Town of Peoria v. Hensley

• Decision Date: 10 February 1976
• Docket Number: CA-CIV,No. 1,1
• Citation: 26 Ariz.App. 30,545 P.2d 992
• Parties: TOWN OF PEORIA, a Municipal Corporation, Appellant, v. Richard HENSLEY and Dorelle Ann Hensley, his wife, Appellees. 2449.
• Court: Arizona Court of Appeals

Page 992

545 P.2d 992

26 Ariz.App. 30

TOWN OF PEORIA, a Municipal Corporation, Appellant, v. Richard HENSLEY and Dorelle Ann Hensley, his wife, Appellees.

No. 1 CA-CIV 2449.

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

Feb. 10, 1976.

Rehearing Denied March 11, 1976.

Review Denied April 6, 1976.

Perry & Head, by Dale A. Head, Phoenix, for appellant

Lindauer & Logan, P.A., by Thayer C. Lindauer, Phoenix, for appellees.

Johnson, Shelley & Roberts by J. LaMar Shelley, Mesa, for League of Ariz. Cities and Towns.

OPINION

JACOBSON, Presiding Judge.

This appeal questions the rights of the courts to determine the amount of 'benefits' derived from a town sewer improvement district and reduce the amount of assessments accordingly.

The first time that this matter was before this court is reported in Hensley v. Town of Peoria, 14 Ariz.App. 581, 485 P.2d 570 (1971). There we set aside the summary judgment in the town's favor because we found two genuine issues as material facts raised by A.R.S. § 9--686, namely, whether the Town of Peoria used an improper method for computing appellee's property assessment within the district by using the 'front foot' method rather than the 'benefit' method; and whether the appellees could benefit from the sewer district at all, since their property was zoned rural and so used. Appellant's property consists of an unimproved parcel approximately 165 feet in width and 1,284 feet in length. The sewer line which gave rise to the assessment runs the entire length of appellant's west boundary line.

On remand and trial, the court determined that the 'benefit' method was utilized by the town in fixing the assessments generally in the district and that in fact this particular property derived a benefit from the sewer district notwithstanding the property was zoned rural. However, the trial court further found that the assessment as to appellees' property did not comply with the statutory requirements of the assessment in proportion to the benefit to be received. The result of this determination was to reduce the assessment on appellees' property from an amount based upon a lot depth of 135 feet as found by the town council to a lot depth of 94 feet, thus cutting appellees' assessment by $1,839.03. The town has appealed.

The question squarely presented is whether the trial court having found appellant's property to have received a benefit from the formation of the sewer district and thus properly included in the district, may also determine the amount of the 'benefit' that the property derived contrary to the action of the town determining what that 'benefit' was.

The statutory scheme for initially assessing property in a special improvement district falls upon the superintendent of streets of the town. A.R.S. § 9--686(C) provides:

'The superintendent shall, as soon as the contractor has fulfilled his contract to the satisfaction of the superintendent, estimate . . . upon the lots within the district, the benefits arising from the work and projected to each lot. He shall thereupon make an assessment to cover the sum due for the work performed and specified in the contract, including incidental expenses, and shall assess upon and against the lots the total amount of the costs and expenses of the work. In so doing the superintendent shall assess the total sum upon the several lots, Each respectively in proportion to the benefits to be received by each lot.' (emphasis added)

The power delegated to the superintendent to fix the assessment 'in proportion to the benefits to be received', is subject to review by the common council of the town. A.R.S. § 9--687(F). This review procedure was exercised in this case and the common council of the Town of Peoria at a hearing upheld the assessment by the superintendent and found the 'benefits to be received' by appellant's land extended to a depth of 135 feet.

The determination as to the special benefits to be received by a particular lot within the improvement district is generally conceded to be a legislative function of the common council of the town. Brock v. Lemke, 51 Haw. 175, 455 P.2d 1 (1969); State ex rel. Londerholm v. City of Topeka, 201 Kan. 729, 443 P.2d 240 (1968); Chicago & North Western Ry. Co. v. City of Riverton, 70 Wyo. 84, 246 P.2d 789 (1952); See, Weitz v. Davis, 102 Ariz. 40, 424 P.2d 168 (1967).

