City of Tucson v. Clear Channel Outdoor, Inc.

FILED BY CLERK
APR -2 2008
IN THE COURT OF APPEALS
COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
CITY OF TUCSON, a municipal ) 2 CA-CV 2007-0104
corporation, ) DEPARTMENT A
)
Plaintiff/Appellant/Cross-Appellee, ) OPINION
)
v. )
)
CLEAR CHANNEL OUTDOOR, INC., )
)
Defendant/Appellee/Cross-Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20003722
Honorable Carmine Cornelio, Judge
AFFIRMED IN PART
REMANDED IN PART
Gabroy, Rollman & Bossé, P.C.
By Richard M. Rollman and Richard A. Brown Tucson
Attorneys for Plaintiff/Appellant/
Cross-Appellee
Quarles & Brady LLP
By David A. Paige, Nicole France Stanton, Phoenix
and Deanna Conn Tucson
Attorneys for Defendant/Appellee/
Cross-Appellant
Arizona Center for Law in the Public Interest
By Joy Herr-Cardillo
Tucson
Attorney for Amici Curiae Scenic
Arizona, Neighborhood Coalition of
Greater Tucson, Luz Social Services,
Amistades, and Neighborhood
Coalition of Greater Phoenix
H O W A R D, Presiding Judge.
¶1 In this municipal code enforcement action, appellee/cross-appellant Clear
Channel Outdoor, Inc., challenges the trial court’s rulings that the two-year limitations
period provided in A.R.S. § 9-462.02(C) did not commence until appellant/cross-appellee
City of Tucson actually discovered billboard violations and that billboards in violation of
repealed ordinances at the time of repeal can be regulated under the current ordinances that
replaced and abrogated prior ordinances. Clear Channel also challenges those portions of
the court’s judgment, rendered after a bench trial, in favor of the City, requiring Clear
Channel to remove five billboards found in violation of applicable City ordinances and to
remediate three other billboards through relocation or face replacement. Clear Channel
further argues the court erred in concluding the addition of a second face to certain
billboards was a violation of the applicable code and that it was an abuse of discretion to
order removal of those billboards instead of remediation.
¶2 The City challenges those portions of the trial court’s judgment that denied
the City’s request for removal of five billboards, including the three that the court ordered
Clear Channel to remediate. The City contends the court had no discretion to order
anything other than removal. In the alternative, the City argues that, if the court did have
the discretion to order a different remedy, or no remedy at all, then it abused its discretion
2
in ordering anything other than removal of all five billboards. As explained more fully
below, we affirm the judgment as to counts 36, 75, 80, 97, 102, 114, 116, and 117 and we
remand as to counts 11 and 61 for further consideration by the trial court consistent with
this opinion.
Procedural Background
¶3 This case arises out of approximately twenty years of disputes between the City
and Clear Channel or its predecessors regarding the regulation of billboards. See City of
Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶¶ 2-8, 105 P.3d 1163, 1165-66
(2005) (describing some procedural history of dispute). The current appeal arises from a
lawsuit first initiated in 2000 by the City against Clear Channel’s predecessor. The City
alleged violations involving over 170 billboards, with each billboard constituting a separate
count. In order to make the litigation manageable, the trial court ordered the parties to
select a small number of billboards representative of the various violations alleged. The
court expressed the hope that, after the issues involving these billboards had been litigated,
the parties would be more likely to reach a settlement regarding the remaining billboards.
The ten billboards selected for trial were those associated with counts 11, 36, 61, 75, 80,
97, 102, 114, 116, and 117, in the City’s complaint. After a series of mini-trials on these
counts, the court entered final judgment ordering the following: removal of the billboards
associated with counts 36, 80, 102, 116, and 117; relocation of the billboards associated
with counts 11 and 61; and replacement of the face on the billboard associated with count
75. The court denied relief as to the billboards associated with counts 97 and 114.
3
Discovery Standard under A.R.S. § 9-462.02(C)
¶4 Clear Channel argues the trial court erred by determining that the two-year
limitations period set forth in § 9-462.02(C) is triggered only when the City “actually
discovers a violation involving an outdoor advertising use or structure zoning or sign code
violation.” Clear Channel argues the limitations period is triggered “when the City knew or,
in the exercise of reasonable diligence, should have known of the facts underlying the
purported violation.”1
¶5 We review de novo questions of statutory interpretation and questions of law
regarding statute of limitations defenses. N. Valley Emergency Specialists, L.L.C. v.
Santana, 208 Ariz. 301, ¶ 8, 93 P.3d 501, 503 (2004); Montaño v. Browning, 202 Ariz.
1
The trial court’s ruling on this issue does not pertain directly to the ten billboards
that are the subject of this appeal and we have subject matter jurisdiction only over the
court’s judgment, entered pursuant to Rule 54(b), Ariz. R. Civ. P., relating to these
billboards. See Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, n.1, 155 P.3d 1090,
1094 n.1 (App. 2007). Nevertheless, in supplemental briefing on this jurisdictional
question, the parties urge us to decide the pure question of law relating to the statute of
limitations because the issue is one of first impression and it is already recurring in the
ongoing litigation below. Based on the unique facts of this case, the interests of judicial
economy, and in light of the fact that we already have a valid appeal after a final judgment
on the other issues in this case, we exercise special action jurisdiction over this issue to cure
any potential defect in our appellate jurisdiction. See Lloyd v. State Farm Mut. Auto. Ins.
Co., 189 Ariz. 369, 374-75, 943 P.2d 729, 734-35 (App. 1996) (court of appeals exercises
discretion to treat appeal as a petition for special action and accept special action
jurisdiction where trial court improperly certified partial summary judgment pursuant to
Rule 54(b), Ariz. R. Civ. P.); see also State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4, 49
P.3d 1142, 1143 (App. 2002) (“Special action jurisdiction is appropriate in matters of
statewide importance, issues of first impression, cases involving purely legal questions, or
issues that are likely to arise again.”), aff’d, 205 Ariz. 279, 69 P.3d 1000 (2003).
