IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
BONITO PARTNERS, LLC, an Arizona ) 1 CA-CV 10-0819
limited liability company,
)
) DEPARTMENT C
Plaintiff/Appellant, )
) O P I N I O N
v.
)
)
CITY OF FLAGSTAFF, a
)
municipality,
)
)
Defendant/Appellee.
)
)
DIVISION ONE
FILED: 02/21/2012
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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
Flagstaff
Mangum, Wall, Stoops & Warden, P.L.L.C.
By
Kenneth H. Brendel
Clyde P. Halstead
Attorneys for Appellee
Flagstaff
David R. Merkel
Phoenix
Joni L. Hoffman
Attorneys for Amicus Curiae League of Arizona Cities and Towns
H A L L, Judge
¶1
Bonito Partners, LLC (Bonito) appeals from the trial
courtâs summary judgment in favor of the City of Flagstaff (the
City).
Bonito contends that the Cityâs 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 âtakesâ private property for public use without just
compensation in violation of the Fifth Amendment.
Finding that
the ordinance is a valid exercise of the Cityâs police powers,
the trial court rejected Bonitoâs Takings Clause claim.
Even
though we agree that the ordinance constitutes a lawful exercise
of
the
Cityâs
police
powers,
such
a
determination
does
not
resolve the Takings Clause challenge, which is an analytically
distinct issue.
Therefore, we affirm in part and vacate and
remand in part.
FACTUAL AND PROCEDURAL HISTORY
¶2
The
undisputed.
facts
relevant
to
the
issues
ordinance
the
City
Section
notified
Bonito
8-01-001-0003,
In a letter dated May
that,
Bonito
that
the
City
would
repair
pursuant
was
repairing the sidewalk within ten days.
explained
are
At some point, through no fault of
Bonito, the sidewalk fell into disrepair.
2009,
appeal
Bonito owns a parcel of land in Flagstaff that is
adjacent to a City sidewalk.
18,
on
the
to
responsible
City
for
The letter further
sidewalk
and
bill
Bonito for the work if Bonito failed to complete the repairs
within the designated time period.
2
If Bonito then failed to
timely pay the City for the repair work, the City would place a
lien on Bonitoâs property.
¶3
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 Cityâs second notice, stating:
âPlease proceed with the
repairs.
Do not wait for Bonito Partners, LLC to do the work.â
¶4
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 Bonitoâs property.
¶5
On March 23, 2010, Bonito filed a complaint in the
trial court, arguing that the Cityâs ordinance requiring private
property owners to repair public sidewalks violates the federal
and
state
constitutional
prohibitions
against
the
taking
private property for public use without just compensation.
subsequent
amended
complaint,
Bonito
also
alleged
that
of
In a
the
ordinance constitutes an unlawful tax and exceeds the authority
permitted by Arizona statute and the Cityâs charter.
¶6
judgment.
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.
3
¶7
Bonito timely appealed.
We have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) section 12-2101(B) (2003).
DISCUSSION
¶8
Summary judgment shall be granted when âthere is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.â
56(c).
law.
Ariz. R. Civ. P.
We review de novo the trial courtâs application of the
State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120, 122,
¶ 5, 3 P.3d 1040, 1042 (App. 1999).
¶9
by
On appeal, Bonito contends that the trial court erred
granting
summary
judgment
in
favor
of
the
City.
Specifically, Bonito argues that the Cityâs ordinance requiring
property
owners
to
pay
for
repairs
to
public
sidewalks
(1)
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.
We address
each of these arguments in turn.
I.
Unconstitutional Taking
¶10
Bonito
asserts
that
the
Cityâs
ordinance
requiring
private property owners to repair public sidewalks violates the
Takings
Clause
Constitution:
of
the
Fifth
Amendment
to
the
United
States
â[N]or shall private property be taken for public
4
use, without just compensation.â1
In the trial court and on
appeal, both parties frame their arguments in terms of whether
the
Cityâs
ordinance
requiring
property
owners
to
repair
defective sidewalks is a valid exercise of the Cityâs police
powers.2
the
In its minute entry ruling dismissing the complaint,
trial
court
agreed
with
the
Cityâs
argument
that
the
ordinance was a valid exercise of that power and therefore was
not
an
partiesâ
unconstitutional
arguments,
analytically
and
taking.
the
As
courtâs
separateâalbeit
we
discuss
ruling,
below,
the
conflate
the
interrelatedâissues
regarding
whether the ordinance is valid under the Due Process Clause of
the
Fourteenth
Amendment
and,
if
so,
whether
it
nonetheless
violates the Takings Clause.
