Lowe v. Pima County

• Decision Date: 13 March 2008
• Docket Number: No. 2 CA-CV 2006-0212.,2 CA-CV 2006-0212.
• Citation: 177 P.3d 1214,217 Ariz. 642
• Parties: Roberta LOWE aka Roberta Schugmann and Larry Lowe, wife and husband, Plaintiffs/Appellants, v. PIMA COUNTY, Defendant/Appellee.
• Court: Arizona Court of Appeals

177 P.3d 1214

217 Ariz. 642

Roberta LOWE aka Roberta Schugmann and Larry Lowe, wife and husband, Plaintiffs/Appellants, v. PIMA COUNTY, Defendant/Appellee.

No. 2 CA-CV 2006-0212.

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

March 13, 2008.

Law Office of Mark Rubin, P.L.C. By Mark Rubin, Tucson, Attorney for Plaintiffs/Appellants.

Barbara LaWall, Pima County Attorney By Lesley M. Lukach, Tucson, Attorneys for Defendant/Appellee.

OPINION

PELANDER, Chief Judge.

¶ 1 Pursuant to Arizona's Administrative Review Act, A.R.S. §§ 12-901 through 12-914, plaintiffs/appellants Larry and Roberta Lowe appeal from the superior court's grant of summary judgment in favor of defendant/appellee Pima County. In so ruling, the court effectively affirmed a decision of the Pima County Board of Supervisors, sitting as the Zoning Enforcement Board of Appeals, and also rejected the Lowes' request to quiet title in their favor to certain disputed property based on their claim of adverse possession.

¶ 2 On appeal, the Lowes maintain the superior court erred in granting summary judgment and upholding a zoning citation issued against them for having an unpermitted fence on certain property that, according to the county, the Lowes do not own. They argue the citation is improper because, contrary to the county's position that the fence is situated in a public right-of-way, they own the land the fence is on. Therefore, the Lowes further argue, the trial court erred in denying their cross-motion for summary judgment on their quiet-title claim. The Lowes also contend that, having issued a permit for the fence in 1983, the county should be equitably estopped from now claiming the fence was not properly permitted and citing them for that violation. For the reasons stated below, we affirm the superior court's ruling on the Lowes' estoppel defense but, finding triable issues of fact relating to ownership of the land on which the fence sits, reverse the court's summary judgment in favor of the county and remand the case for further proceedings.

Background

¶ 3 We view the facts and reasonable inferences in the light most favorable to the Lowes, against whom summary judgment was entered. See Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 2, 965 P.2d 47, 49 (App.1998). Frank and Elsa Mark once owned all of the property at issue here. In 1958, they signed and recorded a "Deed of Dedication," in which they "CONVEY[ed] unto THE PUBLIC, for road and utility purposes," a sixty-foot strip of land (the "disputed property") running between what is now the Lowes' parcel and a parcel to the north. Both parcels, as well as two other adjoining parcels to the east, all adjoin the disputed property and were owned by the Marks.

¶ 4 It is undisputed that the Marks subsequently sold all four parcels. The Lowes purchased their property in 2000. The deed to that parcel described the property as, "The North half of the West half of the West half of the Southwest quarter of the Northeast quarter of Section 6, Township 15 South, Range 16 East, Gila and Salt River Base and Meridian, Pima County, Arizona; EXCEPT the North 30 feet thereof."

¶ 5 It is also undisputed that Pima County never expressly accepted the Marks' dedication of the disputed property. According to a non-party resident in the area, a road either in or near the disputed property has existed since 1956. That resident averred below that the county maintained the road from 1971 to 1982, when it posted a "Primitive Road" sign and discontinued maintenance, and that the road constitutes the only access to the Lowes' property. A utility pole is also located on the disputed property.

¶ 6 When the Lowes purchased their property, which is located immediately south of the disputed property, it included a swimming pool. At that time, the fence in question had already been in place for at least seventeen years. In 1983, previous owners of the Lowes' property obtained a permit from the county to construct the pool, and that permit referred to an existing fence. When the Lowes bought the property in 2000, they believed "they owned all of the property within the[] fence, as well as some additional property on the east side of the fence."

