Group v. City of Tucson

• Decision Date: 29 September 2011
• Docket Number: No. 2 CA–CV 2011–0025.,2 CA–CV 2011–0025.
• Citation: 228 Ariz. 120,263 P.3d 669,618 Ariz. Adv. Rep. 31
• Parties: TDB TUCSON GROUP, L.L.C., a Delaware limited liability company, Plaintiff/Appellant,v.CITY OF TUCSON, a municipal corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

228 Ariz. 120

263 P.3d 669

618 Ariz. Adv. Rep. 31

TDB TUCSON GROUP, L.L.C., a Delaware limited liability company, Plaintiff/Appellant,

v.CITY OF TUCSON, a municipal corporation, Defendant/Appellee.

No. 2 CA–CV 2011–0025.

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

Sept. 27, 2011.As Corrected Sept. 29, 2011.

Lewis and Roca LLP By John N. Iurino and Sivan R. Korn, Tucson, Attorneys for Plaintiff/Appellant.Gabroy, Rollman & Bossé, P.C. By Richard M. Rollman and Richard A. Brown, Tucson, Attorneys for Defendant/Appellee.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 TDB Tucson Group, L.L.C. (“TDB”) appeals from the trial court's grant of summary judgment in favor of the City of Tucson. On appeal, TDB contends the court erred in ruling that, as a matter of law, the City had no obligation to provide water service to TDB's real property (the “Property”) located outside the City's corporate boundaries. For the reasons stated below, we affirm.

Factual and Procedural Background

¶ 2 “In reviewing a grant of summary judgment, we view the evidence and reasonable inferences ‘in the light most favorable to the party opposing the motion.’ ” Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, ¶ 7, 213 P.3d 320, 323 (App.2009), quoting Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, ¶ 13, 38 P.3d 12, 20 (2002). The Property is located in an unincorporated area of Pima County adjacent to the City of Tucson. TDB requested, and in February 2007 the City issued, a Water Availability letter to TDB, certifying the City was capable and willing to provide water service to the Property.¹ In August 2007, Pima County approved TDB's plan to develop the Property as a residential subdivision. Later that year, the City announced an interim water service policy that it would no longer extend water service outside its corporate boundaries unless it was legally obligated to serve a specific area. And, in October 2008, the City notified TDB it would not be extending service to the Property because of its interim policy.

¶ 3 In May 2010, TDB sued the City, seeking declaratory relief and alleging the City had violated its “legal obligation to provide adequate service impartially and without discrimination to all members of the general public to whom its scope of operation extends.” TDB also filed an “Application for an Order to Show Cause why a writ of mandamus should not issue ordering ... the City ... to provide water services to the Property.”

¶ 4 The parties stipulated that the application could be treated as a motion for summary judgment, and the City filed a cross-motion for summary judgment. Relying on A.R.S. § 45–492(A) of the Groundwater Management Act (the “GMA”), TDB asserted that “the residents and landowners in a municipality's service area are entitled to water service where such service has been established.” And it argued, based upon its interpretation of the definition of “service area” in A.R.S. § 45–402(31)(a), “[t]here can be no dispute that the Property is in the City's service area.” The City responded that the Property is not located within the City's service area as defined under the statute because the City has never provided water service to the Property and that the Property does not contain an operating distribution system owned by the City. The City argued that, although it may choose to serve lands outside its water service area, it had no legal duty to do so in this instance.

¶ 5 After hearing argument, the trial court granted the City's cross-motion and denied TDB's motion for summary judgment. The court based its ruling primarily on its interpretation of the definition of “service area” found in § 45–402(31)(a), which reads in pertinent part:

“Service area” means ... [w]ith respect to a city or town, the area of land actually being served water, for a non-irrigation use, by the city or town plus ... [a]dditions to such area which contain an operating distribution system owned by the city or town primarily for the delivery of water for a non-irrigation use.

Because there was no dispute that the Property did not contain an operating distribution system, the court instead focused on the phrase “area of land actually being served water.” It adopted the City's reasoning and concluded the City had no legal duty to provide water service to the Property. This appeal followed.

Standard of Review

¶ 6 “A trial court properly grants summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 19, 158 P.3d 232, 239 (App.2007). We review a grant of summary judgment de novo. Andrews v. Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003). We also review de novo issues of law involving statutory interpretation. Bentley v. Building Our Future, 217 Ariz. 265, ¶ 11, 172 P.3d 860, 865 (App.2007).