1
Article 2, Section 17, of the Arizona Constitution, Arizonaâs
analogue to the Takings Clause, provides in relevant part: âNo
private property shall be taken or damaged for public or private
use without just compensation having first been made[.]â
Although Arizonaâs 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
this case.
Therefore, we analyze the issues presented here
under the Fifth Amendment.
2
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.
5
¶11
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.
Id.
at
543
(â[T]he
Takings
Clause
presupposes
that
the
government has acted in pursuit of a valid public purpose.â).3
Thus,
the
question
whether
the
Cityâs
ordinance
is
a
valid
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 âis 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
takingâ) (emphasis in the original); see also Ranch 57 v. City
of Yuma, 152 Ariz. 218, 225, 731 P.2d 113, 120 (App. 1986)
(âAlthough a zoning ordinance may be a proper exercise of the
police power, it nevertheless may result in an unconstitutional
taking
of
property.â).
Accordingly,
3
we
need
not
consider
The clarification was needed because the Court had previously
used a âsubstantially advancesâ formula in determining whether a
municipal
zoning
ordinance
effected
a
taking,
thereby
commingling the due process and takings clauses.
See Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980) (âThe application of a
general zoning law to particular property effects a taking if
the ordinance does not substantially advance legitimate state
interests[.]â).
6
whether the ordinance violates the Fifth Amendment unless we
first determine that the ordinance is a valid exercise of the
Cityâs police powers.
¶12
A municipality âhas the right to define nuisances.â
Moton v. City of Phoenix, 100 Ariz. 23, 26, 410 P.2d 93, 95
(1966).
Using its police powers, âa municipality may abate a
nuisance without compensating the owner of the property.â
City
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
(âIn
the
absence
of
a
statutory
provision
for
compensation,
private property may be destroyed by a municipal corporation
without
compensation
to
the
owner
where
the
destruction
is
necessary to protect the public and the municipality is properly
exercising
the
police
Corporations § 177).
power.â)
(quoting
62
C.J.S.
Municipal
When âthe 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
legislative body.â
City of Phoenix v. Fehlner, 90 Ariz. 13, 20,
363 P.2d 607, 612 (1961) (internal quotation omitted).
Indeed,
â[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.â
City of
Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975)
7
(internal
quotation
ordinance
carries
unconstitutionality.
¶13
omitted).
the
The
burden
party
of
objecting
to
demonstrating
an
its
Fehlner, 90 Ariz. at 18, 363 P.2d at 611.
The Cityâs 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 City.
The lien placed by the City was authorized pursuant to Section
8-01-001-0007:
The cost of such repairs . . ., together
with all costs and penalties herein provided
for,[4] shall constitute a lien upon the lot
or lots fronting or adjoining the said
sidewalk so repaired . . . in favor of the
City.
4
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.
Section 8-01-001-0008.
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 â[a]s
soon as practicable after the attaching of such penaltiesâ and
thereafter sell the property âfrom the front door of the City
Hall.â Section 8-01-001-0009.
8
¶14
its
Bonito does not dispute that the sidewalk adjacent to
property
in
and
pedestrians,
was
disrepair,
would
posed
constitute
maintained on private property.
a
a
potential
nuisance
hazard
if
it
to
were
Nor does Bonito dispute that
the City has the authority to require a private property owner
to
remove
expense.
a
nuisance
from
private
property
at
the
ownerâs
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
weeds,
at
the
property
ownerâs
expense).
Instead,
Bonito
contends that the City is the party responsible for keeping
public sidewalks in good repair, not adjacent property owners,
and asserts that the ordinanceâs appropriation of private funds
to cure a public nuisance is an invalid exercise of the Cityâs
police power.
¶15
We disagree.
