13, 1977.

Gust, Rosenfeld, Divelbess & Henderson by Fred H. Rosenfeld, Phoenix, for appellant.

Westover, Choules, Shadle & Bowen by Ted B. Bowen, Jay R. Irwin, Yuma, for appellee.

OPINION

EUBANK, Judge.

This is an appeal by the city of Yuma from a jury verdict in favor of the appellee, who brought an inverse eminent domain action for damages to her real property. The damages were the result of street improvements constructed as a part of a special assessment district. Specifically, appellee's claims for damages were for the impairment of her ingress and egress and from the increase in the probability of flooding to her property resulting from a change in the grade of a street.

The facts are that appellee was the owner of Lot 13 and the south half of Lot 14, of the Los Nidos Subdivision of the city of Yuma. This land was annexed into Yuma on February 2, 1954, and subsequently subdivided. The subdivision plat was approved by the City Council of Yuma on May 1 1956, and recorded on June 26, 1956. All streets and alleys were dedicated to Yuma by the recorded plat, but no grade levels of the streets, alleys or easements were specified.

On November 19, 1959, a building permit was obtained by appellee's predecessor in interest and a house was constructed on the lots. The completed house was slightly higher at foundation level than the abutting street and alley, with drainage running generally away from the property. Appellee's yard was watered by irrigation. Several years after the house was completed, Yuma, as an emergency matter, adopted Ordinance No. 1018 on June 8, 1966, setting the grade of the street abutting appellee's property approximately three feet above the prior grade. This grade was established in preparation for the construction of Street Improvement District No. 53. Other proceedings and actions which were undertaken by Yuma, pursuant to A.R.S. §§ 9-671 to 9-716, led eventually to the construction, assessment, and bonding of the District.

Following the construction of the Improvement District, appellee's home was in a "hole", approximately three feet below the street level in front. In addition, the alley running in back of the house was also raised. The new elevation of the street and alley made ingress and egress difficult. The improvements also caused water to pond in the street, overflow the curb and sidewalk, and then run down appellee's front steps into the front yard. By the time of the trial, such flooding had occurred on one occasion as the result of a rain. The water, however, did not get into the house or carport.

At the trial, the appellee testified that before the improvement the property had a value of $40,000 and after the improvement it had a value of $20,000, resulting in $20,000 damages. Her expert witness appraiser, Harvey Self, testified to estimated damages of $17,500. Yuma put on no valuation testimony, relying instead on the principles of law discussed below. The matter went to the jury, which returned a verdict of $20,000 in appellee's favor. As an element of the trial, the jury was permitted to visit appellee's property and view the claimed damage. Yuma appealed from both the judgment and an order denying a new trial.

Yuma raises four questions for our consideration:

1. Is a determination by a city council sitting as a board of apportionment pursuant to A.R.S. 9-687(F) final and conclusive as to a decision overruling an objection to an assessment based upon the claim that the improvement "as constructed" did not benefit the objector's adjacent property but did in fact damage such property?

2. Is a city liable for damage caused to a person's property due to an improvement being made by the City where the damage results because of a change of grade in the street being improved where the grade existing prior to the improvement was not an officially established grade?

3. May the official grade of a street be established by any conduct other than by action of the city council as expressed by an ordinance, resolution or a motion of the council duly passed upon in open session?

4. Did the Plaintiff below prove any actual damage to the value of her property occasioned by an improvement undertaken by the City?

I. FINALITY OF A.R.S. § 9-687(F)

The basis of Yuma's first question is A.R.S. § 9-687(F), as amended, which reads:

F. The owners, contractor and all other persons directly interested in the work or in the assessment, who have any objection to the legality of the assessment or to any of the previous proceedings connected therewith, or who claim that the work has not been performed according to the contract, may, prior to the time fixed for the hearing, file a written notice briefly specifying the grounds of their objections. At the time fixed for the hearing or at any time not later than ten days thereafter to which the hearing may be postponed, the governing body shall hear and pass upon the objections. The decision of the governing body shall be final and conclusive upon all persons entitled to object as to all errors, informalities and irregularities which the governing body might have remedied or avoided at any time during the progress of the proceedings. (Emphasis added)

