Queen Creek v. Gilbert

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE QUEEN CREEK SUMMIT, LLC, an Arizona limited liability company; RITE OF PASSAGE, INC., a Nevada corporation; CANYON STATE ACADEMY, INC., an Arizona corporation; YOUTH PARTNERS FOUNDATION, an Arizona corporation; BANK OF AMERICA, N.A., a federally chartered banking association, Petitioners, v. THE HONORABLE GLENN DAVIS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, TOWN OF GILBERT, a political subdivision of the State of Arizona, Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-SA 08-0205 DEPARTMENT A O P I N I O N FILED 10-30-08 Petition for Special Action From the Maricopa County Superior Court Cause No. CV 2008-006701 The Honorable Glenn M. Davis, Judge AFFIRMED ________________________________________________________________ Snell & Wilmer L.L.P. Phoenix By Don Bivens Sean J. O Hara Attorneys for Petitioners Ayers & Brown, P.C. Phoenix By Charles K. Ayers Joseph M. Hillegas, Jr. Melinda A. Bird Attorneys for Real Party in Interest ________________________________________________________________ B A R K E R, Judge ¶1 Queen Creek Summit, L.L.C. and the other petitioners (collectively, QCS ) seek special action review of the superior court s denial of their motion for judgment as a matter of law and grant of the Town of Gilbert s ( Gilbert ) Application for Immediate Possession. to meet its burden The superior court found that QCS failed of proving that Gilbert had improperly concluded that the public good of locating its pipeline through the middle of Canyon State Academy outweighed the private injury to QCS. For the reasons set forth below, we affirm. Facts and Procedural Background ¶2 Canyon State Academy is an all-male residential treatment facility and school located in Queen Creek, Arizona, at the intersection of Rittenhouse Road and Hawes Road. March 26, 2008, Gilbert instituted proceedings against On Queen Creek Summit, LLC, the record landowner of the property where the academy is located, among others, to condemn a pipeline easement through the property. order to be let into Gilbert also applied for an possession of the property. Gilbert instituted these proceedings in connection with a public water 2 works project to run a thirteen-mile pipeline from the Central Arizona Project ( CAP ) Canal to the South Water Treatment Plant. ¶3 Gilbert proposed to locate an east-to-west pipeline easement due north of QCS s athletic fields, running through its horse pasture. It would run parallel to and abut an existing fifty-foot wide Bureau of Reclamation ( BOR ) easement on the property, essentially appending twenty feet to that easement. The BOR easement prohibits QCS from building any structures within the easement. ¶4 For the great majority of affected landowners, Gilbert was able to construct the pipeline along the periphery of their properties. Gilbert sited non-periphery easements on four other parcels owned by various government agencies. QCS s property is the only private property where the pipeline would bisect the parcel of land. ¶5 Prior to the hearing on the possession order, QCS deposed Daniel J. Spitza, P.E., the principal engineer in charge of the project team designing and constructing the pipeline. QCS questioned Spitza extensively on Gilbert s Corridor Evaluation Report, a study that analyzed two potential routes for the pipeline: (1) Ocotillo Road and (2) Queen Creek/Pima Road. The report provided a general overview of the monetary and non-monetary impacts involved in routing the line along each 3 of these paths. In its final conclusions and recommendations, the report recommended the route along Queen Creek/Pima Road but specifically noted that [t]he corridor alignment around the Canyon State Academy . . . will be further evaluated during the project s design phase to determine the most feasible alignment in this area. ¶6 In the deposition, Spitza testified that although Gilbert initially contemplated the proposed route in mid-2006, the report specifically left open the alignment details as to QCS s property because of the need for more evaluation and a final determination. At the hearing, he asserted that the report was not intended to delineate where the pipeline would be located on anyone s property. ¶7 In confirmed both that the deposition although and Gilbert at the provided hearing, a Spitza comprehensive evaluation of the monetary and nonmonetary impacts as to the Queen Creek Road corridor (affecting 139 parcels) versus the Ocotillo Road corridor (affecting 216 parcels), the team did not perform a similar evaluation of the different options for siting the pipeline either around or through QCS s single parcel. Spitza Dep. 68:17-71:7, May 23, 2008; H rg Tr. 70, June 13, 4 2008; Corridor Evaluation Report 3, 4.1 However, Spitza testified that he recommended the current pipeline alignment to Gilbert only after several discussions with representatives of QCS, reviewing the different alignment options and coming to a consensus that the current alignment proposed was the preferred option of the representatives. Spitza Dep. 48:4-13, 55:2-13, 61:7-12, 84:9-13, 91:4-6; H rg Tr. 49-51, June 13, 2008; Hr g Tr. 12-13, June 24, 2008. Spitza identified John Motley and Barbara Ross as the representatives of QCS with whom he had conferred.2 Spitza Dep. 48:4-8. Gilbert stipulated that it did not obtain consent from Ski Broman, the 100% owner of Queen Creek Summit, LLC, to construct the pipeline along the proposed route. ¶8 At the hearing, Spitza testified about the difficulties of siting the pipeline along the periphery of QCS s property. He stated that siting the pipeline along QCS s northern border would cost, at least, an additional $850,000 and would be complicated by the Town of Queen Creek s plan to 1 Because of the parties disputes over what is in the record and what is not, e.g., infra ¶ 21, we have included record cites to certain facts. 