4
544, ¶ 4, 48 P.3d 494, 496 (App. 2002). The purpose of a statute of limitations is generally
to “protect[] defendants and the courts from litigation of stale claims” for which evidence
may be lost or the memories of witnesses faded. Nolde v. Frankie, 192 Ariz. 276, ¶ 12, 964
P.2d 477, 480 (1998). However, courts disfavor statute of limitations defenses, preferring
instead to resolve litigation on the merits when possible. See Montaño, 202 Ariz. 544, ¶ 3,
48 P.3d at 496; see also Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182
Ariz. 586, 590, 898 P.2d 964, 968 (1995).
¶6 If a statute of limitations question requires statutory interpretation, we must
construe the statute so as to fulfill legislative intent. See UNUM Life Ins. Co. of Am. v.
Craig, 200 Ariz. 327, ¶ 11, 26 P.3d 510, 512-13 (2001). When interpreting a statute, we
look first to the plain language because that is “‘the best and most reliable index of a
statute’s meaning.’” N. Valley Emergency Specialists, 208 Ariz. 301, ¶ 9, 93 P.3d at 503,
quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). When the
language of a statute is clear and unambiguous, a court should not look beyond the
language, but rather “simply ‘apply it without using other means of construction,’ assuming
that the legislature has said what it means.” Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50
P.3d 821, 823 (2002), quoting UNUM Life Ins., 200 Ariz. 327, ¶ 12, 26 P.3d at 513.
¶7 Section 9-462.02(C) provides that “[a] municipality must issue a citation and
file an action involving an outdoor advertising use or structure zoning or sign code violation
within two years after discovering the violation.” The plain language, “after discovering,”
5
is clear and unambiguous. Nothing within the text of the statute suggests any legislative
intent other than to begin the limitations period upon actual discovery of a violation.
¶8 Clear Channel asserts that the legislative intent in enacting § 9-462.02(C) was
to “shorten the time in which the City could bring its claims” and argues that a plain
meaning interpretation does not fulfill this intent. Clear Channel also cites the Arizona State
Senate Fact Sheet for H.B. 2559, 44th Leg., 2d Reg. Sess. (Ariz. Mar. 7, 2000), the bill
that became § 9-462.02(C), which states: “A statute of limitation is needed in this context
in order to avoid a situation where a series of citations may be ‘saved up’ to be used as
leverage to force a billboard company to remove billboards.” Clear Channel asserts that to
interpret the statute according to its plain language “would permit the City to extend its right
to bring an action against a nonconforming billboard for an indefinite period of time, and
defeat the very purpose of § 9-462.02(C).”
¶9 First, when statutory language is unambiguous, we do not look beyond it. See
Hughes, 203 Ariz. 71, ¶ 11, 50 P.3d at 823. Moreover, before the enactment of § 9-
462.02(C), there was no statutory time restriction on the City’s ability to bring its claims.
See Clear Channel, 209 Ariz. 544, ¶¶ 39-40, 105 P.3d at 1173. Construing the words “after
discovering” in § 9-462.02(C) according to their plain meaning requires the City to file
claims within two years of actual discovery of a violation and thus imposes a statutory time
limit where none had previously existed. Therefore, by its clear and unambiguous terms, the
statute fulfills the legislative intent of shortening the time by which the City must file its
claims. And, contrary to Clear Channel’s assertion, a plain meaning interpretation addresses
6
the concern expressed in the senate fact sheet. By mandating that claims be brought within
two years of actual discovery, the statute precludes the City from saving up its claims over
“an indefinite period of time” and exercising the feared leverage. The fact sheet therefore
supports the City’s rather than Clear Channel’s position.
¶10 Clear Channel argues that § 9-462.02(C) should be interpreted to incorporate
the “discovery rule” imposed in other areas of civil litigation with regard to accrual of a
plaintiff’s cause of action. Under the discovery rule, accrual of a cause of action occurs
when the “plaintiff knows or, in the exercise of reasonable diligence, should know the facts
underlying the cause.” Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966; see also Vega
v. Morris, 184 Ariz. 461, 463, 910 P.2d 6, 8 (1996) (cause of action accrues when “plaintiff
knows or reasonably should have known” of defendant’s negligent conduct). As the City
correctly observes, this case law was developed to interpret statute of limitations language
that expressly requires a claim to be filed within a certain number of years “after the cause
of action accrues.” See Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966 (interpreting
A.R.S. § 12-548); Sato v. Van Denburgh, 123 Ariz. 225, 227, 599 P.2d 181, 183 (1979)
(interpreting A.R.S. § 12-542); see also Mayer v. Good Samaritan Hosp., 14 Ariz. App.
248, 252, 482 P.2d 497, 501 (1971) (discovery rule developed to address ambiguity of term
“accrues”). Because the discovery rule is firmly established in the context of determining
when a cause of action accrues for the purposes of a statutory limitations period, see Sato,
123 Ariz. at 227, 599 P.2d at 183, we assume that if the legislature had intended the
7
discovery rule to apply, it would have indicated that by using accrual language in § 9-
462.02(C). But § 9-462.02(C) does not include any language about accrual.
¶11 Moreover, the legislature has on numerous occasions used the language “knew
or should have known.” See, e.g., A.R.S. § 12-821.01(B) (with respect to claim against
public entity or employee, “a cause of action accrues when the damaged party realizes he
or she has been damaged and knows or reasonably should know the cause”); A.R.S. § 13-
703(F)(10) (whether defendant “knew, or should have known,” that murder victim was
peace officer aggravating factor in sentencing); A.R.S. § 23-1062.01(C) (insurance carriers
not responsible for payments on industrial claims unless claims received within twenty-four
months of date on which “health care provider knew or should have known that service was
rendered”); A.R.S. § 29-314(1) (damage recovery allowed for reliance on execution of
limited partnership certificate containing false statement from “any general partner who
knew or should have known” statement was false). We presume that if the legislature had
meant for a “knew or should have known” standard to apply under § 9-462.02(C), it would
have included such language in the text of the statute. See Hughes, 203 Ariz. 71, ¶ 11, 50
P.3d at 823 (court assumes legislature says what it means).
