Colfred v. Yuma

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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 COLFRED RANCH, L.L.C. an Arizona limited liability company, ) ) ) ) Plaintiff/Appellee, ) ) v. ) ) YUMA COUNTY BOARD OF SUPERVISORS, ) ) Defendant/Appellant. ) __________________________________) DIVISION ONE FILED: 06/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CV 10-0546 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yuma County Cause No. S1400CV200801318 The Honorable Larry C. Kenworthy, Judge REVERSED AND REMANDED Jon R. Smith, Yuma County Attorney by Edward P. Feheley, Deputy County Attorney Attorneys for Defendant/Appellant Yuma P O R T L E Y, Judge ¶1 appeals Yuma the County superior by its court Board order of Supervisors vacating its ( Board ) decision that affirmed a hearing officer s determination that Colfred Ranch ( Colfred ) violated a Yuma County Zoning Ordinance ( Ordinance ). For the reasons that follow, we reverse and remand the case with instructions to affirm the fine against Colfred. FACTS AND PROCEDURAL HISTORY 1 ¶2 Colfred is a Yuma County ranch of approximately twenty acres. It was cited for failing to obtain grading and floodplain use permits in violation of Ordinance § 309.00(A) & (D). After a contested hearing, the hearing officer found that Colfred violated two provisions of the Ordinance and fined it $10,000. Colfred appealed, and the Board affirmed. The superior court, however, vacated the decision and remanded it back to the Board. We have jurisdiction over the Board s appeal pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-913 (2003). DISCUSSION ¶3 the The Board argues that the superior court erred because hearing evidence. ¶4 officer s 1 was supported by substantial We agree. On appeal administrative agency s decision from agency s decision Colfred has not treat the failure the merits of the 101, 887 P.2d 631, was the superior decision, illegal, we court s review examine arbitrary, of whether capricious, an the or filed an answering brief. Although we may as a confession of error, we choose to reach case. See Nydam v. Crawford, 181 Ariz. 101, 631 (App. 1994). 2 involved an abuse of discretion. See A.R.S. § 12-910(E) (2003); see also Koepnick v. Ariz. State Land Dep t, 221 Ariz. 370, 374, ¶ 7, 212 P.3d sufficiency of 62, the 66 (App. evidence, 2009). we When review the reviewing record and the any supplementing evidence to determine whether substantial evidence supports the decision and whether the agency exercised its discretion reasonably and with due consideration, see A.R.S. § 12-910(A) (B); see also Callen v. Rodgers, 216 Ariz. 499, 502, ¶ 9, 168 P.3d 907, 910 (App. interpretations of law de novo. 2007). But, we review Forest Guardians v. Wells, 201 Ariz. 255, 259, ¶ 9, 34 P.3d 364, 368 (2001). ¶5 To resolve this appeal, we examine whether Colfred is exempt from Yuma County zoning regulations under A.R.S. § 11830(A)(2) (2001), and whether there was substantial evidence that Colfred violated Ordinance § 309.00(A) & (D). ¶6 that Section 11-830(A)(2), and Ordinance § 306.02, provide property property is is larger exempt than from five land use contiguous regulations acres. if the Ordinance § 306.03, however, states that property is not considered exempt from the . . . Ordinance . . . unless and until the Yuma County Planning and Zoning Division Exemption for that property. can obtain an exemption, has issued a Certificate of Additionally, before a landowner the 3 land must be classified as agricultural by the Yuma County Assessor s Office or the Arizona Department of Revenue. ¶7 In Supervisors, Raven we See Ordinance § 306.03. Rock found Construction, that A.R.S. § L.L.C. v. Board 11-802 (Supp. of 2010) authorized a county s board of supervisors to adopt and enforce such rules, regulations, ordinances and plans as may apply to the development of its area of jurisdiction. 139, ¶ 17, 83 P.3d 613, 617 (App. 2004). 207 Ariz. 135, Additionally, we held that counties may require classification of property because it is not a use restriction under A.R.S. § 11-830(A)(2), but merely a matter of procedure. Id. at 139-40, ¶ 19, 83 P.3d at 617-18. Consequently, landowners must comply with county ordinances to have land properly classified. ¶8 Although there was testimony that Colfred intended to use the twenty-acre plot as farmland and had been preparing the plot for farming, there was also testimony that Colfred had not applied for a Certificate of Exemption and that the plot had not been classified as agricultural. Because Colfred had not applied for a Certificate of Exemption as required by § 306.03, it was not exempt from Yuma County s zoning ordinances. Raven Rock, 207 Ariz. at 140, ¶ 22, 83 P.3d at 618. 4 See ¶9 Because Colfred ordinances, we existed support to sections of Permits, states leveling or must the is next not exempt determine the finding if part, Colfred Ordinance in relevant excavation been shall made be and § that [n]o proper County evidence 2 violated 309.00(A), commenced, the Yuma substantial that Ordinance. from entitled grading, . . permit two land . until has been application has obtained. Moreover, the Ordinance provides that a floodplain use permit for any development within Special Flood Hazard Areas is required pursuant to Yuma County s Floodplain Regulation. Ordinance § 309.00(D). ¶10 The senior civil engineer for the Yuma Flood Control District testified that a majority of the Colfred plot was in the floodplain and Colfred did not have a floodplain use permit. Although zoning Colfred inspector lacked a testified floodplain that he use saw permit, concrete the and deputy other material that had been dumped, buried with dirt, and leveled on the plot. Because the testimony was uncontroverted, there was substantial evidence to support the hearing officer s finding that Colfred violated two provisions of the Ordinance. 2 Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a finding that Colfred violated the Ordinance. See State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)) (internal quotation marks omitted). 5 ¶11 The superior remanded it, and court, instructed however, the Board vacated the to a hold decision, hearing to determine if the fine should be upheld or modified if Colfred applied for and obtained the Certificate of Exemption. There was no legal basis for the court to vacate the Board s approval of the hearing officer s findings and decision. Because there is sufficient evidence in the record to support the findings of fact and judgment, United California Bank v. Prudential Insurance Co. of America, 140 Ariz. 238, 308, 681 P.2d 390, 460 (App. 1983), we reverse the superior court s order and affirm the fine against Colfred. CONCLUSION ¶12 court s For order the and foregoing remand reasons, with we reverse instructions to the superior affirm the determination of the Board. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ LAWRENCE F. WINTHROP Judge /s/ ______________________________ ROGER BRODMAN, JUDGE Pursuant to Article VI, Section 3 of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Roger Brodman, Judge of the Maricopa County Superior Court, to sit in this matter. 6

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