2 The record does not specifically identify Barbara Ross s and John Motley s respective positions with Petitioners; however, it does indicate that Barbara Ross acted as legal counsel for Queen Creek Summit, LLC, during Spitza s deposition and that John Motley was employed by Rite of Passage, the longterm lessee of the land owned by Queen Creek Summit, LLC. 5 realign Hawes Road. Hr g Tr. 32-34, June 24, 2008. He dismissed siting the pipeline along the western and southern borders of QCS s property because of additional costs related to a number of existing utilities and easements and restricted space for construction. Hr g Tr. 39-40, June 13, 2008. He also rejected building on the existing Queen Creek Road right-of-way running through QCS s property because QCS had constructed a number of buildings within that easement. Id. 48. ¶9 Canyon QCS introduced evidence that State Academy intended to expand its facilities to accommodate more students, including a field house arena built over the BOR easement and possibly built over the location Hr g Tr. 42-50, 57, June 24, 2008. for the proposed pipeline. Rite of Passage, the long- term lessee of the property, planned to fund these expansions. Id. 47. A representative from Rite of Passage testified that he expected BOR to abandon its easement at some point in the future when it was no longer in use. Id. On cross examination, the representative admitted that he knew as early as August 2006 about Gilbert s proposal to construct the pipeline across the property and that, as of June 2008, no construction plans had been filed with the Town of Queen Creek for approval. Id. 51- 53, 57, 62. ¶10 On July 1, 2008, the trial court granted Gilbert s application for the possession order and denied QCS s motion for 6 judgment as a matter of law. In its ruling, the court found that QCS had not met its burden to show on balance that the proposed route is unnecessarily injurious. subsequently granted an order of The trial court immediate possession on July 31, 2008. ¶11 This special action was filed on September 5, 2008, along with a motion to stay the trial court s order of immediate possession. We declined the request for stay on September 8, 2008, and now address the propriety of the possession order. Special action review is appropriate in this case because there is no equally plain, speedy, or adequate remedy by appeal. Ariz. Rev. Stat. ( A.R.S ) § 12-120.21(A)(4) (2003); Ariz. R.P. Spec. Act. 1(a); Orsett/Columbia Ltd. P ship v. Superior Court, 207 Ariz. 130, 132, ¶ 6, 83 P.3d 608, 610 (App. 2004) (accepting special action review of an order of immediate possession, as Orsett s only adequate remedy is through special action ). Discussion 1. Burden of Proof Under A.R.S. § 12-1115(A) ¶12 QCS first argues that A.R.S. § 12-1115(A) imposes an affirmative procedural requirement on the condemnor to establish a prima facie case that it complied with A.R.S. § 121115(A). QCS relies primarily upon the language in § 12-1115(A) for its argument. Section 12-1115(A) provides that [w]here land is required for public use, the state, or its agents in 7 charge of such use, may survey and locate the land, but it shall be located in the manner which will be most compatible with the greatest public good and the least private injury. added.) We disagree with QCS. (Emphasis As described below, the Arizona Supreme Court s construction of A.R.S. § 12-1115(A) in Chambers v. State ex rel. Morrison, 82 Ariz. 278, 284, 312 P.2d 155, 159 (1957), forecloses this argument. ¶13 In Chambers, the defendant landowner, relying on A.R.S. § 12-1115, asserted that the trial court erred by not considering that she would suffer private injury if the land was condemned because she had promised the land to a priest to be used for a student center. Id. at 283-84, 312 P.2d at 159. In interpreting the requirements under A.R.S. § 12-1115, the court specifically accepted two propositions from California case law as reasonable interpretations of A.R.S. § 12-1115(A): (1) that [t]his provision . . . require[s] a balancing of the greatest public good and the least private injury in locating land for condemnation and (2) that it is not necessary for the state to plead compliance with the above provision, but that the defendant must make it an issue (by his pleadings or otherwise); and if it then becomes an issue the defendant has the burden of proof. Id. (emphasis added). Chambers expressly places the burden on the landowner to prove noncompliance with A.R.S. § 121115 and not the condemnor. 