¶ 7 In 2004, the Lowes complained to the county about a herd of goats their neighbor to the north was allegedly keeping too close to the property lines. The neighbor then filed a complaint with the county, alleging that the Lowes' fence was actually located within the disputed property the Marks had dedicated as a public right-of-way. The county investigated the complaint, determined the fence was located on the disputed property, and cited the Lowes for constructing and maintaining a fence without a permit, in violation of Pima County Code §§ 18.01.030(E) and 18.95.030(B)(4).¹

¶ 8 After an administrative hearing, a county enforcement hearing officer entered a "Judgement" [sic] in favor of the county, finding the Lowes responsible for having violated Code § 18.01.030(E), ordering them to pay a fine of $750, but suspending the fine for forty-five days to allow them to move the fence and obtain a permit for it. The hearing officer also issued a "Special Memorandum" explaining his ruling. He concluded the 1983 permit covered both the swimming pool and fence, but found the permit application was "deceptive and flawed, and that th[o]se shortcomings were instrumental in the original issuance of the permit for the fence by Pima County." He also stated that he would leave "to other authorities" the Lowes' legal argument "that the alleged right-of-way dedication to Pima County was never, in fact, consummated."

¶ 9 The Lowes appealed the hearing officer's decision to the Pima County Board of Supervisors, sitting as the Zoning Enforcement Board of Appeals. See A.R.S. § 11-808(G). The Board upheld the hearing officer's "decision that the fence was constructed without a permit and maintained without a valid Zoning Permit." The Lowes then appealed to superior court pursuant to A.R.S. §§ 12-904 and 12-905. See also § 11-808(G). In their complaint, the Lowes alleged in count one that the hearing officer's decision, as affirmed by the Board, was "not supported by substantial evidence, is contrary to law, is arbitrary and capricious and an abuse of . . . discretion." In count two of their complaint, the Lowes sought a declaratory judgment to quiet title, claiming they had acquired ownership of the disputed property "as against all others," including the Marks, by adverse possession.²

¶ 10 On the parties' cross-motions for summary judgment, the superior court granted summary judgment in favor of the county on both counts of the complaint. In rejecting the Lowes' equitable estoppel argument, the court found "no inconsistency" in the county's position because "[t]here is no evidence that Pima County had knowledge of the problem with the fence when it issued the permit." It also rejected the Lowes' adverse possession claim, ruling that the public had properly accepted the Marks' dedication. This appeal followed.³

Discussion

I. Ownership of disputed property

¶ 11 The Lowes maintain the superior court erred by failing to enter a default judgment in their favor and against the Marks. See n. 2, supra. They contend they "own the disputed property, subject to no claim in favor of Pima County or the public." According to the Lowes, the county never properly accepted the Marks' dedication and thereafter they adversely possessed the property from the Marks. See A.R.S. § 12-521(A)(1) ("`Adverse possession' means an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another."); A.R.S. § 12-526(A) (adverse possession requires cultivation, use, and enjoyment of property for ten years); see also Tenney v. Luplow, 103 Ariz. 363, 366-68, 442 P.2d 107, 110-12 (1968); cf. Geronimo Hotel, Inc. v. City of Tucson, 121 Ariz. 446, 448, 591 P.2d 72, 74 (App.1978) (where city unconstitutionally seized strip of land, "there was no public roadway immune from adverse possession").

¶ 12 We address this question of ownership first because, if the Lowes' predecessors-in-interest had adversely possessed the disputed property by 1983, the record suggests the 1983 permit for the fence would be valid, making an estoppel defense unnecessary.⁴ See A.R.S. § 12-521(B). And, assuming the Marks' attempted dedication was not properly accepted, if the property were adversely possessed after the 1983 permit had been issued, the fence would now be located on the Lowes' property, not in a public right-of-way. That, in turn, would cast doubt on, if not render unnecessary, the hearing officer's requirement that the Lowes bring the fence into compliance by obtaining a new permit "showing a revised location of the fence such that it is on [their] property in its entirety" and by "physically relocat[ing] the fence."

¶ 13 In granting summary judgment in favor of the county on the Lowes' declaratory judgment/quiet-title claim, the superior court stated:

It is undisputed that the Marks subsequently transferred the property that plaintiffs now own, as well as three other parcels referenced in the deed, expressly excluding from those conveyances the property designated in the deed of dedication. Lot purchasers were entitled to re[]ly on the deed of dedication to create an easement for ingress and egress to their properties. The sale of lots after recordation of the deed constitutes acceptance by the public under the rationale of Pleak v. Entrada Property Owners' Association, 207 Ariz. 418, 87 P.3d 831 (2004).

Thus, the court implicitly ruled that the Lowes could not adversely possess the disputed property because the public had accepted it. See Bigler v. Graham County, 128 Ariz. 474, 476, 626 P.2d 1106, 1108 (App.1981) (adverse possession generally does not run against government).⁵

¶ 14 The Lowes argue that "[t]he trial court missed the...