¶12 Clear Channel contends that a reasonable diligence requirement is a
“universally accepted” discovery standard in the civil context regardless of whether it is
included in the plain language of the statute, citing Dicenso v. Bryant Air Conditioning
Co., 131 Ariz. 605, 643 P.2d 701 (1982). But Dicenso involved a plaintiff who had filed
his claim within the statutory limitations period—within four years after the cause of action
8
“accrued”—and then failed to serve the defendant or otherwise prosecute his claim until
three years later. Id. at 606-07, 643 P.2d at 702-03. The court held that reasonable
diligence in the prosecution of the action is an additional requirement. Id. at 607, 643 P.2d
at 703. Dicenso therefore does not support the argument that reasonable diligence must be
incorporated into the plain statutory language concerning discovery of the violation.
Moreover, enforcement of a civil violation of an ordinance raises different policy
considerations than a typical civil action. The prevalence of the discovery rule in a different
context does not mandate that we engraft onto § 9-462.02(C) language that the legislature
did not include.
¶13 Clear Channel also discusses case law from outside Arizona in support of its
position. Clear Channel argues that because the statutory language “after discovering” is
unique in Arizona’s statutory scheme, we should examine how other jurisdictions have
interpreted similar language. But as we stated above, when the statute is plain and
unambiguous, we will not engage in any other method of statutory interpretation. See N.
Valley Emergency Specialists, 208 Ariz. 301, ¶ 9, 93 P.3d at 503. Therefore, we need not
consider the proffered case law from other jurisdictions.
¶14 Finally, Clear Channel argues that the billboard violations are “ascertainable
with reasonable diligence” because billboards are by nature not concealed. It also argues
that the City has an adequate remedy in that the other provisions of § 9-462.02 allow the
City to condemn the nonconforming billboards or pay to have them relocated. Because we
9
must apply the plain meaning of the statute, neither of these observations, to the extent they
are accurate, is relevant. See Hughes, 203 Ariz. 71, ¶ 11, 50 P.3d at 823.
¶15 The plain language of § 9-462.02(C) is unambiguous and we apply it as
written. We therefore affirm the trial court’s refusal to add a “should have known with
reasonable diligence” standard to § 9-462.02(C).
Repealed Ordinances
¶16 Clear Channel next argues the trial court erred in permitting the City to use
repealed ordinances as the basis for its allegation that certain billboards were not legally
compliant. Clear Channel contends that, because no savings clause was enacted at the time
of repeal, these ordinances ceased to exist and therefore Clear Channel cannot be prosecuted
for violating them. We review a trial court’s decision on a motion to dismiss for an abuse of
discretion, but review issues of law de novo. See Keenen v. Biles, 199 Ariz. 266, ¶ 4, 17
P.3d 111, 112 (App. 2001); see also Airfreight Express Ltd. v. Evergreen Air Ctr., Inc.,
215 Ariz. 103, ¶ 11, 158 P.3d 232, 236 (App. 2007).
¶17 Signs are regulated in the Tucson Code under chapter three, “Advertising and
Outdoor Signs.” The prior provisions of this chapter were repealed and replaced in 1980
by Ordinance 5102 and again in 1987 by Ordinance 6737.
¶18 Clear Channel moved to dismiss multiple counts, claiming the complaint
alleged violations of ordinances that had been repealed and that the current ordinances
could not be applied retroactively. In response, the City stated that the billboards violated
the current ordinances and Clear Channel did not have vested rights based on
10
nonconforming use status because the billboards had also violated the previous ordinances.2
For purposes of its motion, Clear Channel did not dispute that the billboards at issue were
built in violation of ordinances existing at the time they were constructed and that they are
now in violation of current ordinances.
¶19 Clear Channel’s argument that the repealed ordinances cannot be enforced is
irrelevant with respect to the billboards at issue in view of the City’s present position that
it is attempting to enforce the current ordinances, not the repealed ordinances. Therefore,
we will not address the authorities Clear Channel cites in support of its claim that relates to
the enforceability of repealed ordinances.3
¶20 Clear Channel further argues that the City is barred from enforcing the current
ordinances against these billboards because the current ordinances did not exist when they
were built and the current ordinances cannot apply retroactively. In determining when an
ordinance is retroactively applicable, we apply the same general principles as we would
2
Initially, the City also asserted it could enforce the repealed ordinances outright
because they had been “substantially reenacted” and thus were not subject to the
“consequences of a true repeal.” The City subsequently abandoned this argument and does
not raise it on appeal.
3
At oral argument, Clear Channel argued that, as to some of the counts in the City’s
complaint, including the billboards at issue, the City alleged only violations of repealed
ordinances and did not allege any violations of the current ordinances. Clear Channel
argued that its theory regarding the enforceability of repealed ordinances is still applicable
to these counts. But Clear Channel did not argue below or in its briefs that any deficiency
in the City’s pleadings could provide a basis for claims or defenses. Issues raised for the first
time at oral argument are generally deemed untimely and waived. See Mitchell v. Gamble,
207 Ariz. 364, ¶ 16, 86 P.3d 944, 949-50 (App. 2004). Therefore, we do not address this
claimed deficiency in the City’s pleadings.
11
when construing statutes. See 6 Eugene McQuillin, The Law of Municipal Corporations
§ 20.70, at 236 (3d ed. 1998). An ordinance is “not necessarily ‘“retroactive in application
simply because it may relate to antecedent facts.”’” Garcia v. Browning, 214 Ariz. 250, ¶
12, 151 P.3d 533, 536 (2007), quoting Aranda v. Indus. Comm’n, 198 Ariz. 467, ¶ 24, 11
P.3d 1006, 1011 (2000), quoting Tower Plaza Invs. Ltd. v. DeWitt, 109 Ariz. 248, 250, 508
P.2d 324, 326 (1973). Rather, “legislation may not disturb vested substantive rights by
retroactively changing the law that applies to completed events.” San Carlos Apache Tribe
v. Superior Court, 193 Ariz. 195, ¶ 15, 972 P.2d 179, 189 (1999).