8 ¶14 QCS additionally cites Phoenix v. Harnish, 214 Ariz. 158, 160 n.1, ¶ 3, 150 P.3d 245, 247 n.1 (App. 2006), as support that Arizona law requires Gilbert to establish a prima facie case that it evaluated and balanced the least private injury to QCS. We do not find that Harnish s summary statement that the plaintiffs in that case had met the requirements of A.R.S. § 121115 undermines the clear directive from Chambers that condemnor need not plead compliance with A.R.S § 12-1115. the Nor are we persuaded by QCS s citation to California and Montana case law. Accordingly, we find that the trial court appropriately placed the burden on QCS to prove that Gilbert did not properly comply with A.R.S. § 12-1115(A). 2. Applicable Evidentiary Standard Under Chambers ¶15 prove QCS next argues that it did not bear the burden to that the middle-of-campus pipeline was injurious by clear and convincing evidence. unnecessarily QCS asserts that the applicable standard for rebutting a condemnor s claim of compliance evidence. ¶16 with A.R.S. § 12-1115 is preponderance of the We disagree. In analyzing the balancing of the greatest public good against a landowner s private injury, the Chambers court relied upon and quoted Montebello Unified School District Angeles v. Keay, 131 P.2d 384 (Cal. Dist. Ct. App. 1942): 9 of Los And we think that when an attempt is made to show that the location made is unnecessarily injurious the proof ought to be clear and convincing, for otherwise no location could ever be made. If the first selection made on behalf of the public could be set aside on slight or doubtful proof, a second selection would be set aside in the same manner, and so ad infinitum. The improvement could never be secured, because, whatever location was proposed, it could be defeated by showing another just as good. Chambers, 82 Ariz. at 284-85, 312 P.2d at 159 (emphasis added). We consider Chambers to establish a clear and convincing standard as the burden of proof, and therefore we reject QCS s assertion that a rebuttal defense need be proved by only a preponderance of the evidence. ¶17 QCS asserts that Chambers does not apply in this case because Gilbert s witness admitted that Gilbert made no effort to ascertain QCS s private injury. For the reasons stated herein, we disagree with QCS and find that Gilbert did take into consideration QCS s private injury. See infra ¶ 26. We therefore reject this argument. ¶18 language QCS in condemnation additionally Chambers, procedures we asserts the notwithstanding differences warrant are that a bound in different to follow the California s standard supreme for Arizona. However, court precedent. Espinosa v. Indus. Comm'n, 170 Ariz. 354, 359, 824 P.2d 750, 755 (App. 1991) ( This court must follow supreme court 10 authority. ); see also Hancock v. Bisnar, 212 Ariz. 344, 349, ¶ 22, 132 P.3d 283, 288 (2006) ( The strength of [the stare decisis] doctrine is at its apex when prior decisions construe a statute. ) (quoting Galloway v. Vanderpool, 205 Ariz. 252, 256, ¶ 16, 69 P.3d 23, 27 (2003)). Accordingly, it was not error for the trial court to require QCS to prove by clear and convincing evidence that the proposed location of the pipeline was unnecessarily injurious. 3. Scope of Least Private Injury Inquiry ¶19 QCS also argues that the trial court erred in considering the least private injury to other landowners on the thirteen-mile pipeline as a substitute for Gilbert s failure to consider the least private injury to QCS. Section 12-1115 requires the land to be located in the manner which will be most compatible with the greatest public good and the least private injury. We agree that the requirement to balance the least private injury may require both a collective inquiry and one that is specific to each landowner. agree that Gilbert failed to consider However, we do not QCS s least private injury, and we do not agree that the trial court allowed Gilbert to consider the injury to other landowners as a substitute for considering the private injury to QCS. ¶20 Additionally, specific procedure for A.R.S. § 12-1115 evaluating 11 does least not private mandate a injury. Section 12-1115 prepare an does not exhaustive expressly corridor individual property owner. require evaluation the condemnor report for to each Therefore, we do not impose such a requirement on Gilbert. ¶21 We find that Gilbert properly evaluated and considered the private injury to QCS. QCS argues there is no evidence in the record to support this. However, the record indicates that Gilbert went to great lengths to engage QCS in the process of choosing an alignment on its property. The principal engineer in charge of the project team designing and constructing the pipeline, Dan Spitza, met with QCS representatives on multiple occasions to discuss pipeline alignment options affecting the property. 