Ranch 57 v. City of Yuma, s. 1

• Decision Date: 02 September 1986
• Docket Number: CA-CIV,Nos. 1,s. 1
• Citation: 152 Ariz. 218,731 P.2d 113
• Parties: RANCH 57, an Arizona partnership, Plaintiff-Appellant, v. The CITY OF YUMA, a municipal corporation, Defendant-Appellee. RANCH 57, an Arizona partnership, Plaintiff-Appellant, v. The COUNTY OF YUMA, a political subdivision of the State of Arizona, Defendant-Appellee. 8150, 1 8631.
• Court: Arizona Court of Appeals

Page 113

731 P.2d 113

152 Ariz. 218

RANCH 57, an Arizona partnership, Plaintiff-Appellant, v. The CITY OF YUMA, a municipal corporation, Defendant-Appellee.

RANCH 57, an Arizona partnership, Plaintiff-Appellant, v. The COUNTY OF YUMA, a political subdivision of the State of Arizona, Defendant-Appellee.

Nos. 1 CA-CIV 8150, 1 CA-CIV 8631.

Court of Appeals of Arizona Division 1, Department D.

Sept. 2, 1986.

Review Denied Jan. 8, 1987.

[152 Ariz. 220] Bonnett, Fairbourn & Friedman, P.C. by Francis J. Balint, Jr., Jerry C. Bonnett, Robert J. Spurlock, Phoenix, for plaintiff-appellant Ranch 57.

Jennings, Strouss & Salmon by Margaret D. Blaze and John B. Weldon, Jr., Phoenix, Maureen R. George, Yuma, for defendant-appellee City of Yuma.

Westover, Choules & Shadle, P.C. by William A. Nebeker and Wade Noble, Yuma, for defendant-appellee County of Yuma.

OPINION

MEYERSON, Judge.

I. STATEMENT OF FACTS

This matter arises out of separate appeals by plaintiff-appellant Ranch 57 from summary judgments granted in favor of defendant-appellee City of Yuma (City) and defendant-appellee County of Yuma (County). Due to the similarity of issues presented on appeal, we have consolidated the cases.

Ranch 57 is a partnership which owns property adjacent to the northeast end of two runways for the Yuma International Airport and the Marine Corps Air Station. Prior to the enactment of the zoning ordinances in question, Ranch 57's property was zoned to permit industrial or commercial development. Ranch 57 planned to develop the land for commercial ventures that included a laundromat, a fast-food restaurant, an auto and trailor parts store, and expansion of the existing gasoline station and camera store. Ranch 57 had also invested $15,000 toward the development of an improvement district to bring water and sewer services to the property. Prior to the passage of the zoning ordinances, Ranch 57 had planted citrus trees on the property. Ranch 57 asserts that the citrus trees were planted because excess stock existed from a nursery that was being operated on the property.

In July, 1976, Ranch 57 was informed that the property was going to be condemned for airport purposes. The federal government began negotiations for the purchase of the property in August, 1979. The complaint alleges that the federal government formally instituted condemnation proceedings in January, 1982, and has, in fact, now taken possession of the property. The value of the property for condemnation purposes will vary depending upon the outcome of the present litigation.

On June 20, 1979, the City adopted Ordinance No. 1837. Under the ordinance, clear zones were established for land adjacent to the airport runways. The ordinance prohibited any new uses of property within a clear zone except for non-livestock agricultural uses. No new structures were permitted. However, the ordinance did not affect the property of Ranch 57 until May 1, 1981, when the City annexed land which included the property owned by Ranch 57.

On August 20, 1979, the County adopted Article VII to the County Code which also established clear zones for the land adjacent to the airport runways, including the property owned by Ranch 57. Under Article VII, no permanent structures were permitted in the clear zone except for certain fencing. Article VII does not allow for any residential, commercial or recreational development on property located within a clear zone.

On April 26, 1984, Ranch 57 filed a complaint in Yuma County Superior Court against the City and the County alleging that the zoning ordinances resulted in an unconstitutional taking of private property without just compensation. On June 8, 1984, the City filed a motion to dismiss. The superior court treated the motion as one for summary judgment and granted judgment in favor of the City, finding that Ordinance No. 1837 was a valid exercise of the police power and that there had been no taking of Ranch 57's property. On January 9, 1985, the County filed its motion to dismiss. The superior court also treated this motion as one for summary judgment. The court once again ruled in favor of the governmental defendant. Ranch 57 timely appealed both adverse judgments.

