Southwest Soil Remediation v. Tucson

• Citation: 201 Ariz. 438,36 P.3d 1208
• Decision Date: 20 December 2001
• Docket Number: No. 2 CA-CV 00-0219.,2 CA-CV 00-0219.
• Parties: SOUTHWEST SOIL REMEDIATION, INC., an Arizona corporation, Plaintiff/Appellant, v. CITY OF TUCSON, a municipal corporation; Walter Tellez, Zoning Administrator; Paul Swift, Acting Director, Development Services, as officials acting for the City of Tucson, Defendants/Appellees. Southwest Soil Remediation, Inc., an Arizona corporation, Plaintiff/Appellant, v. City of Tucson, a municipal corporation; George Miller and Jane Doe Miller, husband and wife; Steve Leal and Jane Doe Leal, husband and wife; Jose J. Ibarra and Jane Doe Ibarra, husband and wife; Janet Marcus and John Doe Marcus, wife and husband; Michael J. Crawford; Shirley C. Scott and John Doe Scott, wife and husband; Molly E. McKasson and John Doe McKasson, wife and husband; Luis Gutierrez and Jane Doe Gutierrez, husband and wife; Bruce Wheeler and Jane Doe Wheeler, husband and wife; Michael W.L. McCrory and Jane Doe McCrory, husband and wife; Thomas J. Berning and Jane Doe Berning, husband and wife, Defendants/Appellees.
• Court: Court of Appeals of Arizona

36 P.3d 1208

201 Ariz. 438

SOUTHWEST SOIL REMEDIATION, INC., an Arizona corporation, Plaintiff/Appellant, v. CITY OF TUCSON, a municipal corporation; Walter Tellez, Zoning Administrator; Paul Swift, Acting Director, Development Services, as officials acting for the City of Tucson, Defendants/Appellees.

Southwest Soil Remediation, Inc., an Arizona corporation, Plaintiff/Appellant, v. City of Tucson, a municipal corporation; George Miller and Jane Doe Miller, husband and wife; Steve Leal and Jane Doe Leal, husband and wife; Jose J. Ibarra and Jane Doe Ibarra, husband and wife; Janet Marcus and John Doe Marcus, wife and husband; Michael J. Crawford; Shirley C. Scott and John Doe Scott, wife and husband; Molly E. McKasson and John Doe McKasson, wife and husband; Luis Gutierrez and Jane Doe Gutierrez, husband and wife; Bruce Wheeler and Jane Doe Wheeler, husband and wife; Michael W.L. McCrory and Jane Doe McCrory, husband and wife; Thomas J. Berning and Jane Doe Berning, husband and wife, Defendants/Appellees.

No. -0219.

Court of Appeals of Arizona.

December 20, 2001.

Stubbs & Schubart, P.C., by G. Lawrence Schubart and Damian M. Fellows, Tucson, for plaintiff/appellant.

Mesch, Clark & Rothschild, P.C., by Richard Davis and Jeanette M. Boulet, Tucson, for defendants/appellees.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Southwest Soil Remediation, Inc., (SSR) appeals from the trial court's ruling on its supplemental special action complaint against appellees the City of Tucson and various city officials (collectively, the City), which alleged the City had improperly refused to issue a building permit for SSR's soil storage facility. After a bench trial, the trial court entered judgment in favor of the City, finding that, by not appealing the refusal to the Board of Adjustment, SSR had failed to exhaust its administrative remedies and to seek recourse from the agency with primary jurisdiction. Alternatively, the court found the City had not improperly denied the permit. Because we agree that SSR failed to follow the proper administrative review procedure, we affirm.

BACKGROUND

¶ 2 We view the facts in the light most favorable to sustaining the trial court's judgment. Alliance Marana v. Groseclose, 191 Ariz. 287, 288, 955 P.2d 43, 44 (App.1997). In October 1994, SSR, a business engaged in recycling petroleum-contaminated soil, notified the City of its intention to purchase an industrial lot within the City for a soil recycling plant and requested the City's assurances that the City's Zoning Code would allow operation of the plant. In response, the City's zoning administrator wrote SSR a letter, stating that the lot zoning "would be appropriate for the [recycling plant]" and expressing the opinion that the recycling plant was "not hazardous to the health, safety, and general welfare of the public." SSR purchased the lot.

¶ 3 In 1995, the City adopted a Land Use Code, effective July 1, 1995, to replace its Zoning Code. The City also adopted a Transition Ordinance, which provided that property owners could proceed with development under the Zoning Code for a limited time by filing a letter of intent with the City by October 1, 1995, filing a "completed site plan" by January 1, 1996, and obtaining "issued permits for the development" within one year of the letter of intent, but no later than October 1, 1996. The Transition Ordinance also allowed all "Board of Adjustment cases" filed prior to July 1, 1995, to proceed under the Zoning Code.

¶ 4 In June 1995, a business neighboring SSR's lot wished to appeal to the Board of Adjustment the zoning administrator's 1994 opinion that SSR's development was safe. However, because the deadline to appeal the opinion had passed, in keeping with customary practice, the zoning administrator reissued the opinion that SSR's operation was safe, thus enabling the neighboring business to appeal the decision to the Board in July 1995. Nonetheless, the Board of Adjustment upheld the zoning administrator's decision in August 1995.

