Wonders v. Pima County

• Court: Arizona Court of Appeals
• Writing for the Court: FLOREZ, J.
• Citation: Wonders v. Pima County, 207 Ariz. 576, 89 P.3d 810 (Ariz. App. 2004)
• Decision Date: 12 May 2004
• Docket Number: No. 2 CA-CV 2003-0090.,2 CA-CV 2003-0090.
• Parties: W. Kent WONDERS and Judith A. Wonders, as Trustees of the Wonders Family Trust of 9/13/91, Plaintiffs/Appellants, v. PIMA COUNTY, a body politic, Defendant/Appellee.

89 P.3d 810

207 Ariz. 576

W. Kent WONDERS and Judith A. Wonders, as Trustees of the Wonders Family Trust of 9/13/91, Plaintiffs/Appellants, v. PIMA COUNTY, a body politic, Defendant/Appellee.

No. -0090.

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

May 12, 2004.

Robin C. Carter, Attorney-at-Law, P.C., By Robin C. Carter, Tucson, for Plaintiffs/Appellants.

Barbara LaWall, Pima County Attorney, By Christopher Straub, Tucson, for Defendant/Appellee.

OPINION

FLOREZ, J.

¶ 1 Appellants Kent and Judith Wonders, as trustees of the Wonders Family Trust, appeal from the trial court's grant of summary judgment in favor of Pima County in an action the Trust brought challenging the legality of Pima County's native-plant preservation ordinance. We affirm.

¶ 2 The Trust is the developer of two subdivisions in Pima County—a 20.3-acre, nineteen-lot subdivision known as Critter Land I, and a 154-acre, 148-lot subdivision known as Critter Land II. Under Ordinance No.1998-39, incorporated into the Pima County Zoning Code at chapter 18.72 (the "Ordinance"), a landowner seeking to develop land like the Trust's must choose one, or a combination, of three designated native-plant preservation methods or obtain a variance from Pima County's Board of Adjustment. See Pima County, Ariz., Code §§ 18.72.050(C) and 18.72.090 (1985).

¶ 3 The Trust did not seek a variance, but instead, as a condition for having its subdivision plats approved, submitted a native-plant preservation plan that complied with the Ordinance. The Trust then filed a complaint for inverse condemnation and a request for declaratory judgment, alleging that the Ordinance effects a regulatory taking of its property under the Fifth Amendment to the United States Constitution and article II, § 17 of the Arizona Constitution, that the Ordinance is unconstitutionally vague, and that it conflicts with preemptive state law. The parties filed cross-motions for summary judgment, and the trial court granted Pima County's motion. On appeal from that judgment, the Trust argues the Ordinance is preempted by state statute and results in an unconstitutional taking of its property.

¶ 4 Preliminarily, Pima County argues the Trust's claims are barred by its failure to seek a variance from the board of adjustment. The trial court did not address the Trust's claim that the Ordinance is unconstitutionally vague because it concluded the Trust had not exhausted available administrative remedies. But the court did address on the merits the Trust's claim that the Ordinance constitutes a regulatory taking of its property. We conclude that the trial court correctly applied the doctrine of primary jurisdiction below, although mislabeling it as the exhaustion doctrine.

¶ 5 "`The exhaustion doctrine is concerned with the timing of judicial review of administrative action.'" Campbell v. Mountain States Tel. & Tel. Co., 120 Ariz. 426, 429, 586 P.2d 987, 990 (App.1978), quoting 3 Kenneth Culp Davis, Administrative Law Treatise § 20.01, at 57 (1958). In this case, however, the Trust has not challenged any administrative action. The board of adjustment took no action because the Trust did not apply for a variance, and the Trust does not challenge Pima County's approval of its subdivision plats. Rather, the issue presented to the trial court was whether the Trust should have been required to seek a variance before challenging the Ordinance in court. This is a question of primary jurisdiction. "In contrast to the exhaustion of remedies doctrine, which governs when administrative action is subject to judicial review, the doctrine of primary jurisdiction determines whether the court or the agency should make the initial decision in a particular case." Id. The "doctrine of primary jurisdiction is a discretionary rule created by the courts to effectuate the efficient handling of cases in specialized areas where agency expertise may be useful." Id. at 430, 586 P.2d at 991.

¶ 6 In Campbell, Division One of this court applied the principle set forth by the United States Supreme Court in deciding issues of primary jurisdiction between federal administrative agencies and the federal courts.

"[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created ... for regulating the subject matter should not be passed over.... Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure."

