Mba v. Scottsdale ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MBA DEVELOPMENT PARTNERS LLC,
Plaintiff/Appellant,
v.
CITY OF SCOTTSDALE, et al.,
Defendants/Appellees.
No. 1 CA-CV 19-0309
FILED 8-25-2020
Appeal from the Superior Court in Maricopa County
Nos. CV 2017-015460
LC 2017-000454-001
(Consolidated)
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL
Jennings, Strouss & Salmon, PLC, Phoenix
By John J. Egbert
Co-Counsel for Plaintiff/Appellant
Davidson & Kaffer, PLLC, Scottsdale
By Frederick E. Davidson, Chad R. Kaffer
Co-Counsel for Plaintiff Appellant
Scottsdale City Attorney’s Office, Scottsdale
By Eric C. Anderson, Stephanie Heizer
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell1 joined and Judge D. Steven Williams
dissented.
B R O W N, Judge:
MBA Development Partners, LLC (“MBA”) appeals the
superior court’s judgment affirming a decision of the City of Scottsdale
Board of Adjustment (“Board”), which upheld the Zoning Administrator’s
(“Administrator”) interpretation of a 1994 zoning ordinance approving a
planned development. Because the Administrator’s interpretation is the
only reasonable reading of the ordinance, we affirm.
BACKGROUND
MBA owns undeveloped real property (“Parcel 6”) in the
Troon North development area of Scottsdale. That area surrounds the
Troon North Golf Course and was originally part of a 2,500-acre master
plan the City approved in the 1980s. In 1994, the Scottsdale City Council
adopted a resolution amending the general plan to make technical changes
to the land use plan map but maintained the original intent of the plan for
the 55 acres of land surrounding the golf course. At the same time, the City
Council adopted an ordinance changing the zoning from single family
residential and dividing the land into six parcels, with future development,
including resorts, conditioned upon various zoning stipulations.
Stipulation 2 listed, among other things, the acreage, maximum density,
and maximum unit counts for each parcel. Notably, though, the acreage
listed in Stipulation 2 was incorrect on several of the parcels, and as most
pertinent here, Parcel 6. The acreage for Parcel 6 was arguably correct on
the City’s conceptual site plan, but not in Stipulation 2. The City Council
1 Judge Jennifer B. Campbell replaces the Honorable Kenton D. Jones,
who was originally assigned to this panel. Judge Campbell has read the
briefs, reviewed the record, and watched the recording of the oral
argument.
2
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was made aware of the incorrect figures, but nonetheless approved the
zoning amendment with the incorrect acreages.
Parcels 1 through 5 were essentially developed with single
family residences, leaving the parcel at issue here, Parcel 6, the last
undeveloped parcel of land. Stipulation 2 listed Parcel 6’s acreage as 1.49,
rather than the actual 2.56,2 and listed a maximum number of residential
units as 22, which equates to 31 resort units.3 In 2016, MBA acquired Parcel
6. Later that year, MBA submitted a plan to the City’s Development Review
Board for approval to build 64 resort units. As part of its initial review, City
staff asked for clarification as to how MBA calculated its proposed unit
count. MBA clarified that it was basing its count on the total number of
units that should still have been allowed under Stipulation 2 after taking
into account the housing density implemented in Parcels 1 through 5, rather
than Stipulation 2’s specific unit counts and density for Parcel 6 as drafted
in 1994.4
2 The precise acreage of Parcel 6 continues to be a point of
disagreement between the parties, but the actual acreage is ultimately
immaterial to our decision.
3 Residential units and resort units do not directly equate. The
underlying zoning standards for the parcels provide that resort units
require a minimum gross land area of 4,100 square feet and residential units
require a minimum gross land area of 5,770 square feet. Though Stipulation
2 allows the parcels to depart from these square footage requirements, the
City Council still based Stipulation 2 on ratios from the underlying zoning.
Thus, the ratio of resort units to residential units can be rounded to 1.41,
which is how the Administrator used and interpreted the ratio as being 1.41.
However, a ratio of 1.43 is occasionally used; for example, the text of
Stipulation 2, see infra ¶ 7, provides that 385 residential units equates to 550
resort units, which can be rounded to a ratio of 1.43. City staff also
interpreted the ratio as 1.43 in the first review comments of MBA’s
proposed developments. In either case, 22 residential units can be rounded
to 31 resort units (22 x 1.41 = 31.02; 22 x 1.43 = 31.46).