61:7-12, Spitza Dep. 78:4-10. alignment to 6:2-5, Spitza Gilbert 47:20-23, recommended because the 48:4-7, the 65:4-20. never with spoke Ski QCS repeatedly Broman, pipeline 100% of QCS Id. 48:4-7, 55:8-13, emphasized owner of that Spitza Queen Creek Summit, LLC, and never formally obtained Broman s consent. Hr g Tr. 30, 38, June 24, 2008. the current representatives expressed a preference for that location. 58:13-59:5, 54:19-55:13, However, Spitza testified that he had attempted to contact Broman on multiple occasions and never received a response. that the Spitza Dep. 67:1-6. representatives he conferred could discuss their meetings with Broman. 12 with He also testified stated Id. 56:8-10. that they ¶22 The trial court s minute entry confirms that the court did not permit Gilbert to consider the private injury of other landowners injury. as a substitute for considering QCS s private Rather, the trial court expressly found that Gilbert had considered QCS s private injury in locating the pipeline: There was obviously some consideration by [Gilbert] of the impact of running the pipeline across Defendants property. There was consideration of the existing buildings and existing use of the property as well as existing facilities and a Bureau of Reclamation easement. The decision to place the pipeline at the proposed location took into consideration the potential private injury to Defendants. This is clear from the decision not to run the pipeline along an alternative right of way across the property farther to the north, due to the location of existing buildings. . . . . [Gilbert] weighed the private impact of taking the pipeline across the Defendants property against the complications, expense and delay of running the pipeline around the property in question. . . . . . . . . . . Even if it did not consider specific plans the Defendants had for use of the property, they did consider impact and potential injury to Defendants of the route. the the the the In addition to those facts just mentioned, these findings are supported throughout the record. ¶¶ 27, 28, 33-34. See supra ¶¶ 3, 7, 8 and infra Thus, the trial court did not err as to the 13 proper scope of the least private injury prong under A.R.S. § 12-1115(A). There was a factual basis for the trial court s finding. 4. The Balancing Analysis3 ¶23 QCS argues that the trial court erred by ruling that Gilbert had properly considered and balanced the least private injury to QCS, contending that Gilbert ignored its own published determination that the pipeline should go around the school, as with every other private property affected by the project. QCS bases its assertion on depictions of potential pipeline routes found in Appendix Evaluation Report. E of Gilbert s Corridor We disagree. ¶24 E Appendix is entitled Corridor Parcel Survey Information, and it provides an illustrative comparison of the number of parcels versus the Report App. recommending Queen E. a affected Creek The along Road report particular the Ocotillo corridor. makes pipeline 3 clear Road Corridor that alignment Evaluation it as corridor was to not QCS s Gilbert argues that because QCS stipulated to public necessity the issue is foreclosed. QCS stated: Accordingly, [Gilbert s] determination that an easement is necessary never relieves [Gilbert] of its separate legal obligation to locate that easement consistent with the greatest public good and least private injury. We do not find that this statement is a stipulation to necessity. Nor need we decide whether the location analysis is a subpart of the necessity inquiry in this case. 14 property. report QCS s The Conclusions and Recommendations section of the expressly property coordination. reserved for the Id. 13. determination future after of the further alignment evaluation on and Moreover, the record indicates that QCS knew of the currently proposed pipeline alignment prior to the publication of the Corridor Evaluation Report. Hr g Tr. 62, June 24, 2008; Spitza Dep. 35:21-24. ¶25 In balancing the private injury to QCS against the greatest public good, we find that substantial evidence supports the trial court s decision. As to the greatest public good consideration, Gilbert testified that the periphery routes would be more expensive complications than and the would chosen involve more alignment. Hr g delays Tr. and 32-40, June 24, 2008. ¶26 As to private injury, QCS asserted that there were plans to expand Canyon State Academy and possibly build a field house over the same location as the pipeline. However, QCS could not verify whether would conflict with the easement. the Id. 56-57. Id. 47-50, 57. planned structure QCS admitted that it had not filed a preliminary application with the Town of Queen Creek for this expansion. ¶27 Id. 52-53. In contrast to QCS s asserted plans, QCS s improvement plan, which the Town of Queen Creek approved in January 2007, indicated that QCS intended to place two water retention areas 15 and a parking lot over the proposed path of the pipeline. Tr. 36-37, 53, June 24, 2008. Hr g QCS admitted that a pipeline would not prevent it from using that area for retention areas and a parking lot. ¶28 Id. 53-54. On this evidence, the trial court was not persuaded by QCS s showing of injury. In finding that QCS failed to meet its burden, the court explained: