IN THE COURT OF APPEALS
STATE OF ARIZONA
BONITO PARTNERS, LLC, an Arizona ) 1 CA-CV 10-0819
limited liability company,
) DEPARTMENT C
) O P I N I O N
CITY OF FLAGSTAFF, a
RUTH A. WILLINGHAM,
Appeal from the Superior Court in Coconino County
Cause No. CV2010-00231
The Honorable Jacqueline Hatch, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Gerald W. Nabours
Attorney for Appellant
Mangum, Wall, Stoops & Warden, P.L.L.C.
Kenneth H. Brendel
Clyde P. Halstead
Attorneys for Appellee
David R. Merkel
Joni L. Hoffman
Attorneys for Amicus Curiae League of Arizona Cities and Towns
H A L L, Judge
Bonito Partners, LLC (Bonito) appeals from the trial
court’s summary judgment in favor of the City of Flagstaff (the
Bonito contends that the City’s ordinance requiring that
owners of property adjoining sidewalks keep them in repair and
imposing a lien against the property for the costs of repair if
performed by the City is unconstitutional because, among other
reasons, it “takes” private property for public use without just
compensation in violation of the Fifth Amendment.
the ordinance is a valid exercise of the City’s police powers,
the trial court rejected Bonito’s Takings Clause claim.
though we agree that the ordinance constitutes a lawful exercise
resolve the Takings Clause challenge, which is an analytically
Therefore, we affirm in part and vacate and
remand in part.
FACTUAL AND PROCEDURAL HISTORY
In a letter dated May
repairing the sidewalk within ten days.
At some point, through no fault of
Bonito, the sidewalk fell into disrepair.
Bonito owns a parcel of land in Flagstaff that is
adjacent to a City sidewalk.
The letter further
Bonito for the work if Bonito failed to complete the repairs
within the designated time period.
If Bonito then failed to
timely pay the City for the repair work, the City would place a
lien on Bonito’s property.
On June 25, 2009, Bonito received a second notice from
the City stating that Bonito was responsible for the cost of
repairing the sidewalk.
On June 29, 2009, Bonito responded to
the City’s second notice, stating:
“Please proceed with the
Do not wait for Bonito Partners, LLC to do the work.”
The City performed the work to repair the sidewalk.
On July 23, 2009, the City sent Bonito a letter explaining that
it had performed the repairs and included an itemized statement
of the repair costs.
Bonito failed to pay the City for the
repairs and the City recorded a lien on Bonito’s property.
On March 23, 2010, Bonito filed a complaint in the
trial court, arguing that the City’s ordinance requiring private
property owners to repair public sidewalks violates the federal
private property for public use without just compensation.
ordinance constitutes an unlawful tax and exceeds the authority
permitted by Arizona statute and the City’s charter.
Bonito and the City filed cross-motions for summary
After holding oral argument on the motions, the trial
court granted summary judgment in favor of the City.
Bonito timely appealed.
We have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) section 12-2101(B) (2003).
Summary judgment shall be granted when “there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.”
Ariz. R. Civ. P.
We review de novo the trial court’s application of the
State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120, 122,
¶ 5, 3 P.3d 1040, 1042 (App. 1999).
On appeal, Bonito contends that the trial court erred
Specifically, Bonito argues that the City’s ordinance requiring
violates the federal and state constitutional takings clauses,
(2) constitutes an unlawful tax, and (3) exceeds the authority
extended to the City by statute and by its charter.
each of these arguments in turn.
private property owners to repair public sidewalks violates the
“[N]or shall private property be taken for public
use, without just compensation.”1
In the trial court and on
appeal, both parties frame their arguments in terms of whether
defective sidewalks is a valid exercise of the City’s police
In its minute entry ruling dismissing the complaint,
ordinance was a valid exercise of that power and therefore was
whether the ordinance is valid under the Due Process Clause of
violates the Takings Clause.
Article 2, Section 17, of the Arizona Constitution, Arizona’s
analogue to the Takings Clause, provides in relevant part: “No
private property shall be taken or damaged for public or private
use without just compensation having first been made[.]”