4 According to MBA’s calculations, Stipulation 2, see infra ¶ 7, simply
provides the maximum number of residential units allowed among all the
parcels. MBA determined that the number of units actually built on parcels
1 through 5 equals 341 residential units, meaning there are 44 residential
units remaining to reach the threshold of 385 residential units. MBA then
3
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MBA continued through the review process for its proposed
development, and City staff made no mention of the proposed unit count
in the second review comments. By 2017, Troon North Association, the
homeowners’ association for the development area, requested an
interpretation of the zoning ordinance from the Administrator, seeking
clarity as to the unit counts allowed on Parcel 6. In response, the
Administrator issued a letter interpreting the ordinance to mean the
maximum unit count allowed on Parcel 6, regardless of discrepancies
related to the actual acreage, was 22 units (or 31 resort units), as provided
in Stipulation 2. The Administrator discussed Stipulation 2 and its table in
detail. He also accounted for the history of the land, the other relevant
conditions for building on Parcel 6, and explained how the developments
on parcels 1 through 5 factored into his conclusion. He concluded that
Stipulation 2’s table “specifically indicates what the maximum densities for
the 6 parcels are, including the maximum number of dwelling units[,] and
Parcel 6 is currently allowed 22 dwelling units or 31 resort rooms”; thus,
exceeding those densities would require approval by the City Council
through a separate hearing process.
MBA appealed the Administrator’s interpretation to the
Board of Adjustment, and after a hearing in November 2017, the Board
affirmed. Both Troon North Association and MBA challenged the Board’s
decision by separately commencing special action proceedings in the
superior court. The Association alleged that none of the units built on
Parcel 6 could be resort units, and MBA asserted it should be allowed to
build 48 resort units with 62 resort rooms.5 The court consolidated the cases
and later dismissed the Association’s petition for lack of standing but
allowed the Association to participate as amicus curiae. Following oral
argument, the court affirmed the decision of the Board, explaining in part
that (1) the zone change stipulations “set the maximum densities per parcel
and the maximum units per parcel” with a mechanism for redistribution of
densities subject to staff approval, and (2) read holistically, the plain
language of the ordinance is consistent with the Administrator’s
multiplied the 44 residential units by the ratio of residential units to resort
units (MBA used 1.43, see supra n.3). This results in 62.92 resort units, which
MBA apparently rounded to 64 resort units in its initial proposal.
5 MBA also alleged the Board abused its discretion by failing to
consider MBA’s vested rights and the impact of the doctrine of equitable
estoppel. Those issues have not been raised on appeal.
4
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interpretation that the maximum number of resort units for Parcel 6 is 31,
absent staff approval of a redistribution. MBA timely appealed.
DISCUSSION
Our standard of review requires us to determine if the Board’s
decision was arbitrary and capricious or an abuse of its discretion. Murphy
v. Town of Chino Valley, 163 Ariz. 571, 574 (App. 1989). But insofar as we
review issues of statutory interpretation, we review de novo and are free to
draw our own legal conclusions. Id.
Stipulation 2 provides for zoning of all the parcels
surrounding the golf course, including Parcel 6:
Maximum densities and dwelling unit counts shall be as
indicated on the approved development plan except that in
no case shall [the] unit count exceed 385 (for units which are
not used or available as resort rooms) and 424 units maximum
(of which at least 90 units shall be used as resort rooms)
without a subsequent public hearing. The specific location of
each parcel shall be determined at the time of site plan review.
Redistribution of the units is subject to maximum densities
and Project Coordination staff approval. All such requests
shall include a revised master development plan and a
revision to the table on page 2 indicating the parcels with the
corresponding reduction/increase.
Parcel Gross Acres Zoning Proposed Max. Proposed Max.
DU/AC DU/AC # Units # Units
1 14.68 R4-R HD 7/ac 7/ac 100 100
2 12.40 R4-R HD 8/ac 8/ac 100 100
3 10.20 R4-R HD 7/ac 7/ac 72 72
4 10.00 R4-R HD 10/ac 10/ac 99 99
5 3.42 R4-R HD 10/ac 10/ac 31 31
6 1.49 R4-R HD 15/ac 15/ac 22 22
Total 52.19 7.7/ac 424 385/424*
*The proposed unit count of 424 represents a mix of
residential and resort units. The 385 unit maximum is the
maximum allowed for residential units. If the residential
units were all converted to resort units the maximum would
be 550 units.
