Root v. City of Vista

• Decision Date: 23 February 2023
• Docket Number: 2 CA-CV 2021-0130
• Parties: Amanda Root; Granville and Georgia Montgomery, a married couple; Charles Parrish; and Charles Parrish, on behalf of Robert Dreeszen, Plaintiffs/Appellants, v. City of Sierra Vista, Defendant/Appellee.
• Court: Arizona Court of Appeals

Amanda Root; Granville and Georgia Montgomery, a married couple; Charles Parrish; and Charles Parrish, on behalf of Robert Dreeszen, Plaintiffs/Appellants, v. City of Sierra Vista, Defendant/Appellee.

No. 2 CA-CV 2021-0130

Court of Appeals of Arizona, Second Division

February 23, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Cochise County No. CV202100078 The Honorable David Thorn, Judge

COUNSEL

Institute for Justice By Paul V. Avelar, Tempe and John Wrench, Pro Hac Vice, Arlington, Virginia Counsel for Plaintiffs/Appellants

Berke Law Firm PLLC, Phoenix By Lori V. Berke, Stacey F. Gottlieb and Jody C. Corbett Counsel for Defendant/Appellee

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom concurred and from which Judge Sklar dissented.

MEMORANDUM DECISION

VÁSQUE Z, Chief Judge:

¶1 In this action for declaratory and injunctive relief, Amanda Root, Granville and Georgia Montgomery, Robert Dreeszen, and Charles Parrish (collectively, "Residents") appeal the trial court's dismissal of their complaint against the City of Sierra Vista, alleging the City's zoning restrictions violated their constitutional rights. The Arizona Supreme Court vacated our memorandum decision dismissing the appeal for lack of jurisdiction and remanded the matter to this court for reconsideration in light of its opinion in Mills v. Arizona Board of Technical Registration, 253 Ariz. 415 (2022). After further consideration, we affirm the trial court's dismissal.

Factual and Procedural Background

¶2 In July 2020, two of the Residents received notices from the City informing them that they were violating zoning restrictions for living in recreational vehicles (RVs) on land zoned "Manufactured Home Residence." The notices provided that if they did not remove the RVs from the properties within thirty days, they would be "subject to further enforcement action." In August 2020, the City stayed enforcement while it considered potentially amending the zoning restrictions to allow RVs. By February 2021, the effort to amend the City's zoning restrictions for RVs was unsuccessful, but the City agreed to suspend evictions until the COVID-19-related state of emergency ended.

¶3 That same month, the Residents sued the City, claiming the zoning restrictions deprived them of property without substantive or procedural due process, denied their right to equal privileges or immunities, and violated the separation of powers doctrine, all under the Arizona Constitution. The City filed a motion to dismiss, arguing the Residents lacked standing, their claims had no merit, and they had failed to submit a notice of claim. The trial court granted the City's motion to dismiss, determining that the Residents' claims were not ripe because "the City hasn't done anything . . . to harm them at this point." The court dismissed the case without prejudice stating the Residents could "come back" and "try again" if the City began enforcement action. This appeal followed.

¶4 In our prior memorandum decision, we dismissed the appeal for lack of appellate jurisdiction because the challenged judgment was non-appealable. See Canyon Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, ¶ 14 (App. 2010). The Residents then filed a successful petition for review to the Arizona Supreme Court, which vacated our prior memorandum decision and directed us to reconsider this appeal in light of Mills, 253 Ariz. 415. We now turn to the merits of the Residents' claims.^[1]

Discussion

¶5 In Mills, our supreme court considered whether the doctrines of exhaustion of administrative remedies, standing and ripeness bar the filing of a declaratory relief action raising constitutional challenges to certain statutes governing the Arizona Board of Technical Registration. 253 Ariz. 415, ¶¶ 1-2. The controversy in that case arose from a dispute between Mills, an engineer, and the Board, about whether Mills was required to register with the Board to perform his work. Id. ¶ 1. After receiving a customer complaint, the Board investigated and determined Mills was violating A.R.S. §§ 32-141 and 32-145, which require those engaging in engineering to register with the Board. Id. ¶ 3.