¶21 The current ordinances prohibit Clear Channel from maintaining a billboard
that is not in compliance with their provisions. Tucson Code § 3-7 states that “[i]n the event
any person should erect, alter, relocate, or maintain a sign in violation of the [sign code],
it is declared a public nuisance; and the city attorney is authorized to bring an action . . . to
enjoin such person from continuing the violation.” (Emphasis added.) And relevant to this
action, this section regulates the prospective “primary conduct” of maintaining an illegal
sign, not the past “primary conduct” of construction or alteration of the sign prior to the
adoption of the current code. Garcia, 214 Ariz. 250, ¶ 12, 151 P.3d at 536. Thus, the code
is not retroactive because it does not change the legal effect of “antecedent acts.” Id.
¶22 Nevertheless, an impermissible retroactive application of the code would occur
if the billboard owners had acquired vested rights based on the non-conforming use status
of the billboards. The present ordinances would not be allowed to terminate such rights.
“The critical inquiry in retroactivity analysis is not whether a[n ordinance] affects a
12
substantive right but whether a[n ordinance] affects a vested right. Thus the implicit
meaning of the statement ‘substantive rights may not be retroactively impaired’ is
‘substantive rights may not be impaired once vested.’” Hall v. A.N.R. Freight Sys., Inc.,
149 Ariz. 130, 139-40, 717 P.2d 434, 443-44 (1986). A vested right “is actually assertable
as a legal cause of action or defense or is so substantially relied upon that retroactive
divestiture would be manifestly unjust.” Id. at 140, 717 P.2d at 444; see also State v.
Olvera, 191 Ariz. 75, 77, 952 P.2d 313, 315 (App. 1997) (new regulation of conduct not
void as ex post facto law even when right to engage in conduct dependent on behavior
occurring prior to enactment of regulation).
¶23 The above principles are embodied in A.R.S. § 9-462.02, entitled, in part,
“Nonconformance to regulations,” on which Clear Channel also relies. See Motel 6
Operating Ltd. P’ship v. City of Flagstaff, 195 Ariz. 569, ¶ 8, 991 P.2d 272, 274 (App.
1999) (purpose of § 9-462.02(A) “‘is to prevent the injustice of forcing retroactive
compliance and the doubtful constitutionality of compelling immediate discontinuance of
a nonconforming use’”), quoting Gannett Outdoor Co. of Ariz. v. City of Mesa, 159 Ariz.
459, 462, 768 P.2d 191, 194 (App. 1989). Section 9-462.02(A) states in pertinent part:
Nothing in an ordinance or regulation authorized by this article
shall affect existing property or the right to its continued use for
the purpose used at the time the ordinance or regulation takes
effect, nor to any reasonable repairs or alterations in buildings
or property used for such existing purpose.
Thus, the statute and the cases protect legal nonconforming uses.
13
¶24 A nonconforming land use is a vested property right and is “defined as a lawful
use maintained after the effective date of a zoning ordinance prohibiting such use.” Rotter
v. Coconino County, 169 Ariz. 269, 271, 818 P.2d 704, 706 (1991). But the law does not
favor nonconforming uses because “they detract from the effectiveness of comprehensive
land use regulation.” Rotter, 169 Ariz. at 272, 818 P.2d at 707. Thus, despite the general
rule that courts should “strictly construe” zoning ordinances in favor of an affected property
owner, application of this rule to regulations governing nonconforming uses is precluded by
the public policy encouraging the elimination of nonconforming uses. Jones v. County of
Coconino, 201 Ariz. 368, ¶ 11, 35 P.3d 422, 425 (App. 2001). If a use is unlawful at the
time a new ordinance takes effect, it does not qualify as a nonconforming use and is subject
to the requirements of the new ordinance. See Rotter, 169 Ariz. at 271, 818 P.2d at 706
(defining nonconforming use as “lawful use”); Town of Front Royal v. Martin Media, 542
S.E.2d 373, 375-76 (Va. 2001) (“[F]or a prior use of land which violates a newly enacted
zoning restriction to be considered a lawful nonconforming use, the use must have been ‘a
lawful use existing on the effective date of the [new] zoning restriction.’”), quoting
Knowlton v. Browning-Ferris Indus. of Va., Inc., 260 S.E.2d 232, 234 n.1 (Va. 1979)
(emphasis added in Front Royal); 1 Kenneth H. Young, Anderson’s American Law of
Zoning § 6.01, at 481-82 (4th ed. 1996) (nonconforming use must be one that “lawfully
existed prior to the enactment of a zoning ordinance”).
¶25 Here, Clear Channel conceded that the billboards violated the relevant
ordinances when they were erected as well as the current ordinance. The billboards
14
therefore did not have legal nonconforming use status when the current ordinances were
enacted. Accordingly, Clear Channel did not have a “legal cause of action or defense” prior
to the enactment of the new ordinance and consequently had no vested right to claim the
billboards were legal nonconforming uses. Hall, 149 Ariz. at 140, 717 P.2d at 444. Under
such circumstances, the City would be permitted to enforce the current ordinances with
respect to those billboards. See Front Royal, 542 S.E.2d at 376-77.
¶26 Clear Channel implicitly argues that the term “use” in § 9-462.02(A) means
any use, even an illegal use. We reject this interpretation of the statute because of the
absurd results it would produce. We presume the legislature did not intend for § 9-
462.02(A) to legitimize all existing illegal uses of property, nor did it intend to make such
illegal uses immune from any future zoning regulation. See In re Estate of Zaritsky, 198
Ariz. 599, ¶ 11, 12 P.3d 1203, 1207 (App. 2000) (court presumes legislature does not
intend absurd result).
Addition of a Second Face
¶27 Clear Channel next claims the court erred in concluding that the addition of
a second face to the billboards associated with counts 80, 102, 116, and 117 caused the
billboards to lose their legal nonconforming use status under the applicable code. We
review a trial court’s legal conclusions de novo but will uphold any factual findings unless
they are clearly erroneous. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶
9, 156 P.3d 1149, 1152 (App. 2007).