5
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We interpret the 1994 zoning ordinance using the “same rules
and principles governing the construction of statutes,” with the primary
goal of ascertaining and giving effect to the intent of the City Council.
Abbott v. City of Tempe, 129 Ariz. 273, 275 (App. 1981). Intent is most clear
from the ordinance’s plain language, considered in proper context. Glazer
v. State (Glazer II), 244 Ariz. 612, 614, ¶¶ 9–10 (2018). To determine whether
an ordinance is ambiguous, we look to whether it is open to multiple
reasonable interpretations or whether its meaning is not evident after
examining the context as a whole. Id. at ¶ 12. “If the [ordinance] is subject
to only one reasonable interpretation, we apply it without further analysis,”
Glazer v. State (Glazer I), 237 Ariz. 160, 163, ¶ 12 (2015), unless the results are
absurd or impossible. Bilke v. State, 206 Ariz. 462, 464, ¶ 11 (2003).
Disagreement by the parties as to the meaning of an ordinance does not
render it ambiguous. Glazer II, 244 Ariz. at 614, ¶ 12. Here, both MBA and
the City argue the ordinance is unambiguous and can only be interpreted
in the manner each party suggests.
A. The Administrator’s Interpretation is Most Consistent with
the Table
MBA’s primary argument that the Administrator’s
interpretation is incorrect is based on flawed assumptions about the acreage
and how the number of units was calculated under Stipulation 2. MBA
argues the Administrator can and should plug in the actual acreage—which
it now argues is 3.17—for Parcel 6, multiply that acreage by the maximum
dwelling units per acre of 15, and obtain a new maximum number of units.
This argument relies on the theory that the maximum number of residential
units, 22, is merely a product of multiplying the gross number of acres by
the maximum acreage, and the density column containing 15 dwelling units
per acre is the only fixed column.6 While that appears to be the case on the
6 To support this interpretation, at the Board hearing MBA provided
testimony from a former senior planner for the City who was employed by
the City at the time the ordinance was drafted. But because the ordinance
is unambiguous, we have no reason to look to secondary factors such as this
testimony. See Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 195,
¶ 9 (2016) (“When a statute is ambiguous, we determine its meaning by
considering secondary factors, such as the statute’s context, subject matter,
historical background, effects and consequences, and spirit and purpose.”).
And because we view the Administrator’s interpretation as the only
reasonable interpretation, we do not address MBA’s or the City’s
alternative arguments relating to secondary statutory interpretation tools
6
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surface, we cannot conclude the table in Stipulation 2 derives its numbers
based solely on a math calculation.
Parcel 5 in particular illustrates that, though the numbers in
the table correlate somewhat with multiplication, the totals are not direct
results of the math. Thus, the City Council must have used multiple factors
in choosing each parcel’s maximum densities rather than relying on a pure
mathematical formula. But even if the table were based on such a formula,
nothing in the plain language of Stipulation 2 empowers the Administrator
to simply insert numbers and perform new calculations. And nothing in
the table or in the text of Stipulation 2 indicates that density is the only fixed
number in the table. See infra ¶¶ 15–16.
MBA argues the Administrator’s position cannot stand
because it renders other numbers in Stipulation 2’s table as surplusage. But
our charge is to avoid surplusage if possible; in the case of this ordinance,
surplusage is impossible to avoid. See Ariz. State Univ. Bd. of Regents v. Ariz.
State Ret. Sys., 242 Ariz. 387, 389, ¶ 7 (App. 2017) (“We interpret statutes to
avoid rendering ‘any of its language mere “surplusage”. . . .’” (emphasis
added) (citation omitted)). If, as MBA suggests, the proper acreage were
inserted into the table and multiplied by the maximum density per acre to
yield a new maximum number of units, the listed maximum number of
residential units, 22, would be surplusage. But if the ordinance is read as-
is, Parcel 6’s listed acreage is surplusage because it is incorrect. And under
MBA’s multiplication-based interpretation, Parcel 5’s listed maximum
density would also be surplusage, because the maximum number of units
for that parcel and acreage do not allow the parcel to actually meet the listed
maximum density. Accordingly, an analysis of what portions of the zoning
ordinance may or may not be rendered surplusage is not a useful metric for
us to analyze the ordinance.