¶6 The Board offered, and Mills refused to sign, two consent agreements requiring him to stop work, agree he had violated the law, and pay a fine. Id. ¶¶ 4-5. Mills then filed a complaint in the trial court seeking declaratory and injunctive relief. Id. ¶ 7. On the Board's motion, the court dismissed the complaint for lack of subject matter jurisdiction based on Mills's failure to exhaust his administrative remedies, lack of standing, and ripeness. Id. ¶ 8. The court of appeals upheld the dismissal. Id. However, the supreme court reversed, concluding that the trial court erred in dismissing Mills's complaint because he did not have a "prescribed administrative remedy to pursue by which to raise his constitutional claims." Id. ¶ 22. It further concluded that three of his four claims were justiciable because they involved an actual controversy that did not require him to "await prosecution before bringing [his] declaratory judgment complaint." Id. ¶¶ 29-30.

¶7 In this case, the trial court dismissed the Residents' complaint for essentially the same reason as the trial court in Mills. But there is a notable difference between this case and Mills-unlike Mills, the Residents have access to a statutorily prescribed administrative remedy. See A.R.S. §§ 9-462(A)(1), 9-462.06; City of Sierra Vista, Ariz., Dev. Code §§ 151.30.003, 151.30.008, 151.30.012, 151.30.015 ("Dev. Code"). When a statute establishes an administrative review process, judicial review is not available until the administrative process has run its course. Minor v. Cochise County, 125 Ariz. 170, 172 (1980). Specifically in the zoning context, "trial courts generally lack jurisdiction to review challenges to a zoning administrator's decision that have not been appealed to the board of adjustment." Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, ¶ 14 (2013); see § 9-462.06(G). Moreover, the administrative process must be scrupulously followed when the administrative agency has the authority to grant the proper remedies. Mills, 253 Ariz. 415, ¶ 14. That did not happen here.

¶8 Our dissenting colleague maintains the City has waived the defense of failure to exhaust administrative remedies because it did not expressly raise it in its motion to dismiss below. We disagree. The defense most certainly is waived if it is raised after "the trial court ha[s] already reached a decision on the merits." Medina v. Ariz. Dept of Transp., 185 Ariz. 414, 418 (App. 1995); cf. Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, ¶ 16 (2021) (suggesting affirmative defenses need not be raised in motions to dismiss to be preserved on appeal). But "the failure to raise an affirmative defense by motion will not result in a waiver as long as it is interposed in the answer." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1277 (4th ed. 2022). Here, the Residents' claims were dismissed before the City filed its answer.

¶9 Even in those situations where a defense has not been expressly raised, we consider to what extent the trial court had the "opportunity to address all issues on their merits." Cont'l Lighting & Contracting, Inc. v. Premier Grading & Util, LLC, 227 Ariz. 382, ¶ 12 (App. 2011). In Continental Lighting & Contracting, the defendant raised a legal theory in response to the other parties' cross-motions for summary judgment. Id. ¶ 13. Neither opposing party responded to the merits of that argument, nor did the court address it in its ruling on the summary judgment motions. Id. Nevertheless, we concluded the defendant had sufficiently preserved the argument for appeal because it asked the court to clarify whether it had refused to consider its argument or whether it had rejected it. Id. ¶¶ 13-14. This gave the court an "opportunity to rule on the legal theory . . . and [it] apparently did so." Id. ¶ 14.

¶10 Here, the City argued both in its motion to dismiss and at the hearing that the Residents' claims were "premature." See In re Est. of Stewart, 230 Ariz. 480, ¶ 12 (App. 2012) (ripeness principle "prevents a court from rendering a premature judgment" (quoting Winkle v. City of Tucson, 190 Ariz. 413, 415 (1997)); U S W. Commc'ns, Inc. v. Ariz. Corp. Comm'n, 197 Ariz. 16, ¶ 9 (App. 1999) ("If a party has not exhausted its administrative remedies, the controversy is not ripe for review . . . ."); see also City of Phoenix v. Fields, 219 Ariz. 568, ¶ 28 (2009) (supreme court assumed without deciding that answer generally stating plaintiffs had "failed to exhaust their administrative, statutory, and/or contractual remedies" was sufficient to preserve notice of claim defense). But see Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, n.3 (App. 2011) ("The trial court cannot be expected to glean a party's arguments from a review of the evidence; the party must articulate its legal arguments.").

¶11 Moreover, the trial court expressly raised the issue at the hearing, and the Residents addressed it directly. Notably although the Residents pointed out that the City had not argued the failure to exhaust administrative remedies in its brief, they did not object or request additional time to respond when the court raised it. Thus, neither party here claimed surprise and the parties and the court all had an opportunity to address the issue on its merits. See Cont'l Lighting & Contracting, Inc., 227 Ariz. 382, ¶ 12. In any event, we will affirm the trial court's decision if it was legally correct for any reason. Spence v. Bacal, 243 Ariz....