Home Builders Ass'n of Cent. Ariz. v. Kard

• Decision Date: 08 July 2008
• Docket Number: No. 1 CA-CV 07-0629.,1 CA-CV 07-0629.
• Citation: 199 P.3d 629,219 Ariz. 374
• Parties: HOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA, an Arizona non-profit corporation, Plaintiff-Appellant, v. Robert KARD, the Maricopa County Air Quality Control Officer; The Maricopa County Air Quality Department, the Maricopa County Air Pollution Control District; and Maricopa County, a political subdivision of the State of Arizona, Defendants-Appellees.
• Court: Arizona Court of Appeals

199 P.3d 629

219 Ariz. 374

HOME BUILDERS ASSOCIATION OF CENTRAL ARIZONA, an Arizona non-profit corporation, Plaintiff-Appellant, v.Robert KARD, the Maricopa County Air Quality ControlOfficer; The Maricopa County Air Quality Department, the Maricopa County Air Pollution Control District; and Maricopa County, a political subdivision of the State of Arizona, Defendants-Appellees.

No. 1 CA-CV 07-0629.

Court of Appeals of Arizona, Division 1, Department D.

July 8, 2008.

As Amended July 10, 2008.

Review Denied January 6, 2009.

Lewis and Roca LLP, by Richard W. Tobin, II, Albert H. Acken, Phoenix, Attorneys for Appellant.

Gust Rosenfeld, PLC, by Richard A. Segal, Richard B. Hood, Craig A. McCarthy, Phoenix, Attorneys for Appellees.

OPINION

WEISBERG, Judge.

¶ 1Home Builders Association of Central Arizona("Home Builders" or "the Association") appeals from the superior court's order dismissing its special action complaint for lack of standing.For reasons that follow, we affirm the judgment with respect to Home Builders' claims for damages and injunctive relief but reverse as to its request for declaratory relief.

BACKGROUND

¶ 2Maricopa County Air Quality Control Department("MCAQCD") and Maricopa County Air Quality Control OfficerRobert Kard(collectively "the Defendants") are charged with enforcing air quality regulations.SeeAriz.Rev.Stat.("A.R.S.")§§ 49-473(2005), 49-475 (2005).The regulations at issue require permits for dust-generating operations such as digging and earth-moving.SeeMaricopa CountyRule 200 § 305;Maricopa CountyRule 280 §§ 310.

¶ 3 Home Builders is a non-profit Arizona corporation serving the interests of more than nine hundred members in the residential construction and development industry.Its complaint describes the Association's members as "home builders, suppliers and subcontractors, banks, power and communications utilities, title and mortgage insurance companies, real estate developers and other businesses in central Arizona involved in and dependent upon the home building industry."The corporation is not a contractor, subcontractor, or developer and does not claim to directly participate in building construction or development.

¶ 4 Home Builders' complaint alleged that the Defendants' interpretation and implementation of A.R.S. §§ 49-471.03(2005), 41-1009(A)(4)(2004), 49-488 (2005) and Maricopa CountyRule 100 § 105 would deprive its members of the opportunity to have authorized representatives be present during on-site inspections.The complaint also alleged that MCAQCD failed to provide adequate notice to Home Builders' members of the status of any agency action, to consider MCAQCD's own noncompliance with inspection statutes as grounds for reducing penalties or fines, and to allow permit holders to correct deficiencies before issuing Notices of Violation and Notices to Comply, thereby violating A.R.S. § 49-471.03(2005).It further alleged that MCAQCD exceeded its authority under A.R.S. § 49-513 by impermissibly considering a company's size when assessing penalties, did not adopt its penalty policy in accordance with the A.R.S. § 49-471(2005) rulemaking procedures, violated Maricopa CountyRule 200 § 305 by issuing new earthmoving permits before the expiration date of prior permits, and violated Maricopa County Rule 280 by seeking duplicative penalties under A.R.S. § 49-513(2005).

¶ 5 The complaint asked that the superior court direct the Defendants to comply with these statutes and rules as interpreted in the complaint and to declare the challenged Penalty Policy void.It also asked that the court order the Defendants to refund excess permit fees and civil penalties and to pay attorneys' fees and costs to Home Builders.

¶ 6The Defendants moved to dismiss the complaint based upon Home Builders' lack of standing, failure to state a claim, requests for an advisory opinion and an illegal injunction, failure to comply with the notice of claim statute, and improper request for special action relief.After briefing and oral argument, the superior court accepted special action jurisdiction and dismissed the complaint solely for lack of standing.This appeal followed.We have jurisdiction pursuant to A.R.S. § 12-2101(B), (F)(2)(2003).