Under
the
auspices
of
its
police
power,
the
legislature may âplace 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.â
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) (â[T]here is ample authority that a city
may properly regulate and police the condition of its sidewalks,
9
and
require
abutting
landowners
to
make
repairs
when
necessary[.]â); Palmyra v. Morton, 25 Mo. 593, 596 (1857) (âThe
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
is
a
mere
requiring
police
adjoining
regulation.â).5
landowners
to
Moreover,
keep
an
sidewalks
ordinance
in
a
safe
condition serves not only the general interest of the community,
but the âspecial interest the abutter has in keeping clean and
safe
the
sidewalk
in
front
of
his
property[.]â
City
of
Bridgeport, 40 A.2d at 273; see also Ford v. Kansas City, 79
S.W. 923, 926 (1904) (âThe 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.â).
We
likewise
is
conclude
that
ordinance
Section
8-01-001-0003
neither arbitrary nor unreasonable and is, therefore, a valid
exercise of the Cityâs police power.
¶16
We
now
consider
whether
nonetheless violates the Takings Clause.
the
statutory
scheme
We initially note that
if Section 8-01-001-0003 is viewed in isolation, it could be
5
We also note that Arizona Attorney General Opinion 56-43 opines
that a municipality has the power to require a âproperty owner
to repair defective sidewalks adjoining his lot.â
Attorney
General Opinions are advisory only, however, and not binding on
the court. Marstonâs, Inc. v. Roman Catholic Church of Phoenix,
132 Ariz. 90, 94, 644 P.2d 244, 248 (1982).
10
argued that the ordinance does not implicate the Takings Clause.
See
Eastern
(Kennedy,
Enterprises
J.)
v.
(concurring
Apfel,
in
the
524
U.S.
judgment
498,
and
541
(1998)
dissenting
in
part) (disagreeing with the Takings Clause rationale relied on
by
the
four-justice
lead
opinion
to
enjoin
a
coal
mining
regulation: â[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.â).
Even
assuming that Section 8-01-001-0003 does not take any property
right for which compensation may be required under the Takings
Clause, however, Bonitoâs property is also regulated by the lien
imposed pursuant to Section 8-01-001-0007 as part of the overall
statutory scheme.
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 Cityâs police
powers,
Bonitoâs
the
question
property
whether
effects
the
imposition
of
a
an
unconstitutional
taking
be
regulated
certain
lien
on
must
be
separately addressed.
¶17
â[P]roperty
may
to
a
extent,
[but] if a regulation goes too far it will be recognized as a
taking.â
Ranch 57, 152 Ariz. at 225, 731 P.2d at 120 (quoting
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
Takings
Clause
requires
payment
so
that
government
The
cannot
âforc[e] some people alone to bear public burdens, which, in all
11
fairness and justice, should be borne by the public as a whole.â
Armstrong v. United States, 364 U.S. 40, 49 (1960); see also
Tahoe-Sierra
Pres.
Council,
Inc.,
v.
Tahoe
Regâl
Planning
Agency, 535 U.S. 302, 336 (2002) (explaining that âthe concepts
of âfairness and justiceâ [] underlie the Takings Clauseâ).
¶18
The
United
States
Supreme
Court
has
recognized
two
categories of âper seâ takings for Fifth Amendment purposes: (1)
when the âgovernment requires the property owner to suffer a
permanent
physical
government
invasion
regulations
of
her
âcompletely
property,â
deprive
an
economically beneficial use of her property.â
and
(2)
owner
of
when
all
Lingle, 544 U.S.
at 538.
Here, Bonito has suffered neither a permanent physical
invasion
of
its
property
nor
a
complete
deprivation
economically beneficial use of its property.
of
all
Therefore, no âper
seâ taking has occurred.
¶19
per
âOutside the[] two relatively narrow categories [of
se
takings]
.
.
.,
regulatory
takings
challenges
are
governed by the standards set forth in Penn Central Transp. Co.
v. New York City, 438 U.S. 104 (1978).â
Id.
In applying the
Penn Central factors, the Court has âgenerally eschewedâ any
âset formula for determining how far is too far, preferring
instead to engage in âessentially ad hoc, factual inquiries.ââ
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015
(1992) (quoting Penn Central, 438 U.S. at 124).
12
Such an inquiry
requires an examination into all of the relevant circumstances
in
a
particular
economic
case,
impact
of
with
the
primary
emphasis
regulation
on
on:
the
(1)
â[t]he
claimant
and,
particularly, the extent to which the regulation has interfered
with
distinct
investment-backed
expectations,â
and
(2)
âthe
character of the governmental action â for instance whether it
amounts
property
to
a
physical
interest
invasion
through
some
or
instead
public
merely
program
affects
adjusting
the
benefits and burdens of economic life to promote the common
good[.]â
Lingle, 544 U.S. at 538 (internal quotation omitted).
