Trotter v. Maricopa County ( 2023 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CAROLINE TROTTER, Plaintiff/Appellant,
v.
MARICOPA COUNTY, et al., Defendants/Appellees.
No. 1 CA-CV 22-0449
FILED 3-7-2023
Appeal from the Superior Court in Maricopa County
No. CV2021-093749
The Honorable Stephen M. Hopkins, Judge, Retired
AFFIRMED IN PART AND DISMISSED IN PART
COUNSEL
Arizona Justice Center, Glendale
By Steven R. Simon
Counsel for Plaintiff/Appellant
Maricopa County Attorney’s Office, Phoenix
By Wayne J. Peck, Joseph J. Branco, Jonathan C. Simon, Sean M. Moore
Counsel for Defendants/Appellees Maricopa County
TROTTER v. MARICOPA COUNTY, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.
T H U M M A, Judge:
¶1 Plaintiff Caroline Trotter appeals from a judgment affirming
a decision of the Maricopa County Board of Adjustment finding she
violated a County lighting ordinance and fining her $350. Although the
Maricopa County Planning and Development Department (Department) is
a non-jural entity and is dismissed as a party, because Trotter has shown no
error, the judgment otherwise is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In 2020, the Department received various complaints that
Trotter’s landscaping lights at her Sun West home were directed at
neighboring homes in violation of Maricopa County Zoning Ordinances
(MCZO). The complaints followed a pattern. The Department would
receive a complaint, investigate and determine that Trotter’s lights were
directed toward a neighboring property. The Department would direct
Trotter to redirect those lights to comply and she would do so; but a new
complaint would be made; the Department would investigate and, again,
find Trotter’s lights directed toward a neighboring property. They would
then again direct Trotter to redirect those lights to comply.
¶3 Given this pattern, in September 2020, the Department sent
Trotter a Notice and Order to Comply, advising her to comply with the
MCZO by November 2, 2020, or face fines of up to $750 per day. Trotter
redirected the lights during an inspection on November 4, 2020, where
Department Inspector Charles Hart noted Trotter “replaced the majority of
the LED type lights with halogen type lights.” An inspection on November
20, 2020, revealed the lights Trotter redirected on November 4, 2020, had
been moved again to “produce light trespass onto a neighboring property.”
¶4 In December 2020, the Department issued a summons,
asserting Trotter violated MCZO § 1112 - Outdoor Light Control Provisions,
and setting an administrative hearing, to be held in March 2021. During a
subsequent visit to Trotter’s property, Hart again directed Trotter to
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TROTTER v. MARICOPA COUNTY, et al.
Decision of the Court
redirect her lights and she did so. During Hart’s visit the day before the
hearing, he noted the lights previously directed at her neighbors had been
readjusted or shut off.
¶5 During the hearing before a Department hearing officer, Hart
testified about Trotter’s repeated MCZO violations. Trotter did not cross-
examine Hart or question his statements. Instead, Trotter argued her
halogen lights should be characterized as low wattage incandescent lights
exempt from shielding and lighting direction requirements under the
MCZO. The hearing officer found “insufficient evidence exists in the
record” to support her argument that the lights were exempt, found Trotter
violated the shielding and lighting direction requirements of the MCZO
and fined her $350. Trotter appealed to the Board of Adjustment, which
after hearing from Hart, Trotter’s attorney and others, affirmed the hearing
officer’s decision by a vote of 5-0.
¶6 Trotter then filed a verified complaint in superior court,
seeking to challenge the Board’s decision and naming as defendants the
Department, the Department’s Director, the Board and Maricopa County.
Defendants moved to dismiss for lack of jurisdiction, claiming Trotter
improperly filed a verified complaint as opposed to a notice of appeal and
that the Department was a non-jural entity, incapable of being sued. See
Ariz. Rev. Stat. (A.R.S.) § 12-904; Ariz. R.P. Jud. Rev. Admin. Dec. (JRAD) 4
(2023).1 Trotter opposed the motion, which the superior court denied. After
full briefing and oral argument, the court rejected Trotter’s challenge to the
Board’s decision. Trotter filed a timely notice of appeal from that judgment.
DISCUSSION
¶7 Trotter’s challenge to the Board’s decision, authorized by
A.R.S. § 11-816(B)(3), is pursuant to the Administrative Review Act (ARA),
see A.R.S. §§ 12–901 to –914. Under the ARA, the Board’s decision is to be
affirmed “unless the court concludes that the agency’s action is contrary to
law, is not supported by substantial evidence, is arbitrary and capricious or
is an abuse of discretion.” A.R.S. § 12-910(F). Factual issues are reviewed
for an abuse of discretion, while questions of law, including whether Trotter
properly invoked the court’s jurisdiction, are reviewed de novo. See Ariz.
Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs., 242 Ariz. 62, 65 ¶ 8 (App.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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TROTTER v. MARICOPA COUNTY, et al.
Decision of the Court
2017); accord Shea v. Maricopa Cnty., 253 Ariz. 286, 289 ¶ 10 (App. 2022), rev.
granted, Dec. 6, 2022.
I. The Superior Court Had Jurisdiction Over the Case.
¶8 Defendants argue the superior court, and this court, lack
jurisdiction because Trotter failed to comply with A.R.S. § 12-904 and JRAD
4. A party seeking judicial review over a Board decision must comply with
procedural requirements. See A.R.S. § 11-816(B)(3); MCZO § 1504.3.11; see
also JRAD 1(a), 4. A timely notice of appeal filed with the superior court is
required to initiate such review. A.R.S. § 12-904(A); JRAD 4(a). The notice
of appeal must designate the Board decision being challenged and list the
issues presented for review, among other things. JRAD 4(c); accord A.R.S.
§§ 12-904(A), -909(A). JRAD Form 1 provides “a template for the notice of
appeal.” JRAD 4(a). A party seeking to seek judicial review must do so by
making the necessary filing in a timely manner, in the right place and in the
proper form. Shea, 253 Ariz. at 289 ¶ 12.
¶9 Trotter, through her attorney, did not file a notice of appeal
using JRAD Form 1. Citing Shea, defendants argue that failure means
Trotter did not properly invoke judicial review. Shea, decided after the
superior court denied defendants’ motion to dismiss, found a “Verified
Complaint for Special Action” that did not cite the ARA, did not identify
the Board decision being challenged and did not specify the issues being
raised, failed to properly invoke jurisdiction for judicial review. See 253
Ariz. at 290 ¶ 16. In reaching that conclusion, Shea stated that mislabeling
the caption or other technical flaws would not necessarily mean a party
failed to properly invoke judicial review. Id. at 290 ¶ 17.
¶10 Here, Trotter filed the complaint in a timely manner and in
the right place, but did not properly caption the appeal as a notice of appeal
and generically alleged that jurisdiction was proper in the court. Unlike
Shea, however, Trotter specified which Board decision she was challenging,
and the issues presented for review. See JRAD 4(c); A.R.S. § 12-904. Given
this, Trotter’s technical error in failing to use JRAD Form 1 did not mean
she failed to invoke judicial review. See Shea, 253 Ariz. at 290 ¶ 17. Because
Trotter identified the Board decision she was challenging and the issues she
was pressing and sought judicial review by timely filing in the proper place,
the superior court properly had jurisdiction over her challenge.
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TROTTER v. MARICOPA COUNTY, et al.
Decision of the Court
II. The Department Is a Non-Jural Entity and Is Dismissed.
¶11 Defendants argue the Department is a non-jural party that
cannot be sued and, as a result, should be dismissed as a party.2 A court has
no jurisdiction over a party unless it “legally exists and is legally capable of
being sued.” Yamamoto v. Santa Cruz Cnty. Bd. of Supervisors, 124 Ariz. 538,
539 (App. 1979). “[D]epartments and subordinate entities of . . . counties . . .
that are not separate legal entities or bodies do not have the capacity to sue
or be sued in the absence of specific statutory authority.” Braillard v.
Maricopa Cnty., 224 Ariz. 481, 487 ¶ 12 (App. 2010) (citation omitted).
Although Trotter cites three opinions where other county departments
were named defendants, none of those cases involved the Department or
addressed whether the county departments involved were non-jural
entities. See Ponderosa Fire Dist. v. Coconino Cnty., 235 Ariz. 597 (App. 2014);
Andrew S. Arena, Inc. v. Superior Court, 163 Ariz. 423 (1990); Cochise Cnty. v.
Helm, 130 Ariz. 262 (App. 1977). As a subordinate entity of Maricopa
County, the Department is a non-jural entity and is dismissed as a party.
III. Trotter Has Shown No Error in the Board’s Decision.
¶12 Although seeking to challenge the Board’s decision under
A.R.S. § 12-910(F), Trotter provides no transcript or other record of the
administrative or Board hearings. Accordingly, this court presumes the
record at those proceedings supports the Board’s decision. See Cullison v.
City of Peoria, 120 Ariz. 165, 168 n.2 (1978) (citation omitted); Myrick v.