Further, MBA’s interpretation would disregard the plain
meaning of the word “maximum” used in Stipulation 2’s table. The number
of units MBA seeks to build is substantially more than 22 residential or its
corresponding 31 resort units, and thus it would violate the maximum of
22/31 units listed in the table. By contrast, the Administrator interpreted
the number of units allowed as the same as what the table listed—22
dwelling units or 31 resort units. Because the table only sets maximums,
based upon a finding of ambiguity. For the same reason, we do not consider
earlier interpretations of the ordinance made in connection with
development plans submitted by the prior owners of Parcel 6.
7
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rather than minimums, there is no corresponding violation of the total
number of dwelling units when the ordinance is interpreted as allowing 22
dwelling units. Given the true acreage of Parcel 6, we acknowledge that the
proposed density of 15 dwelling units per acre cannot be met; but because
15 dwelling units per acre is a maximum, nothing in the table conflicts with
allowing a lesser density.7 We do not read the table as being controlled
solely by the maximum density or the maximum unit counts. Rather, we
will attempt to harmonize as much of the table as possible, and reading the
table as subject to both maximums is the only reasonable reading.
The City Council that approved the ordinance clearly
contemplated Parcel 6 having a maximum of 22 units; we find nothing
absurd or impossible in an interpretation that is consistent with the
maximum number of units on Parcel 6, plainly stated in Stipulation 2. As
long as our interpretation of the ordinance is not absurd or impossible, we
will apply it. See State Tax Comm’n v. Television Servs., Inc., 108 Ariz. 236,
239 (1972) (“Where the meaning of a statute does not lead to an
impossibility or an absurdity such as could not have been contemplated by
the Legislature, courts follow that meaning even though the result may be
harsh, unjust, or a mistake in policy.”). Thus, the Administrator’s
interpretation that Stipulation 2 only allows 22 units is the only reasonable
reading of the table.
B. The Administrator’s Interpretation is Consistent with the
Text of Stipulation 2
MBA argues the Administrator’s interpretation is inconsistent
with the text of Stipulation 2. First, MBA points to Stipulation 2’s statement
that “[t]he specific location of each parcel shall be determined at the time of
site plan review,” as indicating that parcel sizes would change. But this
requires reading the word “location” as synonymous with the word “size.”
Black’s Law Dictionary defines “location” as “[t]he specific place or position
of a person or thing”; accordingly, it would be inappropriate to read the
word “location” as indicating anything more than the specific site of the
physical boundaries of the parcel. Location, Black’s Law Dictionary (11th
ed. 2019). The drafters may have contemplated that the actual boundaries
of each parcel could differ slightly on the ground in comparison to on
paper, but this does not indicate that the drafters intended the gross acreage
7 As written in Stipulation 2’s table, this is also true for Parcel 5.
8
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of the parcels to change. The fact that Parcel 6 could have a maximum of
22 units does not render this allowance meaningless.
Next, MBA points to Stipulation 2’s allowance for a
“redistribution of units” as evidence that Parcel 6’s unit allocation could
change. But this phrase does not indicate a possible wholesale departure
from the table or Parcel 6’s maximums; it must be read in conjunction with
the table. And indeed, this only allows changes in a specific condition—when
there is to be redistribution among multiple parcels. Nothing in the record
indicates redistribution was ever requested by the owner of any of the six
parcels, and thus the redistribution provision has no applicability here. To
be sure, the provision indicates that redistribution is subject to “maximum
densities,” which could be read as an indication that the drafters of the
ordinance viewed density as the most critical factor in Stipulation 2’s table.
But the plain language only indicates that density is a critical factor in the
case of redistribution; nothing in the text of Stipulation 2 requires, or even
suggests, the inference that density is always the controlling factor in the
development. Further, it is unclear which “maximum densities” this
sentence is referring to, because the provision itself would violate the table
in Stipulation 2, even if density were the fixed column in the table.8 We do
not view the distribution provision as dictating that maximum densities is
the fixed column in the table.
Finally, MBA argues Stipulation 2’s statement that
“maximum densities and dwelling unit counts shall be as indicated on the
approved development” means there is built-in flexibility to the ordinance.