A. Count 80
15
¶28 As Clear Channel acknowledged at oral argument, its factual recitation and
legal theory regarding count 80 is inaccurate. Clear Channel constructs its argument on the
premise that the trial court found the billboard associated with count 80 to be in violation
because a second face had been added without a permit. But in its detailed minute entry
ruling, the court found that, as to count 80, one billboard had originally been permitted but
that billboard was subsequently “removed and replaced with another board in a significantly
different location.” The court further found that no permit existed for a billboard at the
current location and also that a second face was added after relocation. The court ordered
the sign removed based primarily on the fact that its location was a clear violation, although
it acknowledged the fact that a second face had been added. Because Clear Channel fails
to adequately develop an argument based on the actual facts underlying the court’s order
of removal, this issue regarding count 80 is waived. See Jones v. Burk, 164 Ariz. 595, 597,
795 P.2d 238, 240 (App. 1990) (“Issues not clearly raised and argued in a party’s appellate
brief constitute waiver of error on review.”); see also Ariz. R. Civ. App. P. 13(a)(4)
(statement of facts must be “relevant to the issues presented for review”).
B. Counts 102, 116, and 117
¶29 As to the billboards associated with counts 102, 116, and 117, the trial court
found that each billboard was a legal nonconforming sign when the new sign code
ordinances took effect. Thereafter, a second face was added to each sign. The court
determined this caused all three signs to lose their nonconforming status. Clear Channel
16
concedes it had added a second face to all three billboards but argues this was permissible
under the applicable code.
¶30 There is some dispute over which code was applicable to which billboards
when altered.4 The versions of the sign codes at issue include the one adopted February 4,
1980 (1980 Code) and the one adopted July 6, 1987 (1987 Code). Because we conclude
that, under either sign code, adding a second face would result in the loss of nonconforming
status, we need not determine which code applies to which billboards.
¶31 The common law on nonconforming uses generally disfavors expansion or
enlargement of the use as contrary to the “spirit underlying zoning[, which] is to restrict
rather than to increase nonconforming uses.” Rotter, 169 Ariz. at 277, 818 P.2d at 712
(emphasis omitted), quoting Mueller v. City of Phoenix, 102 Ariz. 575, 585, 435 P.2d 472,
482 (1967) (Struckmeyer, J., dissenting). And § 9-462.02 protects “only existing property,
i.e., property which remains unchanged or receives only reasonable repairs or alterations.
It does not protect new or additional construction to that property.” Circle K Corp. v. City
of Mesa, 166 Ariz. 464, 467, 803 P.2d 457, 460 (App. 1990). In order to support the
public policy of eliminating nonconforming uses, courts do not follow the customary rule
of construing zoning regulations in favor of property owners. See Jones, 201 Ariz. 368, ¶
11, 35 P.3d at 425.
4
With respect to count 116, the City also contends that about fifteen years after the
addition of a second face, Clear Channel replaced the entire billboard without a permit.
Because we affirm the trial court’s decision on the basis of its undisputed findings regarding
the second face, we do not address the City’s contention regarding replacement.
17
¶32 The City ordinances cannot eliminate rights granted under § 9-462.02. See
Rotter, 169 Ariz. at 272, 818 P.2d at 707. But they could lawfully be more lenient to Clear
Channel than required by § 9-462.02 in defining a nonconforming use. We therefore will
analyze the ordinances to determine how they define a nonconforming use.
¶33 Because our resolution of this issue requires interpretation of an ordinance,
we treat it as a question of law and, as previously stated, apply the same general rules and
principles as when interpreting a statute. See Abbott v. City of Tempe, 129 Ariz. 273, 275,
630 P.2d 569, 571 (App. 1981). Our primary objective is to determine the enacting body’s
intent “by considering the ordinance as a whole and giving harmonious effect to all of its
sections.” Douglass v. Gendron, 199 Ariz. 593, ¶ 10, 20 P.3d 1174, 1177 (App. 2001).
“[W]e consider the words, context, subject matter, effects and consequences, spirit and
reason of the law, and other acts in pari materia.” Kahn v. Thompson, 185 Ariz. 408, 412,
916 P.2d 1124, 1128 (App. 1995); see also 8 McQuillin, supra, § 25.71, at 228
(“Ambiguous terms, or words susceptible of double meanings, should be read in the sense
best suited to effectuate the policy of the zoning laws.”) (footnote omitted). When
interpreting a term, “‘we apply a practical and commonsensical construction.’” Douglass,
199 Ariz. 593, ¶ 10, 20 P.3d at 1177, quoting State v. Alawy, 198 Ariz. 363, ¶ 8, 9 P.3d
1102, 1104 (App. 2000); see also Abbott, 129 Ariz. at 275, 630 P.2d at 571 (“[T]he court
will adopt the interpretation that is reasonable.”). We avoid an interpretation that makes
“any language superfluous or redundant.” Thomas & King, Inc. v. City of Phoenix, 208
Ariz. 203, ¶ 9, 92 P.3d 429, 432 (App. 2004). When a word is not defined in the ordinance
18
or in any statute, we generally “refer to a widely used dictionary to determine its meaning.”
Files v. Bernal, 200 Ariz. 64, ¶ 5, 22 P.3d 57, 59 (App. 2001).
1. The 1980 Code
¶34 The 1980 Code provided that a legally nonconforming sign would lose its
nonconforming status if it was altered and thereafter failed to comply with all current
provisions of the code. Ordinance 5102 §§ 3-6(13) and 3-81 (1980). Section 3-81 defined
“alteration” as “any structural change or structural alteration of the sign.” Section 3-6(25)
defined “structural change” as occurring when “the cost of repair or restoration of any sign
exceeds 50% of the valuation shown on the permit originally issued for the sign. Structural
change also includes replacement of 50% or more of the existing sign structure.” We
conclude that the addition of a second face cannot reasonably be considered a “repair,”
“restoration,” or “replacement” and thus does not constitute a “structural change.”
¶35 We must therefore determine whether the addition of a new face constitutes
a “structural alteration.” § 3-81. The code does not define this term. Our task is
complicated by the fact that A.R.S. § 9-462.02(A) allows “any reasonable . . . alterations
in buildings or property used for such existing purpose” without the loss of nonconforming
use status. Therefore, “structural alteration” in the ordinance must mean something more
than “reasonable alteration” in order to avoid an impermissible conflict with the statute. See
Rotter, 169 Ariz. at 272-73, 818 P.2d at 707-08.