Although Arizona’s constitutional provision is not necessarily
coextensive with its federal counterpart, see Bailey v. Myers,
206 Ariz. 224, 229, ¶ 20, 76 P.3d 898, 903 (App. 2003), Bonito
does not contend that the state constitution affords him greater
protection or applies differently under the circumstances of
Therefore, we analyze the issues presented here
under the Fifth Amendment.
The two cases Bonito primarily relies upon, Rivett v. City of
Tacoma, 870 P.2d 299, 301 (1994), and Tropiano v. City of
Tacoma, 718 P.2d 801, 802 (1986), are both slip-and-fall cases
in which the issue was whether the City of Tacoma could shift
liability for damages caused by public sidewalk defects onto the
adjacent private property owner. Because neither case addressed
the issue raised here, namely, whether a municipality may
require a private property owner to pay for repairs to an
adjacent sidewalk, they are inapposite.
As clarified by the United States Supreme Court in
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), a Takings
Clause analysis presupposes a valid exercise of police power.
government has acted in pursuit of a valid public purpose.”).3
exercise of police power, which is properly analyzed under the
Due Process Clause of the Fourteenth Amendment, is preliminary
to the Takings Clause claim.
Lingle, 544 U.S. at 539; see also
First Evangelical Lutheran Church of Glendale v. County of Los
Angeles, 482 U.S. 304, 315 (1987) (explaining that the Takings
Clause “is designed not to limit the governmental interference
with property rights per se, but rather to secure compensation
in the event of otherwise proper interference amounting to a
taking”) (emphasis in the original); see also Ranch 57 v. City
of Yuma, 152 Ariz. 218, 225, 731 P.2d 113, 120 (App. 1986)
(“Although a zoning ordinance may be a proper exercise of the
police power, it nevertheless may result in an unconstitutional
The clarification was needed because the Court had previously
used a “substantially advances” formula in determining whether a
commingling the due process and takings clauses.
See Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980) (“The application of a
general zoning law to particular property effects a taking if
the ordinance does not substantially advance legitimate state
whether the ordinance violates the Fifth Amendment unless we
first determine that the ordinance is a valid exercise of the
City’s police powers.
A municipality “has the right to define nuisances.”
Moton v. City of Phoenix, 100 Ariz. 23, 26, 410 P.2d 93, 95
Using its police powers, “a municipality may abate a
nuisance without compensating the owner of the property.”
of Tempe v. Fleming, 168 Ariz. 454, 458, 815 P.2d 1, 5 (App.
1991); see also Moton, 100 Ariz. at 27-28, 410 P.2d at 95-96
private property may be destroyed by a municipal corporation
necessary to protect the public and the municipality is properly
Corporations § 177).
When “the reasonableness of [an] ordinance
and its relationship to the police power are fairly debatable
. . . the court will not substitute its opinion for that of the
City of Phoenix v. Fehlner, 90 Ariz. 13, 20,
363 P.2d 607, 612 (1961) (internal quotation omitted).
“[a]n ordinance will not be found unconstitutional unless it
affirmatively appears that the restriction is clearly arbitrary
and unreasonable, and has not any substantial relation to the
public health, safety, morals, or general welfare.”
Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975)
Fehlner, 90 Ariz. at 18, 363 P.2d at 611.
The City’s ordinance Section 8-01-001-0003 provides:
It shall be the duty of the owner or owners
of [lots adjoining sidewalks in disrepair]
within ten (10) days after the service of
[notice from the City] to place the sidewalk
or portion of sidewalk in such notice
mentioned or described in good condition and
repair using therefor material similar in
character and dimensions of that with which
such sidewalk was originally constructed;
provided that such sidewalk shall comply
with the provisions and specifications for
the laying and constructing of sidewalks as
are on file in the Engineering Section of
The lien placed by the City was authorized pursuant to Section
The cost of such repairs . . ., together
with all costs and penalties herein provided
for, shall constitute a lien upon the lot
or lots fronting or adjoining the said
sidewalk so repaired . . . in favor of the
If the property owner does not pay the costs of repair within
ten days of its filing with the City Clerk, fifty percent of the
amount of the cost is added to the cost and becomes an
additional charge upon the property.