DISCUSSION

The Association's Standing Re: Damages and Injunctive Relief

¶ 7 In reviewing a case brought as a special action, we"conduct a bifurcated review.[We] must first determine whether the superior court in its discretion assumed jurisdiction of the merits of the claim.If so, then the determination of the merits may properly be reviewed."Bilagody v. Thorneycroft,125 Ariz. 88, 92, 607 P.2d 965, 969(App.1979).The superior court accepted jurisdiction and thus we may proceed to consider the merits.

¶ 8 According to the Defendants, the superior court properly dismissed the complaint because Home Builders did not demonstrate standing to assert its members' claims in a representational capacity.Standing is a question of law subject to de novo review.Robert Schalkenbach Found. v. Lincoln Found., Inc.,208 Ariz. 176, 180, ¶ 15, 91 P.3d 1019, 1023(App.2004).

¶ 9We first observe that the question of standing raises no constitutional concerns here because, unlike the United States Constitution, the Arizona Constitution contains no express case or controversy requirement.Armory Park Neighborhood Ass'n v. Episcopal Cmty. Svcs.,148 Ariz. 1, 6, 712 P.2d 914, 919(1985);seeAriz. Const. art. VI.Instead, standing for our purposes concerns "prudential or judicial restraint" to ensure that we do not issue advisory opinions, address moot cases, or deal with issues that have not been fully developed by true adversaries.SeeArmory Park,148 Ariz. at 6, 712 P.2d at 919.

¶ 10 This judicial restraint has led Arizona courts to impose a "rigorous" standing requirement.Fernandez v. Takata Seat Belts, Inc.,210 Ariz. 138, 140, ¶ 6, 108 P.3d 917, 919(2005).In general, a party establishes standing by showing a personal, palpable injury.Bennett v. Napolitano,206 Ariz. 520, 524, ¶ 16, 81 P.3d 311, 315(2003).But when an entity asserts standing in a representative capacity, the court must determine "whether, given all the circumstances in the case, the association has a legitimate interest in an actual controversy involving its members and whether judicial economy and administration will be promoted by allowing representational appearance."Armory Park,148 Ariz. at 6, 712 P.2d at 919.A court also may consider relevant factors identified by the United States Supreme Court, which are whether: (a) the association's "members would have standing to sue in their own right; (b) the interests ... the association seeks to protect are relevant to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members."Id.(citingWarth v. Seldin,422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343(1975);Hunt v. Washington State Apple Adver. Comm'n,432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383(1977)).

¶ 11 Home Builders' complaint in this case is similar to those in Warth, Lujan v. Defenders of Wildlife,504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992), andTakata.In all three of those cases, the courts found a lack of standing.

¶ 12 In Warth, various organizations and individuals sued a town and town officials, asserting that a zoning ordinance effectively excluded persons of low and moderate income.422 U.S. at 493, 95 S.Ct. 2197.A local home builders association, which included a number of area residential construction firms, sought to intervene, id. at 497, 95 S.Ct. 2197, but the district court dismissed its complaint for lack of standing.Id. at 498, 95 S.Ct. 2197.

¶ 13 The United States Supreme Court affirmed.It explained that an organization like the association there might seek relief on its own behalf and assert the rights of its members, provided that such association alleged that "its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit."Id. at 511, 95 S.Ct. 2197(emphasis added).In addition, the Court observed that whether an association had standing "depend[ed] in substantial measure on the nature of the relief sought" and that in most cases in which the Court had found standing, the subject association had sought declarative or injunctive relief.Id. at 515, 95 S.Ct. 2197.It also emphasized that the nature of the claim could not make participation of each injured party indispensable to the proper resolution of the suit.Id.

¶ 14 In Warth, the association had alleged that the zoning ordinance and the denials of variances "deprived some of its members of `substantial business opportunities and profits.'"Id. at 514-15, 95 S.Ct. 2197.The injury from lost profits, however, was "peculiar to [each] individual member,"id. at 515, 95 S.Ct. 2197, and thus the alleged damage was neither "common to the entire membership nor shared by all in equal degree [but] ... the fact and extent of injury would require individualized proof."Id. at 515-16, 95 S.Ct. 2197.The Court therefore held that the association lacked standing to claim damages on behalf of its members.Id. at 516, 95 S.Ct. 2197.

¶ 15 Here, Home Builders similarly seeks damages based on allegations that the defendants have collected excess permit fees and have improperly imposed civil penalties based upon the size of each sanctioned entity.These claims would require individualized proof, which Home Builders concedes in its reply brief by noting that its members' testimony "may indeed be relevant" and that the case will require "individualized calculations for each affected member."Such mini-adjudications to calculate the various claims would not advance judicial economy, one of the premises for allowing representational standing.We therefore...