Yuma contends that the determination of the assessment, pursuant to § 9-687(F), against appellee's real property by the Mayor and Council, following a hearing, was a final determination and "not subject to judicial scrutiny by the superior court system of this State except through a special action in the nature of certiorari." In effect, Yuma is arguing that the Council's determination forecloses any claim by appellee for damages resulting from a taking or damaging of appellee's real property. The appellee, within limits, admits the verity of Yuma's contention regarding the assessment determination but argues that her claim is based on inverse eminent domain for damage to her property rather than on the assessment determination. We agree with the appellee.

Yuma is a Charter City. "Its charter is its organic law, which must be 'consistent with, and subject to, the constitution and laws of the state.' Section 2, Article XIII (of the Arizona Constitution)." Trigg v. City of Yuma, 59 Ariz. 480, 484, 130 P.2d 59, 61 (1942). No claim is made here by Yuma that any of its charter provisions or ordinances are applicable to the disposition of this matter. Consequently, we must assume that the statutes relating generally to cities are applicable.

All Arizona cities are subject to Article 2, Section 17 of the Arizona Constitution, 1 A.R.S., which provides, in part, that "no private property shall be taken or damaged for public or private use without just compensation having first been made, . . . ." A city's general authority to exercise the power of eminent domain is found in A.R.S. § 12-1111. See Citizen's Utilities Water Co. v. Superior Court, 108 Ariz. 296, 497 P.2d 55, cert. denied, 409 U.S. 1022, 93 S.Ct. 462, 34 L.Ed.2d 314 (1972); City of Phoenix v. Donofrio, 99 Ariz. 130, 407 P.2d 91 (1965). A.R.S. § 12-1111(6), in part, authorizes the exercise of eminent domain by a city for: "Roads, streets, and alleys, and all other public uses for the benefit of a . . . city . . . , which is authorized by the legislature." Under A.R.S. § 9-276(A), a city is authorized to exercise the following powers:

A. In addition to the powers already vested in cities by their respective charters and by general law, cities and their governing bodies may:

1. Lay out and establish, regulate the use, open, vacate, alter, widen, extend, grade, pave, plant trees or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds.

22. Establish and alter the grade of streets, alleys and sidewalks, and regulate the manner of using the streets and pavements in the city to protect them from injury by vehicles driven thereon. No street or sidewalk grade shall be altered after it has once been established and built unless compensation is made to abutting owners for damages done their property by the change.

23. Make local improvements by special assessments, by special taxation or otherwise, as they shall by ordinance prescribe.

In addition, A.R.S. §§ 9-602, 606 and 622 authorize a city to form a special improvement district for eminent domain purposes where streets are to be created or improved.

A city, then, has extensive authority, including the authority to exercise the power of eminent domain, to do every act necessary in order to establish an adequate street and road system within the city. If the city fails to institute an eminent domain action and private property is taken or damaged for public use, Article 2, Section 17 of the Constitution is self-executing and the right to bring an inverse eminent domain action vests in the property owner. See State v. Hollis, 93 Ariz. 200, 379 P.2d [117 Ariz. 284] 750 (1963); State v. Leeson, 84 Ariz. 44, 323 P.2d 692 (1958).

Turning to the question sub judice, Street Improvement District No. 53 was instituted by the council pursuant to A.R.S. §§ 9-671 to 9-716. These statutes make no reference to eminent domain. Additionally, no eminent domain proceedings were authorized by the council in its District Resolution, since apparently no damage to real property was anticipated. Yuma's contention that, as a matter of law, an A.R.S. § 9-687(F), supra, determination of assessment bars appellee's inverse eminent domain claim is, we believe, erroneous for several reasons. First, Article 2, Section 17 of the Arizona Constitution, which provides that no private property shall be taken or damaged for public use without just compensation having first been made, in our opinion, overrides any such contention. Second, nothing contained in A.R.S....