Id., quoting Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494, 96 L.Ed. 576, 582 (1952) (alteration in original). Given this principle, the trial court acted within its discretion in exercising its jurisdiction to hear some, but not all, of the Trust's claims.

¶ 7 Among its other powers, the board of adjustment is specifically empowered to interpret zoning ordinances "when the meaning of any word, phrase or section is in doubt." A.R.S. § 11-807(B)(1). Given this express statutory authority, we agree with the trial court that the board should have an opportunity to interpret the Ordinance before any judicial inquiry into its alleged vagueness.

¶ 8 The board is also empowered to "[a]llow a variance from the terms of the ordinance when, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship, if in granting such variance the general intent and purposes of the zoning ordinance will be preserved." A.R.S. § 11-807(B)(2). The Trust has not argued that it should be entitled to a variance. Indeed, there is no indication in the record that a strict interpretation of the Ordinance would cause the Trust to suffer an unnecessary hardship or that a variance could be granted while preserving the intent and purposes of the Ordinance. Because the Trust's contentions are general and not based on its particular circumstances, the board's expertise and development of a factual record are not necessary to deciding the purely legal issues presented by the Trust's preemption and Fifth Amendment claims. Therefore, we conclude the trial court did not abuse its discretion by addressing whether the Ordinance is preempted or constitutes a regulatory taking. We also review these issues.

¶ 9 The Trust first contends that the Arizona Native Plant Act, A.R.S. §§ 3-901 through 3-934 (the "Act"), preempts Pima County's Ordinance. We consider this issue de novo. See City of Tucson v. Rineer, 193 Ariz. 160, 971 P.2d 207 (App.1998). When an issue affects both local and statewide interests, both the locality and the state may enact relevant laws. See Babe's Cabaret v. City of Scottsdale, 197 Ariz. 98, 3 P.3d 1018 (App.1999). A state law only preempts conflicting local ordinances when the subject matter of the legislation is of statewide concern and the state has appropriated the field. See Winkle v. City of Tucson, 190 Ariz. 413, 949 P.2d 502 (1997). The existence of a preemptive policy must be clear. "Absent a clear manifestation of legislative intent to preclude local control, there is no preemption." Babe's Cabaret,197 Ariz. 98, ¶ 11, 3 P.3d at 1022. And, to be preempted, a municipal ordinance must actually conflict with governing state law. "`Mere commonality of some aspect of subject matter is insufficient....'" Id., quoting City of Prescott v. Town of Chino Valley, 163 Ariz. 608, 616, 790 P.2d 263, 271 (App.1989),vacated on other grounds, 166 Ariz. 480, 803 P.2d 891 (1990).

¶ 10 In this case, the legislature has not manifested a clear intent to preclude local control over native-plant preservation. In fact, it has done the opposite. The Act expressly provides that "[t]he board of supervisors of each county is authorized to adopt and enforce ordinances not in conflict with law for the preservation of protected groups of plants." A.R.S. § 3-914. When a statute recognizes that there may be local legislation on the same subject matter, no inference of preemption is warranted. See Rineer, 193 Ariz. 160, ¶ 8, 971 P.2d at 210.

¶ 11 The Trust contends, however, that § 3-914 actually manifests the legislature's intent to preclude or limit local regulation on the subject. It argues that, as a property owner, it has a common law or natural law right to destroy plants on its own property, that the Act "confirms" this right by not prohibiting destruction on private property, and that, because the Ordinance prohibits destruction in certain circumstances, it conflicts with "the law." Therefore, it argues, § 3-914 actually invalidates the Ordinance.

¶ 12 We reject this argument. Not only does the plain language of § 3-914 authorize county ordinances not in conflict with the Act, but Pima County is also empowered to enact zoning ordinances that restrict common law property rights. A.R.S. § 11-802; see also Sandblom v. Corbin, 125 Ariz. 178, 184, 608 P.2d 317, 323 (App.1980) (governmental body has authority to act "in derogation of common law property rights" through zoning ordinances adopted in compliance with procedural prerequisites). The Ordinance does not conflict with "the law" simply because it is a zoning ordinance, and the Trust has not argued that the adoption of the Ordinance was procedurally flawed. Nor is it important, as the Trust contends, that the Act itself is not a zoning enabling act, because Pima County's zoning authority does not emanate from the Act. See id. Although the Act does not prevent the destruction of native plants on private property, neither does it confirm or confer an inalienable right to do so.

¶ 13 Moreover, the Ordinance does not actually conflict with the Act. To conflict under a preemption analysis, a...