Appeal
from the Superior Court in Maricopa County No. LC
2015-000267-001 The Honorable Connie Contes, Judge
Gillespie, Shields, Goldfarb, Taylor & Houk, Phoenix By
Kristina B. Reeves, April Maxwell Counsel for
Plaintiff/Appellant
Burch
& Cracchiolo PA, Phoenix By Daryl Manhart, Andrew
Abraham, Casey S. Blais Co-Counsel for Defendants/Appellees
Phoenix City Attorney's Office, Phoenix By Brad Holm
Co-Counsel for Defendants/Appellees
Presiding Judge Michael J. Brown delivered the opinion of the
Court, in which Judge Kenton D. Jones and Judge Lawrence F.
Winthrop joined.
OPINION
BROWN,
JUDGE
¶1
Contreras Farms Limited, LLC ("CFL") appeals the
superior court's order finding that under state law CFL
was not entitled to administratively appeal a requirement to
construct a water main pursuant to Phoenix City Code §
37-33(a). For the following reasons, we affirm.
BACKGROUND
¶2
Arizona law, by statute, gives property owners the right to
an administrative appeal when a city or town requires
"a[n] exaction as a condition of granting approval for
the use, improvement or development of real property."
A.R.S. § 9-500.12(A)(1).[1] The right to pursue such an
appeal, however, "does not apply to a[n] . . . exaction
required in a legislative act by the governing body of a city
or town that does not give discretion to the administrative
agency or official to determine the [exaction's] nature
or extent." A.R.S. § 9-500.12(A)(1). In this case,
we address the interplay between § 9-500.12 and a
specific mandate in Phoenix City Code § 37-33(a) that
requires developers to "furnish and install . . . all
water mains . . . within the boundary of the development as
well as the streets bounding the entire development."
¶3
The material facts relevant to this issue are undisputed.
Near the end of 2013, Entellus, Inc., a civil engineering
firm, submitted plans to the City of Phoenix Planning &
Development Department ("Department") on CFL's
behalf to build a charter school at 4275 West Baseline Road
(the "Property"), located at the southeast corner
of the 43rd Avenue and Baseline intersection.[2] As relevant here,
the Department responded that there were no issues as to the
existing 12-inch water main along Baseline Road but that
under "City Code 37-33 . . . [a] 12-inch main extension
will be required to be installed from Baseline to the south
property line" along 43rd Avenue. Shortly thereafter,
CFL started construction of the charter school project.
¶4
Meanwhile, Entellus filed a technical appeal with the Water
Services Technical Appeals Committee ("Committee")
requesting that "the requirement to install a [] 12
[inch] water main extension in 43rd Avenue be deleted."
Entellus explained that (1) an existing water main was
operational in the original alignment of 43rd Ave; (2) the
City's water system was already operating "very
robustly in the vicinity of the school site"; and (3)
because the school would be connecting to the water main on
Baseline, it would not use or benefit from the required main
along 43rd Avenue. The Committee denied the technical appeal
"on the basis that [§ 37-33] requires all projects
to install water mains along each of its project's
boundaries within paved public streets." (Emphasis
added.)
¶5
Entellus contacted the Committee, asking what the next level
of appeal would be. The Committee informed Entellus that
§ 37-33 could not be waived, but CFL could attempt to
"demonstrate how the intent of the Code was already
met," and the Director "may modify or interpret the
code in a way that agrees with your rationale." The
Committee noted, however, it would be difficult to show that
deleting the required water main extension would fit within
the Code's intent because "the City Code is pretty
clear when requiring that all developments bound their
site[s] with water." (Emphasis added.) CFL
did not appeal the Committee's decision and proceeded
with constructing the 43rd Avenue water main.
¶6
In March 2015, CFL sent the City a demand letter requesting
an exaction appeal under A.R.S. § 9-500.12(A)(1) to
challenge the City's decision to require installation of
the 43rd Avenue water main. The City denied CFL's
request, stating that "[t]he requirement [CFL] wishes to
appeal is mandated by the City Code and therefore not subject
to the appeal process described in A.R.S. §
9-500.12." CFL filed a complaint for special action in
the superior court seeking declaratory relief and damages.
The court granted summary judgment in favor of the City,
concluding that "[§] 37-33 . . . is generally
applicable, giving no discretion to the City to deviate from
its City-wide ...