¶20
Neither
standard
for
party
has
yet
determining
addressed
when
a
the
Penn
governmental
affecting property rights requires compensation.
Central
regulation
Rather, the
parties arguedâand the trial court seemingly relied onâcase law
predating Lingle that failed to distinguish between due process
and takings analysis.
Courtâs
own
Amendment
analysis).
See id. at 537-39 (explaining the Supreme
doctrinal
due
process
confusion
law
with
in
conflating
Fifth
Fourteenth
Amendment
takings
Because of the essentially ad hoc, factual nature of
the inquiry, an appellate court is ill-equipped to apply the
Penn
Central
factors
when
they
have
not
been
developed by the parties in the trial court.
addressed
and
Therefore, we
vacate the trial courtâs ruling on this issue and remand for the
court to determine whether the Cityâs lawful exercise of its
13
police
powers
nonetheless
constituted
an
unconstitutional
taking.
II.
Unlawful Taxation
¶21
Bonito
âspecial
taxâ
in
contends
that
violation
of
the
Cityâs
Article
9,
ordinance
Section
1,
is
of
a
the
Arizona Constitution.
¶22
706
In Smith v. Mahoney, 22 Ariz. 342, 346-47, 197 P. 704,
(1921),
the
supreme
court
explained
that
whether
an
enactment falls within the scope of the police power or the
taxing power âdepends upon the purposes of the act.â
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).
¶23
measure.
Here, the Cityâs ordinance is not a revenue-generating
The purpose of the ordinance is clearly limited to
abating public nuisances.
Pursuant to the ordinanceâs express
terms, a property owner may independently make the necessary
sidewalk
repairs
without
remitting
any
funds
to
the
City.
Alternatively, a property owner may choose to allow the City to
make the necessary repairs and then pay the City only the costs
14
incurred to remedy the nuisance.
Under either circumstance, the
City does not generate any revenue.
III.
Local or Special Law
¶24
Bonito
argues
that
the
Cityâs
sidewalk
repair
ordinance constitutes a âlocal or special lawâ that violates
Article
4,
Section
19,
of
the
Arizona
Constitution.
Specifically, Bonito asserts that the Cityâs ordinance applies
to only âcertain members of a class,â namely, property owners
with an adjoining sidewalk, and it maintains that the ordinance
is arbitrary âbecause it has no relation to the use or benefit
of the sidewalk.â
¶25
A special law âapplies only to certain members of a
class or to an arbitrarily defined class which is not rationally
related to a legitimate legislative purpose.â
State Comp. Fund
v.
273,
Symington,
174
Ariz.
(quotation omitted).
the
classification
188,
192,
848
P.2d
277
(1993)
A law is general, not special, when: â(1)
is
rationally
related
to
a
legitimate
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.â
Long v. Napolitano, 203 Ariz. 247, 253, ¶ 14, 53 P.3d 172, 178
(App. 2002).
¶26
legitimate
In
this
case,
governmental
the
Cityâs
objective
15
of
ordinance
abating
furthers
public
a
sidewalk
nuisances.
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 â
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 Cityâs ordinance is not a âlocal or special law.â
IV.
Statutory Authority and Scope of Charter
¶27
Bonito asserts that the Cityâs ordinance exceeds the
scope of authority granted to the City by statute.
¶28
Bivens
A
v.
Instead,
municipal
Grand
â[a]
corporation
Rapids,
city
can
505
has
N.W.2d
exercise
âno
239,
only
inherent
241
such
(Mich.
powers
power.â
1993).
as
are
delegated to it by the Constitution and the laws of the state
and its charter.â
City of Phoenix v. Williams, 89 Ariz. 299,
303, 361 P.2d 651, 654 (1961) (internal quotation omitted and
emphasis removed).
16
¶29
Pursuant
to
A.R.S.
§
9-243
(2008),
the
âcommon
councilâ of a city or town âmay 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
constructed
by
the
town,
and
the
expense
against the block, lot or part thereof.â
the
City,
granted
numerous
by
additional
A.R.S.