Although the City has not done so here, and claims that its
practice is only to enforce the lien upon a sale of the
property, the City is empowered to publish a notice of sale of
property for four consecutive issues in a weekly paper “[a]s
soon as practicable after the attaching of such penalties” and
thereafter sell the property “from the front door of the City
Hall.” Section 8-01-001-0009.
Bonito does not dispute that the sidewalk adjacent to
maintained on private property.
Nor does Bonito dispute that
the City has the authority to require a private property owner
See Fleming, 168 Ariz. at 457-58, 815 P.2d at 4-5
(explaining that a municipality may require a property owner to
terminate a nuisance on the property, such as trash, debris, or
contends that the City is the party responsible for keeping
public sidewalks in good repair, not adjacent property owners,
and asserts that the ordinance’s appropriation of private funds
to cure a public nuisance is an invalid exercise of the City’s
legislature may “place the burden of the upkeep of sidewalks
which would otherwise rest upon the community upon the abutting
owner, provided it does not act arbitrarily or unreasonably.”
City of Bridgeport v. United Illuminating Co., 40 A.2d 272, 273
(Conn. 1944); see also City of Philadelphia to the Use of Tony
Depaul and Son v. Authority for Indus. Dev., 326 A.2d 502, 504
(Pa. Super. Ct. 1974) (“[T]here is ample authority that a city
may properly regulate and police the condition of its sidewalks,
necessary[.]”); Palmyra v. Morton, 25 Mo. 593, 596 (1857) (“The
right of a municipal corporation to require the owner to pave
the sidewalk in front of his property, may be derived from its
duty to protect the public health and to prevent nuisances, and
condition serves not only the general interest of the community,
but the “special interest the abutter has in keeping clean and
Bridgeport, 40 A.2d at 273; see also Ford v. Kansas City, 79
S.W. 923, 926 (1904) (“The fundamental ground upon which the
ordinance is predicated is that a sidewalk kept in good repair
enhances the value of the property upon which it fronts.”).
neither arbitrary nor unreasonable and is, therefore, a valid
exercise of the City’s police power.
nonetheless violates the Takings Clause.
We initially note that
if Section 8-01-001-0003 is viewed in isolation, it could be
We also note that Arizona Attorney General Opinion 56-43 opines
that a municipality has the power to require a “property owner
to repair defective sidewalks adjoining his lot.”
General Opinions are advisory only, however, and not binding on
the court. Marston’s, Inc. v. Roman Catholic Church of Phoenix,
132 Ariz. 90, 94, 644 P.2d 244, 248 (1982).
argued that the ordinance does not implicate the Takings Clause.
part) (disagreeing with the Takings Clause rationale relied on
regulation: “[O]ne constant limitation has been that in all of
the cases where the regulatory analysis has been employed, a
specific property right or interest has been at stake.”).
assuming that Section 8-01-001-0003 does not take any property
right for which compensation may be required under the Takings
Clause, however, Bonito’s property is also regulated by the lien
imposed pursuant to Section 8-01-001-0007 as part of the overall
See id. at 540.
Therefore, even though we
have determined that the requirement that a lot owner repair the
adjoining sidewalk is a valid exercise of the City’s police
[but] if a regulation goes too far it will be recognized as a
Ranch 57, 152 Ariz. at 225, 731 P.2d at 120 (quoting
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
“forc[e] some people alone to bear public burdens, which, in all
fairness and justice, should be borne by the public as a whole.”
Armstrong v. United States, 364 U.S. 40, 49 (1960); see also
Agency, 535 U.S. 302, 336 (2002) (explaining that “the concepts
of ‘fairness and justice’  underlie the Takings Clause”).
categories of “per se” takings for Fifth Amendment purposes: (1)
when the “government requires the property owner to suffer a
economically beneficial use of her property.”
Lingle, 544 U.S.
Here, Bonito has suffered neither a permanent physical
economically beneficial use of its property.
Therefore, no “per
se” taking has occurred.
“Outside the two relatively narrow categories [of
governed by the standards set forth in Penn Central Transp. Co.
v. New York City, 438 U.S. 104 (1978).”
