Reb Properties, LLC v. William Towler ( 2011 )

FILED
NOT FOR PUBLICATION APR 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REB PROPERTIES, LLC, an Arizona No. 09-17724
limited liability company,
D.C. No. 3:09-cv-08072-DKD
Plaintiff - Appellant,
v. MEMORANDUM *
WILLIAM L. TOWLER, husband;
JACQUELINE KAY JOHNSON, wife;
MATT RYAN, Chairman of the Board of
Supervisors of Coconino County; STEVE
PERU, County Manager of Coconino
County; COCONINO COUNTY, a
political Subdivision of the State of
Arizona,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David K. Duncan, Magistrate Judge, Presiding
Submitted April 14, 2011 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOODWIN and N.R. SMITH, Circuit Judges, and BLOCK, District
Judge.***
REB Properties, LLC, appeals the district court’s order on the parties’ cross-
motions for partial summary judgement. Although the order did not resolve all
claims, it included a denial of Appellant’s request for injunctive relief. We
therefore have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the merits of
that request. See TransWorld Airlines, Inc. v. American Coupon Exchange, Inc.,
913 F.2d 676, 680 (9th Cir. 1990). We affirm.
The issue on appeal is the applicability of Arizona Revised Statutes
§§ 11-830(A)(2) and 11-865(A)(1), which create agricultural and other exemptions
to county land-use regulations. As the Arizona Supreme Court has not addressed
this issue, we look to decisions from the Arizona Court of Appeals for guidance.
See Nelson v. City of Irvine, 143 F.3d 1196, 1206-07 (9th Cir. 1998).
“On-site housing for full-time farm workers can be said to be ‘incidental’ to
farming because housing the workers on the farm is a subordinate accommodation
to their primary role as employees . . . .” Braden Trust v. County of Yuma, 69 P.3d
510, 513 (Ariz. Ct. App. 2003). While the Braden Trust court was willing to apply
the exemption from regulation to the construction of housing for full-time farm
***
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
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workers, it noted “that the agricultural use exemption from county regulation
should not ‘be manipulated and twisted into a protection for virtually any use of
the land as long as some agricultural activity [is] maintained on the property.’” Id.
at 514 (quoting County of Kendall v. Aurora Nat’l Bank Trust No. 1107, 524
N.E.2d 262, 267 (Ill. App. Ct. 1988)).
Here, the potential purchasers of tenancies-in-common would not be full-
time farm workers. They would not be required to perform any set amount of work
hours, need not even be capable of farm labor, and could hire others to fulfill their
indeterminate work requirements. Residential building on agricultural or ranching
land in this case would not be incidental to agricultural activity, and is therefore
not exempt from regulation.
Nor does the de minimis ownership arrangement of the proposed
development scheme save Appellant. That potential purchasers would each share a
small fraction of one percent of profits and losses from agricultural and ranching
operations does not prevent the project from twisting the regulatory exemptions
away from their purpose of protecting agricultural and ranching lands and
activities, and creating an unintended loophole that would allow widespread
residential development of those lands.
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Finally, Appellant’s contention that Arizona law requiring zoning ordinances
be construed against the county should likewise be applied to state statutes is also
unavailing. See Phoenix City Council v. Canyon Ford, Inc., 473 P.2d 797, 800
(Ariz. Ct. App. 1970). The statutes at issue have been clearly interpreted in Braden
Trust and are not ambiguous.
AFFIRMED.
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