Maloney, 235 Ariz. 491, 495 ¶ 11 (App. 2014). The record on appeal indicates
that, at the administrative hearing, Hart testified he repeatedly found
Trotter’s halogen landscape lights “angled up in order to shine into
neighboring properties.” Hart testified he worked with Trotter to correct
her MCZO violations, but when he would return, he would find the lights
had been repositioned in a manner that violated the MCZO. Trotter did not
cross-examine Hart or dispute his testimony.3
2Defendants also argue on appeal that Maricopa County is an improper
party. However, because defendants did not raise this argument with the
superior court, it is waived. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz.
530, 535 ¶ 18 (App. 2007).
3 Although Trotter argued to the superior court that she was prevented
from cross-examining Hart, this argument is waived because Trotter does
not press it on appeal. See State v. Carver, 160 Ariz. 167, 175 (1989).
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TROTTER v. MARICOPA COUNTY, et al.
Decision of the Court
¶13 Trotter argues she did not violate the MCZO and could not be
fined because her halogen lights were exempt from MCZO requirements.
All exterior landscaping lights, unless exempt by the MCZO, must be
shielded. MCZO § 1112.4.1. Although the MCZO lists shielding
requirements for various types of lights (including LED lights), types of
lights not specified (like halogen lights) are “other sources” that may be
subject to shielding requirements “[a]s approved by the zoning inspector.”
MCZO § 1112.4.2.
¶14 After Hart’s initial investigation, Trotter replaced her LED
lights with halogen lights. The Department issued a Directive providing
that the zoning inspector would determine, for a specific installation,
whether halogen lights must be shielded to avoid “light trespass onto
neighboring properties.” DD-2020-04. Under this Directive, the zoning
inspector then determined Trotter’s halogen lights needed to be shielded.
Although Trotter could have appealed that determination, she did not. The
hearing officer applied the then-binding zoning inspector’s determination
and found Trotter’s positioning of her halogen lights violated the MCZO.
¶15 Trotter argues that her use of halogen lights before the
issuance of the Directive and the zoning inspector’s determination was a
prior non-conforming use and that, by imposing the fine she challenges, the
Department violated her due process rights. In essence, Trotter argues the
zoning inspector’s determination authorized by the Directive “cannot be
enforced” against her. Trotter has shown no error.
¶16 The Board has authority to “[i]nterpret” the MCZO “if the
meaning of any word, phrase or section is in doubt.” A.R.S. § 11-816. The
Directive expressly provided it was interpreting the relevant section of the
MCZO as silent to halogen lights. DD-2020-04. Given that halogen lights are
not identified in MCZO § 1112.4.2 by specific type, Trotter has not shown
that the zoning inspector erred in classifying halogen lights as “other
sources” and not “incandescent” lights. On the limited record provided,
Trotter has not shown that the evidence did not support the Board’s fine of
$350, or that the Board’s decision was error. See also A.R.S. § 11-815(D)
(allowing a county to fine up to $750 per day for zoning violations).
¶17 Trotter’s remaining arguments show no error. Trotter has not
shown the Department improperly cited her for one MCZO violation but
later fined her for a different, uncited MCZO violation. Trotter’s argument
appears to rely on the hearing officer’s citation to MCZO § 605 in the
“Charges” section of the judgment. The hearing officer, however, found
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TROTTER v. MARICOPA COUNTY, et al.
Decision of the Court
Trotter was not exempt from MCZO § 1112 and violated that provision, not
MCZO § 605.
¶18 Trotter also argues the Department violated her
“Constitutional Right to secure the curtilage of her home from nocturnal
trespass by use of reasonable lighting.” Trotter cites no authority
supporting this argument. Moreover, Trotter was not fined for lighting her
own property, but for shining her lights on her neighbors’ property. Nor
does the record support Trotter’s argument that her neighbors trespassed
onto her property and, while trespassing, redirected her lights to violate the
MCZO. Similarly, the record does not support Trotter’s argument that she
was denied a fair and impartial hearing, claiming the hearing officer
impermissibly had ex parte communications with the Director of Planning
and Development.
CONCLUSION
¶19 The Maricopa County Planning and Development
Department is dismissed as a non-jural entity, and the judgment otherwise
is affirmed. Because the judgment is affirmed, the court denies Trotter’s
requests for attorneys’ fees and costs pursuant to A.R.S. § 12-348, the private
Attorney General doctrine and the United States and Arizona
Constitutions.
AMY M. WOOD • Clerk of the Court
FILED: AA
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