Discussion

¶ 7 TDB maintains the City has a legal duty to provide water service to the Property because it is located within the City's service area. The trial court, relying on the definition of “service area” found in § 45–402(31), accurately framed the issue at the center of the parties' dispute as follows:

Here, because the parties do not dispute that the City has never served [the Property] specifically, nor the fact that the property contains no City-owned water infrastructure within its discrete boundaries, the focus is really on how to properly interpret “the area of land actually being served water” found in the statutory definition of “service area.” ²

¶ 8 On appeal, TDB essentially contends that the trial court too narrowly interpreted the statutory language and that under the court's interpretation, “ no unserved property can ever be considered as included within a city's ‘service area,’ because it is unserved. Put differently, the City would never have a duty to serve water to any property which is not already served.” TDB argues the phrase “area of land actually being served water” refers to the geographic area generally—rather than a piece of property specifically—and that because “the City provides water service to the properties surrounding and adjacent to the Property,” it is therefore within an area of land actually being served.

¶ 9 “Our principal goal when interpreting a statute is to give effect to the legislature's intent.” Blevins v. Gov't Emp. Ins. Co., 226 Ariz. 450, ¶ 13, 250 P.3d 227, 230 (App.2011). “We look primarily to the language of the statute and give effect to the terms according to their commonly accepted meanings ... unless the legislature provides a specific definition or the context of the statute indicates a specific meaning.” Mercy Healthcare Ariz., Inc. v. Ariz. Health Care Cost Containment Sys., 181 Ariz. 95, 98, 887 P.2d 625, 628 (App.1994). “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.’ ” City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App.2008), quoting Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823 (2002). And we will not interpret a statute in such a way as to produce “absurd results,” see Clear Channel, 218 Ariz. 172, ¶ 26, 181 P.3d at 229, or “render [any word, phrase, clause, or sentence] superfluous, void, insignificant, redundant or contradictory,” Patterson v. Maricopa Cnty. Sheriff's Office, 177 Ariz. 153, 156, 865 P.2d 814, 817 (App.1993).

¶ 10 Based upon its broad interpretation of the statutory language, TDB argues a municipality acting in its capacity as a water utility must provide service to “all who reasonably require service within its area of actual operation.” To support its argument, TDB relies on Veach v. City of Phx., 102 Ariz. 195, 427 P.2d 335 (1967), Town of Wickenburg v. Sabin, 68 Ariz. 75, 200 P.2d 342 (1948), and Travaini v. Maricopa Cnty., 9 Ariz.App. 228, 450 P.2d 1021 (1969). We find that reliance misplaced.

¶ 11 In Veach, the owner of a store located in the City of Phoenix sued the city after the store was destroyed in a fire because the city had refused to provide water for fire protection despite the owner's earlier request that the city install a fire hydrant. 102 Ariz. at 196, 427 P.2d at 336. The trial court dismissed the complaint, finding the city was acting in its governmental capacity in furnishing water for the purpose of fighting fires and it had no duty to supply the owner with water for fire protection. Id. In reversing that decision, our supreme court first made clear that “a municipality has no absolute duty to provide water for fire protection purposes to its inhabitants.” It held, “[h]owever, [that] when a city assumes the responsibility of furnishing fire protection, ... it has the duty of giving each person or property owner such reasonable protection as others within a similar area within the municipality are accorded under like circumstances.” Id. at 197, 427 P.2d at 337.

¶ 12 In Sabin, the Town of Wickenburg operated water and electric utilities within the town limits. 68 Ariz. at 76, 200 P.2d at 342. After the town annexed the subdivision in which Sabin lived, he paid the customary fee to establish water and electric service but was told his application would be denied unless he also paid a substantial deposit. Id. at 76, 200 P.2d at 343. Sabin refused to pay the deposit and his application was denied. Id. The owner of the lot next to Sabin's was required to pay only the customary establishment fee. Id. at 77, 200 P.2d at 343. The superior court issued a writ of mandamus compelling the town to provide water and electric service, and our supreme court affirmed, concluding there was ample evidence Sabin's property was located in an established “service zone” and the town's exaction of a deposit not...