But this sentence fragment must be examined in context of the entire
sentence:
Maximum densities and dwelling unit counts shall be as
indicated on the approved development plan except that in
no case shall [the] unit count exceed 385 (for units which are
8 If a redistribution were used to increase the unit count for a parcel,
the increase would, by definition, violate the maximum density per acre set
in the table. For example, the actual development on Parcel 1 is 86 units,
but the maximum number of units allowed in the table is 100. So if the
owner of Parcel 2 sought to increase the maximum unit count available (100
units) by redistributing all or some of the 14 units from Parcel 1, Parcel 2’s
new unit count could be anywhere from 101 to 114 units. But this would
yield a density per acre of 8.1 at a minimum and 9.2 at a maximum, violating
the table’s numbers. Thus, it is unclear how redistribution could be “subject
to” the table’s maximum densities.
9
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not used or available as resort rooms) and 424 units maximum
(of which at least 90 units shall be used as resort rooms)
without a subsequent public hearing.
The sentence must also be read in conjunction with the rest of Stipulation 2;
it allows densities and dwelling unit counts to change, but nothing in the
plain language of the sentence allows departure from the maximums
established elsewhere in the Stipulation. Therefore, the Administrator’s
interpretation that 22 residential units (or 31 resort units) is the maximum
allowed is not inconsistent with this sentence. MBA also argues this
sentence establishes an express requirement that 90 units be developed as
resort units and the Administrator’s interpretation reflects this
requirement. But it is the present status of the parcels that eliminates this
requirement; as the Administrator stated in his interpretation letter, “the
originally-planned 90 resort units can no longer be achieved.” And to that
end, it may well be that if Parcel 6 were the first site developed in the area,
a different interpretation as to the maximum allowed unit counts would be
reasonable. But because of the structure of this ordinance, the completed
developments on Parcels 1 through 5 have, of course, affected Parcel 6. Still,
we view the Administrator’s interpretation as the only reasonable
interpretation under the circumstances.
C. The Administrator’s Interpretation is Consistent with
Stipulation 12
MBA asserts the Administrator’s interpretation is inconsistent
with “other provisions of the ordinance.” See Stambaugh v. Killian, 242 Ariz.
508, 509, ¶ 7 (2017) (“In construing a specific provision, we look to the
statute as a whole and we may also consider statutes that are in pari
materia—of the same subject or general purpose—for guidance and to give
effect to all of the provisions involved.”). MBA points only to Stipulation
12, however, and its statement that “[d]ensity will be based on the gross
development area of each parcel.” But “gross development area” is not the
same as “gross acreage”; we read this statement as acknowledging that the
area developed may not be the same as the total acreage of the parcel.
Stipulation 1 contemplates this as well: “[T]he approved density for each
parcel is subject to drainage, topography, NAOS requirements and other
site planning concerns . . . . Appropriate design solutions to these
constraints may preclude achievement of the proposed units or density on
any or all parcels.” And just because 22 residential units (or 31 resort units)
are the maximum for Parcel 6 does not mean that density cannot be based
on the gross development area; the density could always be less than
Stipulation 2’s provisions, and nothing about that would violate Stipulation
10
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12. Because MBA points to no other provisions with which the
Administrator’s interpretation is inconsistent, we conclude this
interpretation is the only reasonable way to construe the zoning ordinance,
and specifically, Stipulation 2. See Premier Physicians Grp., 240 Ariz. at 195,
¶ 9 (“When possible, we seek to harmonize statutory provisions and avoid
interpretations that result in contradictory provisions.”).
CONCLUSION
We affirm the superior court’s judgment affirming the
Board’s decision.
W I L L I A M S, J., dissenting
I respectfully dissent. Here we are tasked to interpret de novo,
Murphy, 163 Ariz. at 574, a City of Scottsdale zoning ordinance described
by Scottsdale during oral argument in the following manner: “The way the
ordinance reads . . . it’s a little weird, quite frankly.” And, while I agree that
the majority’s interpretation of the ordinance is reasonable, I disagree that
it is the only reasonable reading of the ordinance.
MBA’s interpretation is also reasonable, and in my view, the
more appropriate reading of the ordinance. As delineated, supra ¶ 7, and
with limited exception discussed below, Stipulation 2 confines the
development of each parcel to: (1) the “maximum densities” set forth in
column five of Stipulation 2’s table, and (2) the “dwelling unit counts” as
set forth in column seven of the table.
Parcel Gross Acres Zoning Proposed Max. Proposed Max.