§
statutes
9-243.
See
thereof
assessed
Moreover, as noted by
supplement
A.R.S.
§
the
powers
9-240(B)(3)(a)
(granting cities and towns âexclusive control over the streets,
alleys,
avenues
and
sidewalks
of
the
townâ);
A.R.S.
§
9-
240(B)(21)(a) (granting cities and towns authority to âdefine,
abate and remove nuisancesâ); A.R.S. § 9-240(B)(21)(b) (granting
cities and towns authority to âcompel the owner or any occupant
of any house or premises to clean the grounds, stables, alleys,
streets
and
walks
appurtenant
and
adjacent
theretoâ);
A.R.S.
§ 9-276(A)(6) (granting cities and towns authority to âregulate
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 obstructionâ).
¶30
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).
17
âWhen construing a statute, we examine its individual provisions
in the context of the entire statute to achieve a consistent
interpretation.â
Reeves v. Barlow, 227 Ariz. 38, 41, ¶ 12, 251
P.3d
(App.
417,
420
2011)
(internal
quotation
omitted).
âIndeed, if statutes relate to the same subject and are thus in
pari materia, they should be construed together . . . as though
they constituted one law.â
Id. (internal quotation omitted and
emphasis in original).
¶31
Bonito correctly points out that no Arizona statute
expressly
authorizes
a
city
to
compel
owners to repair public sidewalks.
which
permits
cities
to
require
its
private
property
Considering A.R.S. § 9-243,
private
property
owners
to
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
property
owners
to
clean
sidewalks
and
keep
them
free
from
obstruction, we construe Title 9âs 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 âsuch a duty may be imposed by statute or city
18
ordinanceâ).
Therefore, the Cityâs ordinance does not exceed
the scope of authority extended to the City by statute.
¶32
Next, Bonito argues that the Cityâs ordinance exceeds
the authority extended to the City by its charter.
¶33
â[T]he
powers
derived
by
a
municipality
from
its
charter are three-fold:
those granted in express words, those
fairly
powers
implied
essential
purposes
to
of
in
the
expressly
the
accomplishment
the
corporation
indispensible.â
â
of
not
the
granted,
declared
simply
and
those
objects
and
convenient,
but
Williams, 89 Ariz. at 302, 361 P.2d at 654
(quoting Schultz v. City of Phoenix, 18 Ariz. 35, 39, 156 P. 75,
76 (1916)).
¶34
Bonito correctly notes that the Cityâs 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 Cityâs charter, however, grants the City âall 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
powers granted.â
Moreover, Article 13, Section 8, grants the
City Council the âplenary 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,
19
safety,
morality,
health,
and
welfare
of
the
City
and
its
inhabitants.â
¶35
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.
Therefore, Article
1, Section 3, which incorporates all of the powers given to the
City by statute, authorizes the Cityâs ordinance.
In addition,
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.
Latchford,
cityâs
843
A.2d
maintain
ordinance
public
689,
694
(Del.
transferring
sidewalks
the
from
2004)
Compare Schadt v.
(holding
obligation
the
city
to
to
that
the
repair
and
private
property
owners constituted a âwide and inconsistent departureâ from the
cityâs charter that prohibited the city from delegating the duty
to anyone âother than by contractâ).
Therefore, the Cityâs
ordinance does not exceed the scope of the Cityâs charter.
V.
¶36
Request for Attorneysâ Fees
Bonito has requested an award of its attorneysâ 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 attorneysâ fees to a party that successfully challenges
the assessment or collection of taxes.
20
Because the ordinance at
issue is not a revenue-generating measure, this statutory basis
for an award of attorneysâ fees is inapplicable.
Likewise,
A.R.S. § 33-420, which states that a party that places a lien
against real property âknowing or having reason to know that the
[lien] is . . . groundlessâ is liable for the other partyâs
attorneysâ
fees,
is
also
inapplicable.
Therefore,
we
deny
Bonitoâs request for an award of its attorneysâ fees.
CONCLUSION
¶37
The summary judgment is affirmed in part and vacated
and remanded in part.
/s/
PHILIP HALL, Judge
CONCURRING:
_/s/____________________________________
MICHAEL J. BROWN, Presiding Judge
_/s/____________________________________
PATRICIA K. NORRIS, Judge
21
