Corrigan v. City of Scottsdale
| Decision Date | 02 June 1986 |
| Docket Number | No. 18239-PR,18239-PR |
| Citation | 149 Ariz. 538,720 P.2d 513 |
| Parties | , 55 USLW 2051, 16 Envtl. L. Rep. 20,985 Joyce M. CORRIGAN, Plaintiff-Appellant, v. CITY OF SCOTTSDALE, a municipal corporation, Defendant-Appellee. |
| Court | Arizona Supreme Court |
Fennemore, Craig, von Ammon, Udall & Powers by James Powers, Timothy Berg, and Jane Nicoetti-Jones, Phoenix, for plaintiff-appellant.
William E. Farrell, Scottsdale City Atty., Scottsdale, Schorr, Eldridge and Bangs by S.L. Schorr and Frank S. Bangs, Jr., Tucson, Lewis & Roca by John P. Frank and Michael O. Miller, Phoenix, for defendant-appellee.
This is a petition for review of an opinion of the court of appeals, which reversed the trial court judgment in favor of the City of Scottsdale and declared its zoning ordinance void as an unconstitutional taking of Ms. Corrigan's property without just compensation. Corrigan v. City of Scottsdale, 149 Ariz. 553, 720 P.2d 528 [App.1985]. We have jurisdiction pursuant to art. 6 § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 and Rule 23, Ariz.R.Civ.App.Proc., 17A A.R.S.
The only issue to be decided on review is whether a landowner is entitled to money The facts follow. Ms. Corrigan owns 5,738 acres of undeveloped land, which is made up of three contiguous parcels. The largest parcel of land is approximately 4,800 acres; a smaller parcel of 608 acres adjoins the large parcel in a single point, at its northwest corner. A third parcel of approximately 330 acres connects with the large parcel, at the large parcel's southwest corner. All of this property is a part of, or close to, the McDowell Mountains. This land previously had been part of the D.C. Ranch, owned by Corrigan's father and E.E. Brown. Ms. Corrigan obtained her part of the property by purchase for two million dollars from Brown's children.
[149 Ariz. 539] damages for a temporary taking of property by reason of an invalid zoning ordinance.
In 1963, the City of Scottsdale (city) annexed the southern part of the DC Ranch, including the land involved herein. The McDowell Mountains thus became the only hilly or mountainous terrain within the city limits. The land was zoned by the city as R-1-35 which allows one single family residence on a lot of at least 35,000 square feet.
Later in 1977, the city, in accordance with its earlier general use plans, added sections 6.800 through 6.807 to its zoning ordinance thus creating the Hillside District. This ordinance established two areas, the Hillside Conservation Area and the Hillside Development Area. The two areas are divided by a "no development" line. This line is located wherever one of the following conditions is first encountered: unstable slopes subject to rolling rocks or landslides; bedrock areas; slopes of 15 percent or more; or shallow, rocky mountain soils subject to severe erosion. This line under certain conditions may be adjusted to where two of the enumerated conditions are present. The Conservation Area, which is all land above the "no development" line, is to be used solely for the conservation of open space with the land legally secured for such conservation by easement or dedication. The Development Area may be developed with some limitations, such as retaining a fixed minimum percentage of the land in its natural state. Finally, the ordinance provided density credits for the land in the Conservation Area which may be transferred to contiguous land in the Development Area. 1
The Hillside District ordinance did not affect Ms. Corrigan's two smaller parcels of land; however, 3,836 acres or 80 percent of her 4,800 acre parcel is in the Conservation Area. Assuming that all possible adjustments in the "no development" line were made, 3,523 acres or 74 percent of this land would still remain in the Conservation Area.
Ms. Corrigan filed suit seeking a declaration that the ordinance was unconstitutional and further claiming money damages for the temporary taking of her property. Ms. Corrigan did not submit a development plan to the city either prior to or after filing the suit. The trial court entered findings of fact and conclusions of law that the ordinance was constitutional and that no taking of Ms. Corrigan's property had occurred. Accordingly, it dismissed the claim for damages.
The issue of monetary damages for a regulatory "taking" of property without just compensation is not well settled in land use law. The United States Supreme Court has failed to decide this precise question on several occasions: Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In fact, at this writing, it is set to examine the issue once again. See MacDonald, Sommers & Frates v. County of Yolo [3 CIV 22306 Cal.Ct.App., 3d Dist. unpublished opinion filed 24 January 1985], cert. granted, --- U.S. ----, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985). As there is no definitive interpretation on this issue under the Fifth Amendment of the United States Constitution, we will rely on the Arizona Constitution. A state constitutional analysis of this question is not unusual, see Burrows v. City of Keene, 121 N.H. 590, 432 A.2d 15, 22 (1981), and is quite appropriate in light of our unique constitutional provision.
Article 2 § 17 of the Arizona Constitution provides in part:
No private property shall be taken or damaged for public or private use without just compensation having first been made ... [and] until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury....
This provision, like the Fifth Amendment, prohibits a taking of property without just compensation but unlike the Fifth Amendment, specifically requires compensation for a taking to be made by a payment of money in a judicially determined amount. In the instant case, the court of appeals held and we agree that the Hillside Ordinance does "constitute a taking of property for which just compensation must be made." Corrigan v. City of Scottsdale, 149 Ariz. at 565, 720 P.2d at 540. Thus the next step, under the Arizona Constitution, should logically be the imposition of money damages. Nevertheless, the appeals court upheld the trial court's dismissal of the money damages claim based on Davis v. Pima County, supra.
In Davis, the court of appeals stated:
When a zoning ordinance is confiscatory it results in a "taking of the property and is, in effect, the exercise of the power of eminent domain."
* * *
* * *
However, though appellants established a "taking" if the board's action were not undone, this does not mean they are entitled to money damages. * * * The proper remedy when zoning is confiscatory is either to seek by declaratory judgment to invalidate the general zoning ordinance or to challenge the particular rezoning determination by means of a special action.
121 Ariz. at 345, 590 P.2d at 461. (emphasis added) (citations omitted). We do not agree. Admittedly, a zoning body should not have its ordinance invalidated and then have to pay full fair market value condemnation type damages based on a permanent taking. "[N]othing in the Just Compensation [O]nce a court establishes that there was a regulatory "taking," the Constitution demands regulatory that the government entity pay just compensation for the period commencing on the date the regulation first effected the "taking," and ending on the date the government entity chooses to rescind or otherwise amend the regulation.
[149 Ariz. 541] Clause empowers a court to order a government entity to condemn the property and pay its full fair market value, where the 'taking' already effected is temporary and reversible...." San Diego Gas & Electric v. City of San Diego, 450 U.S. at 659, 101 S.Ct. at 1307, (BRENNAN, J., dissenting). However, once an unconstitutional taking is shown, a person should receive damages for the time in which the confiscatory zoning ordinance has "taken the property", that is the time between the taking and the invalidation of the ordinance.
San Diego Gas & Electric v. City of San Diego, 450 U.S. at 654, 101 S.Ct. at 1305 (BRENNAN, J., dissenting) (citations and footnotes omitted). We believe that once a taking is found, the Arizona Constitution mandates the payment of money as damages for any injury suffered. Ariz. Const., art. 2 § 17. We agree with the simple logic expressed by Justice Brennan in his San Diego Gas & Electric v. City...
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