Contreras Farms Limited LLC v. City of Phoenix

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          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:

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         [¶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 ...