Being a legislative determination, such a determination is conclusive 'and not subject to review by the courts unless it clearly appears that the determination was based on erroneous principles of law, or was . . . arbitrary, corrupt, fraudulent, or a manifest abuse of legislative authority, . . . or unless the assessment so far transcends the limit of equality that its execution will become extortion and confiscation . . ..' 63 C.J.S. Municipal Corporations § 1375, pp. 1138--39.

The dissent in this matter seems to indicate that there is a difference in the judicial review accorded the function of the city council in establishing the improvement district on the one hand and the finding by the council that benefits were bestowed on the other hand. In the opinion of the majority, neither the statutes nor the case law cited in the dissent supports such a distinction.

Appellants do not seriously argue with the applicable principles of law, but contend that whether the action is arbitrary or discriminatory (transcends the limit of equality) is a fact question for the court. Appellants further point out that the facts presented to the trial court would support its determination that the highest and best use of appellees' property was to sub-divide it into 17 residential lots and since the sub-division property adjoining appellees' property was divided into 17 lots having a depth of 94 feet, the reduction of appellees' projected lots to 94 feet is factually supportable. We agree that there are facts in the record which would support the trial court's Opinion as to the benefits derived from the special improvement district. However, the test is not whether the trial court's opinion is supportable, the test is whether the common council's opinion is supportable, that is, not arbitrary, fraudulent or discriminatory.

We believe the trial court was correct in arriving at the determination of benefits to be bestowed, to consider the appellees' property as 'if devoted to any use which might reasonably be made of it,' Howard Park Co. v. City of Los Angeles, 119 Cal.App.2d 515, 259 P.2d 977 (1953), quoted with approval in Weitz v. Davis, supra, rather than the present use. However, the power of the court to consider, as with the common council to consider, the anticipated 'highest and best use' does not give to the court the power to substitute its opinion as to what that highest and best use might be for the opinion of the legislative body empowered by statute to make that determination. As was stated in Chicago & North Western Railroad Co. v. City of Riverton, supra:

'However, values and benefits are matters of opinion, and it may be that since the taxing power is legislative, the legislature's opinion is as good as any, or better.' 246 P.2d at 801.

Appellees further argue that the only evidence presented shows that the highest and best use of appellees' property is 17 residential lots and since the sub-division adjoining this property is only assessed to the depth of 94 feet (the actual size of the lots in the adjoining subdivision) to assess their anticipated lots at a depth of 135 feet results in discrimination. Assuming we agree with appellees' argument that the only evidence presented shows the highest and best use to be 17 residential lots, this does not mean that those lots could not be 135 feet deep and that the benefit would not reach their entire depth. Discrimination does not result from assessing one lot to a depth of 135 feet and another lot to only 94 feet. Discrimination results if one lot 135 feet in depth is only assessed to a depth of 94 feet and yet another lot of 135 feet is assessed to its full depth. The evidence does not support this type of discrimination.

We, too, have viewed the evidence and the plot plan of the improvement district. In doing so, we could reasonably conclude, or more properly put, we could determine the common council of the Town of Peoria could reasonably conclude that the reasonable use of appellees' property would be residential lots having a depth of 135 feet and that by reason of this size and thus expanded use, would derive more benefit from the sewer line than a lot of 94 feet in depth. Having determined that the common council's conclusion is reasonable, we must find that it was not arbitrary, fraudulent or discriminatory and thus it must stand.

As was stated in Weitz v. Davis, supra:

'But, there never has been and probably never will be a perfectly equitable distribution of the assessment burden, so statutes or methods for the apportionment of assessments are not to be stricken down merely because they 'fail to attain the unattainable.' All that is required of them by constitutional law is that they apportion the burden of assessments with approximate equality, upon a reasonable basis of classification, and with due regard to the benefits to the individual property owners.' 102 Ariz. at 43, 424 P.2d at 171.

For the foregoing reasons, the judgment of the trial court is reversed and the matter remanded with directions to enter judgment for the Town of Peoria upon appellees' complaint.

HAIRE, C.J., Division 1, concurs.

EUBANK, Judge (dissenting).

I dissent because in my opinion the majority has entirely misconstrued the findings and judgment of the trial court.

This matter was returned to the trial court in Hensley v. Town of Peoria, 14 Ariz.App. 581, 485 P.2d 570 (1971) because we found that summary judgment was improperly granted. We held that two genuine issues as to material facts were raised by A.R.S. § 9--686, namely, whether Peoria used an improper method for...