Ranch 57 advances several arguments for reversal. First, Ranch 57 argues that both zoning ordinances are invalid exercises of the police power. Second, Ranch 57 argues that the ordinances create an unconstitutional taking of private property without just compensation. Ranch 57 argues that if a taking is found to have occurred, it has established a claim for inverse condemnation and compensation is required. The governmental defendants dispute Ranch 57's contentions and, in addition, have raised a variety of procedural defenses. Of these, we find it necessary to consider only the statute of limitations.

II. STATUTE OF LIMITATIONS

Both the City and the County assert that the applicable statute of limitations bars Ranch 57's constitutional claims. We are called upon to decide which one of the many assertedly applicable statutes applies to this case. During the course of this litigation, the parties have argued that the following statutes of limitations apply: A.R.S. §§ 12-523, 28-1868, 12-542(3), 12-526(A), and 12-550. Each of these shall be considered in turn.

On the face of A.R.S. § 12-523, this statute is not applicable to the instant case. It provides that "[a]n action to recover real property from a person in peaceable and adverse possession under title or color of title shall be commenced within three years after the cause of action accrues." Ranch 57's action is certainly not one to recover real property from either of the governmental defendants. Thus, A.R.S. § 12-523 is not applicable.

Nor is A.R.S. § 28-1868 applicable to this case. It provides:

An action brought to recover possession of or to clear title to real property claimed by the state, or any legal subdivision thereof, as a public highway or airport, or an action brought to recover compensation or damage for property taken or damaged in or for the construction of a public highway or airport, shall be commenced within two years after the cause of action has accrued and not afterwards.

The statute is divided into two independent clauses, either of which will trigger its application. The first clause is not applicable because Ranch 57 is not suing the City or the County to recover possession (or to clear title) of the property in question. The second clause is not applicable because Ranch 57 did not institute this suit as a result of construction to either the Yuma International Airport or the Marine Corps Air Station.

A.R.S. § 12-542(3) is a two-year statute of limitations applicable to actions for "trespass for injury done to the estate or the property of another." This statute applies to suits involving injury to property, Hall v. Romero, 141 Ariz. 120, 123, 685 P.2d 757, 760 (App.1984), as a result of a tortious or negligent act. Sato v. Van Denburgh, 123 Ariz. 225, 227, 599 P.2d 181, 183 (1979). Trespass is any unauthorized physical presence on another's property. State ex rel. Purcell v. Superior Court, 111 Ariz. 582, 584, 535 P.2d 1299, 1301 (1975). In the instant case, the injury to Ranch 57's property is alleged to have occurred by the passage of the zoning ordinances and not by the intentional or negligent physical presence of the City or County. Thus, A.R.S. § 12-542(3) is not applicable.

Ranch 57 argues that A.R.S. § 12-526(A), the ten-year statute of limitations for adverse possession cases, is applicable. This statute provides:

A person who has a cause of action for recovery of any lands ... from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action thereon within ten years after the cause of action accrues, and not afterward.

Ranch 57 cites several cases from other jurisdictions where courts have applied adverse possession statutes of limitations in inverse condemnation actions. See, e.g., Krambeck v. City of Gretna, 198 Neb. 608 254 N.W.2d 691 (1977); Sundell v. Town of New London, 119 N.H. 839, 409 A.2d 1315 (1979); see generally Annot., 26 A.L.R. 4th 68 (1983). The cases cited by Ranch 57 are factually distinguishable from the instant case. In all the cases cited, an act of the government caused some physical invasion of the plaintiff's property or some physical interference with the use of the property. Cf. Busby v. State, 101 Ariz. 388, 420 P.2d 173 (1966). Here, neither the City nor the County physically interfered with Ranch 57's use of its property.

Thus, we conclude that none of the above-mentioned statutes are applicable. We have also found no other prescribed statute for claims such as are presented by Ranch 57. Accordingly, we hold that A.R.S. § 12-550 is applicable to the instant case. A.R.S. § 12-550 is applicable to "[a]ctions other than for recovery of real property for which no limitation is otherwise prescribed." Such actions "shall be brought within four years after the cause of action accrues, and not afterward." Id.

Ranch 57 further argues that because the taking of property is a question of constitutional magnitude, the mere passage of time should not in any way serve to bar the cause of action. But the United States Supreme Court has held that even the vindication of constitutional rights may be time-barred where the application of a state statute of limitations is not inconsistent with federal policy. Board of Regents v. Tomanio, 446 U.S. 478, 485-93, 100 S.Ct. 1790, 1794-99, 64 L.Ed.2d 440, 447-53 (1980). On point is the Illinois Supreme Court decision in Horn v. City of Chicago, 403 Ill. 549, 87 N.E.2d 642 (1949). In Horn, the plaintiffs brought an inverse condemnation action based upon the construction of a viaduct by the City of Chicago. Plaintiffs alleged that the viaduct interfered with and destroyed their easements of light and air and their ingress and egress to and from...