Maricopa v. Hon. Gama/Coating

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MARICOPA COUNTY, a political subdivision of the State of Arizona, ) ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE J. RICHARD GAMA, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) COATING SPECIALISTS, INC., an ) Arizona Corporation and SKYCE ) STEEL, INC., an Arizona ) Corporation, ) ) Real Parties in Interest. ) __________________________________) DIVISION ONE FILED: 09/21/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-SA 10-0176 DEPARTMENT E Maricopa County Superior Court No. CV2010-019989 DECISION ORDER This special action was considered by Presiding Judge Philip Hall and Judges Peter B. Swann and Sheldon H. Weisberg during a regularly scheduled conference held on September 14, 2010. After consideration, and for the reasons that follow, it is ordered that the Court of Appeals, in the exercise of its discretion, accepts jurisdiction and denies relief. In this special action, petitioner asserts that the trial court erred when it entered a formal written Order of Abatement dated July Coating 29, 2010, Specialists, but Inc. allowed real ( Coating ) parties and Skyce in interest Steel, Inc. ( Skyce ) until November 30, 2010, to either comply with the approved planning documents or cease further use and abate all further operations on the property. Petitioner contends that the trial court s decision to allow a period for compliance beyond the date of the order sanctions continuation of public nuisances and criminal activities in a manner that is contrary to public health, safety, and welfare. This court s decision to jurisdiction is highly discretionary. accept special action Ariz. R.P. Spec. Act. 3. A primary consideration is whether the petitioner has an equally plain, speedy and adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); Foulke v. Knuck, 162 Ariz. 517, 519, 784 P.2d 723, 725 (App. 1989) (citations omitted). Because the timeline of appeal, even in an expedited matter, combined with the trial court s deadline would make this issue moot on appeal, we accept jurisdiction. See Big D Constr. Corp. v. Court of Appeals, 163 Ariz. 560, 563, 789 P.2d 1061, 1164 (1990) (allowing courts to consider moot cases when significant questions of public importance are presented and are likely to recur. ) (citation omitted). We deny relief, however, for two reasons. court had the equitable discretion 2 to tailor its First, the order of abatement pursuant to A.R.S. § 11-815 violations were not a nuisance per se. (2001) because the See Mutschler v. City of Phoenix, 212 Ariz. 160, 165 n.7, ¶ 18, 129 P.3d 71, 76 n.7 (App. 2006) ( A nuisance per se or at law is [a]n act, occupation, or structure which is circumstances, a nuisance regardless of at all times location and or under any surroundings. ) (emphasis added); Heyne v. Loges, 68 Ariz. 310, 313, 205 P.2d 586, 588 (1949) (holding a court abuses failing to enjoin a nuisance per se). its discretion in Cf. City of Tucson v. Clear Channel Outdoor Inc., 218 Ariz. 172, 187, ¶ 53, 181 P.3d 219, 234 (App. 2008) (affirming the lower court s discretion to order illegal signs be brought into compliance with Tucson city code rather than be removed because they were not a nuisance per se). There is no statutory requirement that an order of abatement take abatement Dictionary full is effect not defines immediately defined by the abatement to upon entry. statute. include Indeed, Black s [t]he Law act of lessening or moderating; diminution in amount or degree. We perceive no inconsistency between this definition of abatement and the deadline contained in the court s order. Second, contrary court s decision did because the property not to petitioner s allow owner was 3 ongoing served assertion, criminal with a the activity notice of violation. See A.R.S. § 11-815(D) ( If an alleged violator is served with a notice of violation . . . the alleged violator is not subject facts. ). to a criminal charge arising out of the same Indeed, the County itself took measures before filing its civil action to permit respondents to remedy the violations even after the notice of violation was issued. nothing in the court s order that constitutes We discern an abuse of discretion or an act in excess of its legal authority under A.R.S. § 11-815. /s/ ________________________________ Peter B. Swann, Judge 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.