In applying the
Penn Central factors, the Court has “generally eschewed” any
“set formula for determining how far is too far, preferring
instead to engage in ‘essentially ad hoc, factual inquiries.’”
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015
(1992) (quoting Penn Central, 438 U.S. at 124).
Such an inquiry
requires an examination into all of the relevant circumstances
particularly, the extent to which the regulation has interfered
character of the governmental action – for instance whether it
benefits and burdens of economic life to promote the common
Lingle, 544 U.S. at 538 (internal quotation omitted).
affecting property rights requires compensation.
parties argued—and the trial court seemingly relied on—case law
predating Lingle that failed to distinguish between due process
and takings analysis.
See id. at 537-39 (explaining the Supreme
Because of the essentially ad hoc, factual nature of
the inquiry, an appellate court is ill-equipped to apply the
developed by the parties in the trial court.
vacate the trial court’s ruling on this issue and remand for the
court to determine whether the City’s lawful exercise of its
In Smith v. Mahoney, 22 Ariz. 342, 346-47, 197 P. 704,
enactment falls within the scope of the police power or the
taxing power “depends upon the purposes of the act.”
The police power must also be distinguished
from the taxing power, and the distinction
is this: That the taxing power is exercised
for the raising of revenue, while the police
power is exercised only for the purpose of
promoting the public welfare, and though
this end may be attained by taxing or
licensing occupations, yet the object must
always be regulation and not the raising of
revenue, and hence the restrictions upon the
taxing power do not apply.
Id. (internal quotation omitted).
Here, the City’s ordinance is not a revenue-generating
The purpose of the ordinance is clearly limited to
abating public nuisances.
Pursuant to the ordinance’s express
terms, a property owner may independently make the necessary
Alternatively, a property owner may choose to allow the City to
make the necessary repairs and then pay the City only the costs
incurred to remedy the nuisance.
Under either circumstance, the
City does not generate any revenue.
Local or Special Law
ordinance constitutes a “local or special law” that violates
Specifically, Bonito asserts that the City’s ordinance applies
to only “certain members of a class,” namely, property owners
with an adjoining sidewalk, and it maintains that the ordinance
is arbitrary “because it has no relation to the use or benefit
of the sidewalk.”
A special law “applies only to certain members of a
class or to an arbitrarily defined class which is not rationally
related to a legitimate legislative purpose.”
State Comp. Fund
A law is general, not special, when: “(1)
governmental objective, (2) the classification is legitimate,
encompassing all members of the relevant class, and (3) the
class is elastic, allowing members to move in and out of it.”
Long v. Napolitano, 203 Ariz. 247, 253, ¶ 14, 53 P.3d 172, 178
The proximity limitation placed on the class is
rationally related to the purpose in that the owner of private
property adjacent to the public sidewalk may be in the best
position to monitor the state of the sidewalk and often derives
a significant benefit from the sidewalk as a means of ingress
and egress to his private property.
In addition, the ordinance
applies uniformly to all property owners with public sidewalks
adjacent to their properties.
Finally, the class is elastic –
when a person acquires property adjacent to a public sidewalk he
becomes a member of the class, and when a person relinquishes
property adjacent to a public sidewalk he is no longer included
in the class.
Therefore, the trial court did not err by finding
the City’s ordinance is not a “local or special law.”
Statutory Authority and Scope of Charter
Bonito asserts that the City’s ordinance exceeds the
scope of authority granted to the City by statute.
delegated to it by the Constitution and the laws of the state
and its charter.”
City of Phoenix v. Williams, 89 Ariz. 299,
303, 361 P.2d 651, 654 (1961) (internal quotation omitted and
council” of a city or town “may require the proprietor of any
block, lot or part of a lot within the town to construct a
sidewalk in front thereof . . . and may by ordinance provide
that upon failure of the proprietor to construct the sidewalk
within a time to be prescribed after notice so to do it may be
against the block, lot or part thereof.”