¶ 5 Also in June 1995, SSR submitted the development plan for the recycling plant and on July 7, 1995, pursuant to the Transition Ordinance, submitted its letter of intent to proceed under the Zoning Code. A City zoning official responded to the letter of intent, informing SSR that development of the recycling plant could continue under the Zoning Code so long as SSR applied for its building permits by January 1, 1996, and secured the permits by July 7, 1996. The official also told SSR that, after these deadlines, the Land Use Code would apply. ¶ 6 In September 1995, the City approved SSR's development plan. Notwithstanding this approval and their earlier assurances, in October 1995, after a "study session" to address citizen concerns about SSR's proposed plant, the City's mayor and council voted to stop the "process, effort and program" of SSR's development.

¶ 7 In November 1995, SSR filed a special action in superior court requesting the court to order the City "to issue all requisite permits and to process all plans necessary for such approval." The City then passed a resolution stating that SSR could receive permits so long as it complied with "all legal requirements for issuing permits." In December 1995, SSR applied for grading, parking, utilities, and modular office permits. The City approved SSR's requested permits but did not issue them because SSR had not obtained air quality permits. SSR then moved for summary judgment.

¶ 8 After an order to show cause hearing and argument on the summary judgment motion, the trial court granted summary judgment in favor of SSR, but the City disputed SSR's proposed order, contending it was too broad. The parties thereafter agreed to a partial judgment, which was entered in June 1996, with both parties retaining the right to return to court for clarification or to appeal a final judgment. This partial judgment ordered the City "to issue all pertinent and necessary permits ... for [SSR] to proceed with the grading, installation of utilities, location of the modular office building, and the associated paving for sidewalks, curbing, and the parking lot." The City immediately issued the permits specified in the partial judgment.

¶ 9 However, SSR could not complete development of the recycling plant without obtaining a permit for its soil storage building. SSR could have applied for that permit at any time after its development plan was approved. And, under the City's interpretation of the Transition Ordinance, it was required to do so before January 1, 1996. But SSR and the City assumed that SSR was required to obtain an air quality permit from another agency before the City could actually issue a building permit for the soil storage facility. Although the air quality permit became effective on July 29, 1996, SSR did not submit an application for the storage facility building permit until September 1996. In October, the City's zoning administrator informed SSR that, because of its failure to meet the July 7, 1996, deadline, SSR had failed to satisfy the Transition Ordinance requirements. The zoning administrator also informed SSR that it could appeal the decision to the Board of Adjustment.

¶ 10 The City thereafter began processing SSR's application for the soil storage building permit under the Land Use Code rather than the Zoning Code. Although the plans for the storage facility satisfied building code criteria, according to the parties the facility was a conditional use under the Land Use Code rather than a permitted use and was thus subject to approval by the City's mayor and council. SSR did not pursue conditional use approval.

¶ 11 Rather than seeking administrative relief before the Board, SSR filed a new complaint in superior court in October 1996, this time alleging violations of 42 U.S.C. § 1983, civil conspiracy, interference with contract, and inverse temporary taking. The trial court then granted SSR leave to file a special action supplemental complaint, which alleged that the City's zoning administrator had improperly failed to consider SSR's storage facility building permit under the Zoning Code rather than the Land Use Code. The trial court consolidated SSR's special action with the § 1983 action. After a bench trial on the supplemental complaint issue in May 1999, the trial court entered judgment against SSR, finding that SSR had failed to exhaust its administrative remedies, that the Board of Adjustment had primary jurisdiction, and that SSR had not obtained any vested rights entitling it to issuance of the storage facility building permit under the Zoning Code. SSR now appeals the trial court's judgment.¹

EXHAUSTION OF ADMINISTRATIVE REMEDIES/PRIMARY JURISDICTION

¶ 12 SSR argues that the trial court improperly found that SSR failed to follow the proper administrative review procedure. We defer to a trial court's factual findings, so long as they are supported by substantial evidence, but we review any issues of law de novo. SAL Leasing, Inc. v. State ex rel. Napolitano, 198 Ariz. 434, ¶ 13, 10 P.3d 1221, ¶ 13 (App.2000). A party must exhaust available administrative remedies "before appealing to the courts." Minor v. Cochise County, 125 Ariz. 170, 172, 608 P.2d 309, 311 (1980). Two closely allied doctrines are applied in such cases. See Original Apartment Movers, Inc. v. Waddell, 179 Ariz. 419, 420, 880 P.2d 639, 640 (App.1993)

. The doctrine of exhaustion of administrative remedies usually applies when a statute establishes an administrative review procedure and "determines when judicial review is available." Id. (emphasis in original); see also Minor, 125 Ariz. at 172,

608 P.2d at 311. "Where a board is specifically empowered to act by the Legislature, the board should act before recourse is had to the courts" as judicial review "is withheld until the administrative process has run its course." Minor, 125 Ariz. at 172,

608 P.2d at 311.

¶ 13 The primary jurisdiction doctrine, on...