DU/AC DU/AC # Units # Units
1 14.68 R4-R HD 7/ac 7/ac 100 100
2 12.40 R4-R HD 8/ac 8/ac 100 100
3 10.20 R4-R HD 7/ac 7/ac 72 72
4 10.00 R4-R HD 10/ac 10/ac 99 99
5 3.42 R4-R HD 10/ac 10/ac 31 31
6 1.49 R4-R HD 15/ac 15/ac 22 22
Total 52.19 7.7/ac 424 385/424*
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Williams, J., dissenting
Thus, I agree that, generally, Parcel 6 cannot be developed to a density
greater than 15 dwelling units per acre and cannot comprise more than 22
total units. Further, according to the table, the collective number of units
between all six parcels cannot exceed 385 “residential units,” or 424 units
comprised of “a mix of residential and resort units.”
However, Stipulation 2 does allow a parcel to be developed
in excess of the maximum number of units specified in column seven of the
table subject to certain parameters. And, in my view, the majority’s
emphasis on column seven fails to adequately consider other crucial
language of the ordinance vital to its interpretation. In particular, the
following provisions must be noted when considering Stipulation 2’s table:
Maximum densities and dwelling unit counts shall be as
indicated on the approved development plan except that in no
case shall [the] unit count exceed 385 (for units which are not used
or available as resort rooms) and 424 units maximum (of which at
least 90 units shall be used as resort rooms) without a subsequent
public hearing.
...
The proposed unit count of 424 represents a mix of residential
and resort units. The 385 unit maximum is the maximum
allowed for residential units. If the residential units were all
converted to resort units the maximum would be 550 units.
...
Redistribution of the units is subject to maximum densities and
Project Coordination staff approval.
(Emphasis added.) I read Stipulation 2 to identify two overarching
requirements which the city council deemed absolute in the development
of the six parcels. First, the total number of dwelling units combined
between all six parcels cannot, absent a subsequent public hearing, exceed
385 residential units, or a mixture of residential and resort units totaling 424,
or arguably 550 resort units.9 Second, while dwelling units on any given
parcel may exceed the maximum number set forth in column seven of the
9If MBA’s proposed 62 resort units were developed, the total number of
units combined among all six parcels would still be less than Stipulation 2’s
maximum of 424.
12
MBA v. SCOTTSDALE, et al.
Williams, J., dissenting
table, no parcel may be developed in excess of the density restrictions
prescribed in column five of the table.
Further, it is beyond dispute that column two of the table,
which sets forth the “gross acres” of each parcel: (1) is not accurate, (2) was
not accurate when the ordinance was enacted, and (3) the city council knew
of the inaccuracies but still chose to enact the ordinance with the following
provision: “The specific location of each parcel shall be determined at the
time of site plan review.”(Emphasis added.)
As implied by the majority, “location” is not defined in the
ordinance. The majority relies upon Black’s Law Dictionary to define the
same, supra ¶ 14, and concludes that, “[t]he drafters may have
contemplated that the actual boundaries of each parcel could differ slightly
on the ground in comparison to on paper, but this does not indicate that the
drafters intended the gross acreage of the parcels to change.” (Emphasis added.)
I respectfully disagree. Because the ordinance does not identify the location
of any parcel, rather only lists gross acreage, in my view the majority’s
interpretation of “location” is too narrow. Certainly the drafter’s caveat that
“the specific location of each parcel shall be determined at the time of site plan
review” contemplated a future determination of not just each parcel’s
“actual boundaries,” as the majority concludes, but also contemplated a
future determination of the land within those boundaries; which is to say, a
parcel’s gross acreage. (Emphasis added.) An August 2017 survey revealed
the gross acreage of Parcel 6 to be 3.1707 acres, not the much smaller 1.49
acres listed in column two of the table.
The majority also points out, consistent with both Stipulation
1 and Stipulation 12, that “density,” as set forth in column five of the table,
“will be based on the gross development area of each parcel,” and further
notes that “’gross development area’ is not the same as ‘gross acreage.’” I
agree. However, the portion of Parcel 6’s gross acreage which qualifies as
“gross development area” is not at issue before us. That matter is reserved
for MBA and Scottsdale to determine.
Finally, the majority concedes its interpretation renders
portions of the ordinance as surplusage. However, “we must read the
[ordinance] as a whole and give meaningful operation to each of its
provisions.” Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 35 (1998). “That is to say, we
must avoid interpreting [an ordinance] so as to render any of its language
mere ‘surplusage,’ but rather, must give meaning to ‘each word, phrase,
clause, and sentence . . . so that no part of the [ordinance] will be void, inert,
redundant, or trivial.’” Herman v. City of Tucson, 197 Ariz. 430, 434, ¶14
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Williams, J., dissenting
(App. 1999) (quoting Walker v. City of Scottsdale, 163 Ariz. 206, 210 (App.