Moreover, as noted by
(granting cities and towns “exclusive control over the streets,
240(B)(21)(a) (granting cities and towns authority to “define,
abate and remove nuisances”); A.R.S. § 9-240(B)(21)(b) (granting
cities and towns authority to “compel the owner or any occupant
of any house or premises to clean the grounds, stables, alleys,
§ 9-276(A)(6) (granting cities and towns authority to “regulate
the use of sidewalks . . . and require the owner or occupant of
premises to keep the sidewalks in front of or along the premises
free from obstruction”).
The interpretation of a statute is a question of law
that we review de novo.
See Rowland v. Kellogg Brown & Root,
Inc., 210 Ariz. 530, 532, ¶ 5, 115 P.3d 124, 126 (App. 2005).
“When construing a statute, we examine its individual provisions
in the context of the entire statute to achieve a consistent
Reeves v. Barlow, 227 Ariz. 38, 41, ¶ 12, 251
“Indeed, if statutes relate to the same subject and are thus in
pari materia, they should be construed together . . . as though
they constituted one law.”
Id. (internal quotation omitted and
emphasis in original).
Bonito correctly points out that no Arizona statute
owners to repair public sidewalks.
Considering A.R.S. § 9-243,
construct public sidewalks, in conjunction with A.R.S. §§ 9-240
and -276, which grant cities exclusive control over sidewalks,
the authority to define and abate nuisances, and compel private
obstruction, we construe Title 9’s grant of general and specific
powers to cities to encompass the authority to require private
property owners to repair sidewalks adjacent to their property.
Cf. Thomas v. Baker Family Trust, 191 Ariz. 187, 188, 953 P.2d
931, 932 (App. 1997) (explaining that a property owner has no
common-law duty to repair a sidewalk adjacent to his property,
but noting that “such a duty may be imposed by statute or city
Therefore, the City’s ordinance does not exceed
the scope of authority extended to the City by statute.
Next, Bonito argues that the City’s ordinance exceeds
the authority extended to the City by its charter.
charter are three-fold:
those granted in express words, those
Williams, 89 Ariz. at 302, 361 P.2d at 654
(quoting Schultz v. City of Phoenix, 18 Ariz. 35, 39, 156 P. 75,
Bonito correctly notes that the City’s charter does
not expressly grant the City the authority to compel a private
property owner to repair a public sidewalk.
Article 1, Section
3, of the City’s charter, however, grants the City “all the
powers granted to municipal corporations and to cities by the
Constitution and general laws of this State, together with all
the implied powers necessary to carry into execution all the
Moreover, Article 13, Section 8, grants the
City Council the “plenary power to enact and make all proper and
necessary ordinances . . . to carry out and give effect to the
express, as well as the implied, powers granted in this Charter
. . . and thereby protect and safeguard the rights, interests,
As discussed above, we construe Title 9 as extending
cities the power to compel private property owners to repair
public sidewalks adjacent to their property.
1, Section 3, which incorporates all of the powers given to the
City by statute, authorizes the City’s ordinance.
Article 13, Section 8, also gives the City the police power to
enact all ordinances necessary to promote the health and safety
of its citizens.
And, as discussed above, the ordinance at
issue falls within this broad police power.
Compare Schadt v.
owners constituted a “wide and inconsistent departure” from the
city’s charter that prohibited the city from delegating the duty
to anyone “other than by contract”).
Therefore, the City’s
ordinance does not exceed the scope of the City’s charter.
Request for Attorneys’ Fees
Bonito has requested an award of its attorneys’ fees
incurred on appeal pursuant to A.R.S. §§ 12-348(B)(1) (Supp.
2011) and 33-420 (2007).
Section 12-348(B)(1) permits a court
to award attorneys’ fees to a party that successfully challenges
the assessment or collection of taxes.
Because the ordinance at
issue is not a revenue-generating measure, this statutory basis
for an award of attorneys’ fees is inapplicable.
A.R.S. § 33-420, which states that a party that places a lien
against real property “knowing or having reason to know that the
[lien] is . . . groundless” is liable for the other party’s
Bonito’s request for an award of its attorneys’ fees.
The summary judgment is affirmed in part and vacated
and remanded in part.
PHILIP HALL, Judge
MICHAEL J. BROWN, Presiding Judge
PATRICIA K. NORRIS, Judge