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Boruch v. State ex rel. Halikowski

Court of Appeals of Arizona, First Division

June 20, 2017

MARY C. BORUCH, an individual; et al., Plaintiffs/Appellants,
v.
STATE OF ARIZONA ex rel. JOHN HALIKOWSKI, Director of the ARIZONA DEPARTMENT OF TRANSPORTATION; CITY OF MESA, an Arizona municipal corporation, Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2014-014115 The Honorable Randall H. Warner, Judge

          Moyes Sellers & Hendricks, Phoenix By Keith L. Hendricks, Louis D. Lopez, Stephen Brower Counsel for Plaintiffs/Appellants

          Arizona Attorney General's Office, Phoenix By Ron J. Aschenbach, Joe Acosta, Jr. Co-Counsel for Defendant/Appellee State of Arizona

          Fennemore Craig PC, Phoenix By Douglas C. Northup Co-Counsel for Defendant/Appellee State of Arizona

          Mesa City Attorney's Office, Mesa By Marc T. Steadman Co-Counsel for Defendant/Appellee City of Mesa

          Jones Skelton & Hochuli, PLC, Phoenix By Robert R. Berk, Lori L. Voepel, Jennifer B. Anderson Co-Counsel for Defendant/Appellee City of Mesa

          Judge Patricia K. Norris delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

          OPINION

          NORRIS, Judge.

         ¶1 This appeal arises out of the superior court's dismissal of a complaint filed by homeowners and renters in three Mesa subdivisions to enjoin the City of Mesa and the State, through the Arizona Department of Transportation ("ADOT"), from diverting and channeling excess storm water onto their properties. The dispositive issue on appeal is whether Arizona Revised Statutes ("A.R.S.") section 12-1802 (2016) precludes the superior court from granting the requested injunctive relief. Because A.R.S. § 12-1802 does not bar the injunctive relief requested in the complaint, we reverse the superior court's dismissal of the complaint and remand for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL BACKGROUND[1]

         ¶2 The City operates a sewer drainage system for managing storm water, which is connected to numerous retention basins, including a City-owned park, Emerald Park. The State, through the ADOT, controls a channel which it uses to collect storm water from a portion of the U.S. Route 60 highway ("U.S. 60"). Combined, the City and State (collectively, "Defendants") use the drainage system and channel (collectively, the "System"), in part, to divert, channel, and retain storm water from the U.S. 60 and other areas of the City into retention basins, including Emerald Park.

         ¶3 Emerald Park is a terminal retention basin for most of the storm water collected from the U.S. 60 and from approximately 20 square miles of the City (the "Tributary Area"), because it does not have an effective emergency overflow system which would allow storm water to be pushed further downstream in the event Emerald Park overflows. Thus, Emerald Park operates as the end-point retention basin for most of the storm water Defendants receive from the U.S. 60 and Tributary Area.

         ¶4 During the morning of September 8, 2014, heavy rains fell in the City. Rain continued until about ten a.m. Although Emerald Park collected some water from the storm, by the time the rain stopped Emerald Park was not at full capacity. Several hours after the rain had stopped, the rainwater that had fallen and collected in and around three subdivisions in the City - where the Plaintiffs owned or rented homes -had begun to recede.

         ¶5 After that, however, Defendants collected, concentrated, and pumped excess storm water from the U.S. 60 and the Tributary Area into Emerald Park. Because Emerald Park did not have an effective form of emergency overflow relief, the storm water flooded onto Plaintiffs' neighborhoods, homes, and properties. Even after the storm water inundated the Plaintiffs' neighborhoods, homes, and properties, Defendants continued to concentrate and divert storm water into Emerald Park. Indeed, the State rejected the City's request to pump water from Emerald Park back into the channel. The flooding significantly damaged the Plaintiffs' homes and properties.

         ¶6 Plaintiffs sued Defendants alleging, in part, that Defendants had negligently operated the System and used their properties as "ad hoc" overflow relief for Emerald Park without just compensation in violation of the Arizona Constitution. Plaintiffs asked the superior court to enjoin Defendants from operating the System in a manner that concentrated and diverted storm water into Emerald Park without effective overflow relief. Specifically, Plaintiffs requested the superior court enjoin Defendants from:

(a) using the real and personal property of [Plaintiffs] as an ad hoc overflow relief for Emerald Park without due process or just compensation; (b) concentrating and diverting water into Emerald Park beyond its capacity unless and until an effective Overflow Relief is provided; (c) operating the [System] in such a manner as to make Emerald Park the retention basin of last resort in the Tributary Area; and (d) collecting storm water from the U.S. 60 or Tributary Area and pumping or otherwise sending it to Emerald Park-whether through the Storm Sewer Pipes or Channels-so as to exceed its capacity and overflow into the neighborhoods and properties of the [Plaintiffs].

         ¶7 The State moved to dismiss Plaintiffs' complaint arguing, in part, A.R.S. § 12-1802(4) and (6) prohibited the superior court from granting the requested injunctive relief. Section 12-1802(4) states that an injunction shall not be granted "[t]o prevent enforcement of a public statute by officers of the law for the public benefit, " and, A.R.S. § 12-1802(6) states an injunction shall not be granted "[t]o prevent the exercise of a public or private office in a lawful manner by the person in possession." Treating both subsections as if they were identical, the State generally argued A.R.S. § 12-1802(4) and (6) barred injunctive relief to prevent a state agency from performing its statutory duties. Thus, it argued the superior court could not grant the requested injunctive relief because Plaintiffs ...


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