¶36 The term “structural alteration” must also mean something different than
“structural change,” in order to avoid having “superfluous or redundant” language. Thomas
19
& King, 208 Ariz. 203, ¶ 9, 92 P.3d at 432. But the word “structural” cannot mean two
different things in the same sentence of an ordinance. Thus, we conclude the most sensible
way to construe “structural” for the purposes of “structural alteration” is in a manner
parallel to the definition of “structural” for the purposes of “structural change.” That is, a
“structural alteration” occurs when “the cost of [alteration] of any sign exceeds 50% of the
valuation shown on the permit originally issued for the sign. Structural [alteration] also
includes [alteration] of 50% or more of the existing sign structure.” Ordinance 5102 § 3-
6(25) (1980). By using the fifty percent limitation to denote a “structural” event, in defining
both “structural change” and “structural alteration,” the ordinance maintains internal
consistency.
¶37 However, we must still determine the meaning of the word “alteration.” The
code uses the word “alteration” as part of the definition of “structural alteration,” see § 3-
81, and provides no other express, relevant definitions. We must therefore determine the
difference between “alteration” and “change,” as used in the 1980 Code, in order to
ascertain the code’s definition of “structural alteration.”
¶38 The American Heritage Dictionary 99 (2d college ed. 1985) defines “alter”
as “[t]o change or make different; modify.” Because the term “alteration” is used distinctly
from the term “change” in the code, see § 3-81, and because “change” is defined in the code
as a repair, restoration, or replacement, see § 3-6(25), we must conclude that an “alteration”
incorporates any modification or difference other than a repair, restoration, or replacement.
Using this definition, the addition of a second face is clearly an alteration. Such alteration
20
is structural under the code either if it costs more than fifty percent of the original value of
the sign or if it affects fifty percent or more of the sign’s structure. We further conclude that
the ordinance as so construed does not violate A.R.S. § 9-462.02(A) because a structural
modification that exceeds this code’s restrictions would not constitute a “reasonable
alteration.” See City of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, ¶¶ 29-30, 983
P.2d 759, 767 (App. 1999).
¶39 The City argues that it was Clear Channel’s burden, as the property owner, to
show it had met the conditions of nonconforming status. Although no Arizona case has
expressly discussed which party has the burden in this context, we agree it rests with the
property owner. A municipality is empowered by state statute to enact and enforce zoning
ordinances, and the legislative intent is for these ordinances to be comprehensive. See
Gannett Outdoor Co., 159 Ariz. at 461, 768 P.2d at 193. While the municipality has the
initial burden of showing the property is in violation of the current code, the property owner
can avoid enforcement of the current code if it shows it has satisfied the municipality’s
regulations regarding nonconforming uses. See ¶¶ 23-24, supra. Thus, the assertion that
property is a nonconforming use constitutes an affirmative defense. See Black, Robertshaw,
Frederick, Copple & Wright, P.C. v. United States, 130 Ariz. 110, 114, 634 P.2d 398, 402
(App. 1981) (confession and avoidance an affirmative defense). As with affirmative defenses
generally, the party asserting the defense “has the burden of pleading and proving it.”
Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, ¶ 21, 138 P.3d
1210, 1216 (App. 2006). The City also points out that placing on the property owner the
21
burden of proof with regard to nonconforming status is consistent with numerous other
jurisdictions. See, e.g., Parish of Jefferson v. Chamel, 591 So. 2d 796, 799 (La. Ct. App.
1991); Town of Levant v. Seymour, 855 A.2d 1159, ¶ 19 (Me. 2004); Village of Cottleville
v. Star Concrete Co., 764 S.W.2d 651, 652-53 (Mo. Ct. App. 1988); Wooster v. Entm’t
One, Inc., 814 N.E.2d 521, ¶ 48 (Ohio Ct. App. 2004); Town of Front Royal v. Martin
Media, 542 S.E.2d 373, 376 (Va. 2001).
¶40 Therefore, Clear Channel had the burden of proving the cost of the
alteration—adding a second face—was fifty percent or less of the value on the original
permit and that it involved modifying less than fifty percent of the overall sign structure.
Clear Channel has not directed us to any evidence presented at trial regarding the costs
incurred in adding a second face to any of the billboards in question in relation to the
original value on the permit nor what percentage of the sign structure is affected by the
addition of a second face.5 In the absence of such evidence, Clear Channel has failed to
meet its burden of proving the billboards are lawful, nonconforming signs.
¶41 We further note that adding a second face to a billboard appears inconsistent
with the common law prohibition on expansion of nonconforming uses and the public policy
goal of eliminating such uses. See Rotter, 169 Ariz. at 276-77, 818 P.2d at 711-12; Jones,
5
Clear Channel argues that “adding a second face necessarily involves a change of less
than 50% of the existing sign structure (because of supporting structural posts and footings
which are the bulk of the expense).” But this argument conflates two alternative parts of the
definition of structural alteration; (1) when the cost of alteration exceeds fifty percent of the
original value or (2) when the alteration affects fifty percent or more of the structure. Clear
Channel had to show that adding a second face did not violate either of these conditions;
but as noted above, it failed to do so.
22
201 Ariz. 368, ¶ 11, 35 P.3d at 425. As the trial court noted in its ruling on count 117, the
addition of a second face “essentially ‘doubled the usage’” of the billboard. In a case
involving one of Clear Channel’s predecessors, this court observed in dicta that “adding [a]
second face to the billboard was an impermissible expansion of the nonconforming use.”
Whiteco Metrocom, 194 Ariz. 390, ¶ 18, 983 P.2d at 764. Such an interpretation is the
most likely to effectuate the legislative intent to provide “comprehensive regulations” of
outdoor signs. Ordinance 5102 § 3-2; see also 8 McQuillin, supra, § 25.71, at 228
(ambiguous terms should be interpreted to support policy goals of zoning law).
2. The 1987 Code
¶42 The sign code in effect after July 1987 provided that a nonconforming sign may
not be “moved, altered, removed and reinstalled, or replaced.” Ordinance 6737 § 3-91
(1987). As discussed, the addition of a second face cannot reasonably be construed as
moving, removing, reinstalling, or replacing a sign. The only remaining provision that could
encompass the addition of a second face is the term “altered.” Ordinance 6737 § 3-15(A)
defined “alter” as “[t]o change, modify or vary a sign structure without constructing a totally
new sign structure.” This definition of “alter” is almost identical to The American Heritage
Dictionary 99 (2d college ed. 1985) definition cited above and, as we concluded above,
adding a second face involves altering a sign structure.