Defendants raise the issue of whether [Gilbert] properly considered the issue of private injury in making the decision to locate the pipeline as proposed because certain facts were not taken into consideration by [Gilbert], including the property owner s future plans for use of the property in question. Evidence presented at the hearing established that the owner of the property had some proposed plans for expansion of the school in question. No detailed final master plan was put in evidence, but there was testimony that the expansion as planned would be incompatible with the pipeline location across the campus. The planning appeared to be in a preliminary state. There was testimony as to the possibility that the Bureau of Reclamation easement might be abandoned in order for the expansion to be done. No evidence was offered that established that there was a significant probability that the existing easement might be abandoned nor was there any evidence of any affirmative or formal steps undertaken to cause the existing easement to be abandoned. Furthermore, no evidence was offered that established why the campus expansion plan could not be modified to work around 16 the pipeline location. It is undisputed that there are a number of uses the property owner could make of the land over the pipeline, including roads, parking lots and more. (Emphasis added.) ¶29 We conclude that substantial evidence in the record supports the trial court s decision that QCS failed to prove that Gilbert improperly balanced the greatest public good and least private injury. 5. Equal Protection ¶30 QCS next argues that Gilbert violated QCS s equal privileges and equal protection under the Arizona Constitution and the United States Constitution because Gilbert applied A.R.S. § 12-1115(A) disparately to [QCS] with no rational basis for doing primarily so. on QCS the bases fact that its for equal the protection vast majority argument of the properties in the thirteen-mile corridor, Gilbert was able to site the pipeline along property perimeters. ¶31 Arizona s equal privileges clause provides that no law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens Similarly, [n]o or corporations. the State federal shall . Equal . . Ariz. Const. Protection deny 17 to art. Clause any § 13. provides that person 2, within its jurisdiction the equal protection of the laws. amend. XIV, § 1. U.S. Const. The Equal Protection and Equal Privileges Clauses essentially direct that all persons similarly situated should be treated alike. Center, 473 U.S. 432, City of Cleburne v. Cleburne Living 439 (1985); Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 494, ¶ 25, 88 P.3d 557, 564 (App. 2003) ( Equal Protection is . . . intended only to require equal treatment of persons similarly situated in a given class . . . . ) (quoting Lindsay v. Indus. Comm n, 115 Ariz. 254, 256, 564 P.2d 943, 945 (App. 1977)). ¶32 We apply the rational basis test to determine the constitutionality of Gilbert s decision to locate the pipeline in the middle of Canyon State Academy s campus. City of Cleburne, 473 U.S. at 440; Lindsay, 207 Ariz. at 494, ¶ 28, 88 P.3d at 564. Under the rational basis test, official action is presumed to be valid and will be sustained if the classification drawn . . interest. parties . is rationally related to a legitimate City of Cleburne, 473 U.S. at 440. contest that Gilbert has a legitimate state None of the interest in constructing a pipeline connecting the CAP Canal to the South Water Treatment Plant. ¶33 not Gilbert asserts, and we agree, that QCS s property is similarly situated to the 18 other properties along the proposed route.4 pipeline At the hearing, Gilbert provided evidence that it was able to do much of its construction in the Queen Creek right-of-way. H rg Tr. 28, June 13, 2008. However, Gilbert did not prefer this approach for QCS s property because of the number of existing buildings in the Queen Creek right-ofway. Id. 48. ¶34 Even if QCS s property were similarly situated to the other properties along the route, ample evidence in the record indicates a rational basis for Gilbert s decision to locate the pipeline across rather than around QCS s property. At the hearing, Gilbert s witness testified at length that the perimeter routes would involve additional costs, complications, obstacles, and delays beyond those involved with the proposed route. Id. 36-46. Conserving public rational basis for Gilbert s decision. funds and time is a Accordingly, we hold that Gilbert did not violate QCS s equal protection rights and equal privileges. 4 Gilbert also asserts that QCS waived this argument because QCS raised it for the first time in its motion for new trial. Because we conclude there is no equal protection violation, we need not decide this issue. 19 Conclusion ¶35 For the foregoing reasons, we affirm the trial court s judgment and order of immediate possession. ____________________________ DANIEL A. BARKER, Judge __________________________________ MICHAEL J. BROWN, Presiding Judge __________________________________ ANN A. SCOTT TIMMER, Chief Judge 20

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