1989)).
Although I view MBA’s reading of the ordinance to be the
more reasonable interpretation, because the ordinance is open to more than
one reasonable interpretation, it is, by definition, ambiguous. See Glazer, 244
Ariz. at 614, ¶ 12 (indicating a statute “is ambiguous when it is open to
multiple reasonable interpretations”). “When a statute [or ordinance] is
ambiguous, we determine its meaning by considering secondary factors,
such as the statute’s context, subject matter, historical background, effects
and consequences, and spirit and purpose.” Premier Physicians Grp., 240
Ariz. at 195, ¶ 9. When looking at secondary factors, we may accept prior
administrative interpretation “where long continued and in cases of
ambiguity.” City of Mesa v. Killingsworth, 96 Ariz. 290, 296 (1964); see also
U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 212 (App. 1989) (indicating
we need not defer to a board of adjustment’s interpretation when “there is
no showing of a long-standing interpretation by the agency”). A review of
Scottsdale’s long-standing interpretation of the ordinance is beneficial and
should be dispositive.
Before the Administrator’s interpretation of the ordinance in
2017, nothing in the record indicates Scottsdale has interpreted the
ordinance consistent with their position here. To the contrary, since its
inception, Scottsdale has consistently interpreted the ordinance to more
closely align with MBA’s reading of the same.
In 1995, the year after the ordinance was amended, Scottsdale
approved 35 resort units to be built on Parcel 6, more than the 31 resort
units Scottsdale currently argues is the maximum allowed. It is unclear
from the record what gross acreage was attributed to Parcel 6 at that time.
Regardless, the approved project was never constructed.
In 2007, a previous owner of Parcel 6 submitted a proposal to
the City’s Development Review Board for the development of Parcel 6,
which was determined to be approximately 2.5 acres at that time. Scottsdale
acknowledged that 37 units were allowed and then unanimously approved
the building of 48 resort units. Thus, Scottsdale must have generally agreed
with MBA’s calculations here that 37 dwelling units could have translated
into, perhaps, as many as 52 resort units (2.5 acres x 15 dwelling units/acre
= 37.5 dwelling units; 37 dwelling units x 1.43 = 52.91 resort units). Again,
the approved project was never constructed.
In July 2016, MBA acquired Parcel 6. In October 2016, MBA
submitted an application for a 64 resort unit development. In November
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MBA v. SCOTTSDALE, et al.
Williams, J., dissenting
2016, as part of its first review comments, Scottsdale sought clarification
from MBA noting that “37 units were historically allocated for use on this
site” and requested MBA to explain how 37 dwelling units could be
increased to 64 resort units. MBA responded and resubmitted the project
plans in June 2017 seeking approval for 62 resort units. In July 2017, as part
of its second review comments, Scottsdale made no further inquiry
regarding number of units allowed on Parcel 6 and arguably intimated
MBA’s request was within the maximum number of units allowed when it
directed MBA to modify the site plan to account for “three (3) [refuse
enclosures] based on one enclosure per 20 units.” That same month, a third-
party opposing MBA’s development requested that the Administrator
interpret the ordinance. In August 2017, the Administrator issued an
interpretation, and for the first time, Scottsdale took the position that Parcel
6 could not be developed in excess of “22 dwelling units or 31 resort units.”
Scottsdale’s long-standing treatment of the ordinance is more
closely harmonized with MBA’s reading of the ordinance than its own
position here. Indeed, Scottsdale has historically interpreted the ordinance
to allow the development of Parcel 6 subject to: (1) the gross acreage of
Parcel 6, (2) the maximum density restrictions set forth in column five of
the table, and (3) the combined dwelling units among all six parcels,
comprised of a mixture of residential and resort units, totaling no more than
424. Any other reading of the ordinance is a clear deviation from
Scottsdale’s long-continued interpretation and results in an injustice to the
property owner.
In my view, the Administrator’s interpretation of the
ordinance, and subsequent affirmation by both the Board and the superior
court, should be vacated.
AMY M. WOOD • Clerk of the Court
FILED: AA
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