¶43 Clear Channel suggests that the term “sign structure,” as opposed to sign,
refers only to the beams and supports and not to the face panels. Clear Channel does not
direct us to anything in the ordinance to support this interpretation. And at trial, a
23
construction worker employed by Clear Channel testified that face panels are constructed
out of either wood or metal. He confirmed that adding a new face meant adding an “entirely
new portion of the billboard,” on which additional advertising copy could be displayed. The
worker also confirmed that “additional construction . . . occurs in order to accommodate that
advertising copy.” This testimony factually refutes the assertion that a “sign structure” does
not encompass the face panels. We conclude that adding a new face is an alteration of the
“sign structure” and was therefore prohibited under the 1987 code.
¶44 Clear Channel argues, however, that to construe the code as prohibiting any
kind of alteration would impermissibly conflict with A.R.S. § 9-462.02(A), which protects
an owner’s right to make “reasonable repairs or alterations” to nonconforming property.
“[S]tatutes and ordinances that are in apparent conflict must be construed, if possible, to
give full force and effect to each.” See Rotter, 169 Ariz. at 273, 818 P.2d at 708.
Therefore, we will construe “reasonable alterations” as being exempt from the 1987 Code’s
prohibition of alterations to nonconforming signs. But the addition of a second face to a
single-faced sign cannot be considered a “reasonable alteration” within the meaning of the
statute, since it effectively expands the use of the billboard by one hundred percent. See id.
at 276, 818 P.2d at 711 (“[S]tatutory provisions regarding the expansion . . . of
nonconforming uses should be read narrowly. . . .”).
¶45 Finally, the City observes that, under all versions of the code, a permit has
always been required to “erect, reinstall, alter, repair, or relocate a billboard.” See Tucson
Code § 3-19; Ordinance 6737 § 3-19 (1987); Ordinance 5102 § 3-11 (1980); Ordinance
24
2890 § 3-117 (1966). Therefore, the City argues, a permit has always been required to add
a second face, because such addition would alter the billboard. And the addition of a
second face without a permit would be illegal, causing the billboard to lose its
nonconforming status. Clear Channel contends that because the permit fees did not vary
based on the number of faces, a permit was not required to construct a second face.
¶46 We find the City’s argument more persuasive in light of Clear Channel’s
concession that the original permits for all three billboards at issue specified when they
authorized two faces. And as the City points out, the code has always provided that, if the
work authorized by a permit is suspended or abandoned, the permit will expire within a
certain number of days. See Tucson Code § 3-22(D); Ordinance 6737 § 3-22(D) (1987);
Ordinance 5102 § 3-14 (1980); Ordinance 2890 § 3-138 (1966). Upon expiration, a new
permit has always been required to complete any remaining construction of the sign. Clear
Channel concedes that, with respect to the permit for count 117, which authorized the
construction of a billboard with two faces, the second face was not added before that permit
expired. As for the billboards associated with counts 102 and 116, Clear Channel concedes
that the original permit for each did not authorize a second face and does not argue a new
permit was ever obtained authorizing the construction of a second face. Thus, the addition
of a second face on these three billboards was illegal and caused the billboards to lose
nonconforming status.
¶47 Given the common law and public policy relating to nonconforming uses, see
Rotter, 169 Ariz. at 276-77, 818 P.2d at 711-12; Jones, 201 Ariz. 368, ¶ 11, 35 P.3d at 425,
25
and given the clear legislative goal to restrict nonconforming signs in both the 1980 and
1987 codes, see Ordinance 5102 § 3-81 (1980); Ordinance 6737 § 3-91 (1987), we
conclude that an interpretation permitting a nonconforming billboard owner to double the
usage of that billboard defies both legislative intent and common sense. As previously
noted, we will not construe legislation in a way that produces absurd results. See In re
Estate of Zaritsky, 198 Ariz. 599, ¶ 11, 12 P.3d 1203, 1207 (App. 2000); 6 McQuillin,
supra, § 25.71, at 228 (ambiguous terms should be interpreted to support policy goals of
zoning law).
¶48 Based on the foregoing, we conclude that, under both the 1980 Code and the
1987 Code, the addition of a second face to the billboards associated with counts 102, 116,
and 117 was prohibited and resulted in the loss of nonconforming use status.
Trial Court’s Discretion to Fashion a Remedy
¶49 In its appeal, the City contends the trial court erred in concluding it had the
discretion to determine the proper remedy when it found a violation. Accordingly, the City
argues the court erred in ordering any remedy other than removal for all billboards found
in violation of the code.
¶50 This issue requires us to determine how statutes and ordinances interact with
general principles of equity. This is a legal issue that we review de novo. See Home
Builders Ass’n of Cent. Ariz. v. City of Maricopa, 215 Ariz. 146, ¶ 6, 158 P.3d 869, 872
(App. 2007) (statutory interpretation reviewed de novo); Speros v. Yu, 207 Ariz. 153, ¶ 11,
83 P.3d 1094, 1097 (App. 2004) (interpretation of ordinance reviewed de novo); cf.
26
McCloud v. State, 217 Ariz. 82, ¶ 10, 170 P.3d 691, 695 (App. 2007) (when trial court
denies equitable tolling because it believes it is required to do so by law, standard of review
de novo).
¶51 “An injunction is an equitable remedy, which allows the court to structure the
remedy so as to promote equity between the parties. The discretion in injunctive
proceedings lies with the trial court, not the reviewing court.” Scholten v. Blackhawk
Partners, 184 Ariz. 326, 331, 909 P.2d 393, 398 (App. 1995). In Whiteco Metrocom, this
court applied that general principle where the trial court, instead of ordering removal of a
billboard, had ordered removal of the second advertising face of the billboard, “thereby
restoring the billboard to its nonconforming use configuration.” 194 Ariz. 390, ¶¶ 15, 18,
983 P.2d at 764. We noted that nothing in the relevant statute or the Tucson Code
prohibited that action, and deferred “to the trial court’s discretion in fashioning a remedy.”
Id. ¶ 19.
¶52 The City agrees that its argument in this case “appears somewhat inconsistent”
with Whiteco Metrocom, but nevertheless argues that this court “apparently did not consider
[Tucson Code] § 3-102(A)” in Whiteco Metrocom. The City contends the billboards at
issue here are “illegal signs” under Tucson Code § 3-101, and § 3-102(A) therefore requires
that they be removed or brought into compliance with the current code. It further contends
the billboards cannot be brought into compliance, so the only remedy available was
removal.
27
¶53 Even assuming the ordinances support the City’s position, unless a billboard
is a nuisance per se, the City council cannot force the superior court to take actions that the
court finds inequitable. Our supreme court has held that the failure to enjoin a nuisance per
se is an error of law. State ex rel. Sullivan v. Phoenix Sav. Bank & Trust Co., 68 Ariz. 42,
46, 198 P.2d 1018, 1020 (1948). “A nuisance per se or at law is ‘[a]n act, occupation, or
structure which is a nuisance at all times and under any circumstances, regardless of location
or surroundings.’” Mutschler v. City of Phoenix, 212 Ariz. 160, n.7, 129 P.3d 71, 76 n.7
(App. 2006), quoting Black’s Law Dictionary 962 (5th ed. 1979) (alteration in Mutschler).
In view of that definition, billboards that violate the City’s ordinances are not nuisances
per se.
¶54 The supreme court has further stated that trial courts have discretion in
fashioning a remedy in other public nuisance cases. See Armory Park Neighborhhood
Ass’n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 10, 712 P.2d 914, 923 (1985); Spur
Indus., Inc. v. Del E. Webb Dev. Co., 108 Ariz. 178, 183-84, 494 P.2d 700, 705-06 (1972).
Billboards that violate City ordinances are declared public nuisances in Tucson Code § 3-7
and so, based on these cases, the superior court would have discretion in fashioning a
remedy for a billboard that violates the sign code.
¶55 That result is in accord with the result reached by a majority of courts that
have considered whether a trial court may balance the equities in deciding whether to enjoin
28
a zoning violation.6 Although some courts have reached the opposite conclusion,7 the
6
See, e.g., Bauer v. Waste Mgmt. of Conn., Inc., 686 A.2d 481, 489 (Conn. 1996)
(“In an action brought by a zoning enforcement officer to enforce zoning regulations, the
granting of injunctive relief rests within the trial court’s sound discretion.”); Kauai County
v. Pac. Standard Life Ins. Co., 653 P.2d 766, 781 n.22 (Haw. 1982) (in dictum, noting
injunctive relief for unintentional zoning violation only appropriate “where the waste
engendered by the destruction of a completed improvement is clearly justified by
preservation of the interests protected by the zoning involved”); County of Kendall v.
Rosenwinkel, 818 N.E.2d 425, 434-35 (Ill. App. Ct. 2004) (when zoning violation
unintentional, court must balance equities before granting injunctive relief); Kosciusko
County Bd. of Zoning Appeals v. Wygant, 644 N.E.2d 112, 114-15 (Ind. 1994) (although
concluding denial of injunctive relief abuse of discretion, “hesitat[ing] to establish a rule
requiring the issuance of an injunction, since such rules tend to undermine the discretionary
nature of equitable remedies”); Ferris v. City of Las Vegas, 620 P.2d 864, 865-66 (Nev.
1980) (although injunctive relief appropriate to restrain zoning violation, “[t]he granting,
refusing or dissolving of injunctions is a matter of discretion”); Swan Creek Twp. v. Wylie
& Sons Landscaping, 859 N.E.2d 566, ¶ 23 (Ohio Ct. App. 2006) (“Once a violation [of
a zoning ordinance] is established, the decision of whether to grant or deny injunctive relief
rests in the sound discretion of the court.”); City of Dallas v. Gaechter, 524 S.W.2d 400,
402 (Tex. Civ. App. 1975) (statute authorizing local authority to institute action to restrain
violation “[did] not remove all discretion from the trial court with respect to issuance of a
mandatory injunction to enforce a zoning ordinance”); Salt Lake County v. Kartchner, 552
P.2d 136, 138-39 (Utah 1976) (“An injunction will be denied where the granting of it would
be inconsistent with basic principles of justice and equity, even though it is within the scope
of relief available in equity courts to enjoin violations of zoning laws.”); Fenwick v. City of
Burlington, 708 A.2d 561, 564-65 (Vt. 1997) (trial court had “wide discretion” in deciding
whether to enjoin zoning violation); Forest County v. Goode, 579 N.W.2d 715, ¶¶ 12, 54-
55 (Wis. 1998) (statute that provided local authority “may” seek injunctive relief “[did] not
eliminate the traditional equitable power of the [trial] court”); Bd. of County Comm’rs of
Teton County, Wyo. v. Crow, 131 P.3d 988, ¶¶ 8-11, 16 (Wyo. 2006) (where statute
permitted enforcement of zoning resolution by abatement, trial court “invested with a
measure of discretion” and “required to make specific findings balancing the equities”); see
also 4 Kenneth H. Young, Anderson’s American Law of Zoning § 29.03, at 688 (4th ed.
1997) (“As an injunction is granted, if at all, in the exercise of equity powers, courts will not
grant an injunction which is broader than necessary, or which will, in the view of the court,
work an injustice.”); 83 Am. Jur. 2d Zoning & Planning § 981 (2003) (“Although a
mandatory injunction is within the scope of relief available to remedy the violation of a
zoning ordinance, the grant or denial of such a harsh remedy is in the sound discretion of
29
majority rule is consistent with Spur Industries, Armory Park, and Whiteco Metrocom, and
recognizes the discretion traditionally afforded trial courts in proceedings for injunctive
relief. See Scholten, 184 Ariz. at 331, 909 P.2d at 398. Accordingly, we conclude that, in
a proceeding in equity to enforce a zoning ordinance against billboards, the trial court has
discretion in fashioning a remedy.
¶56 The City cites Arizona State Board of Dental Examiners v. Hyder, 114 Ariz.
544, 562 P.2d 717 (1977), in support of its argument that the trial court had no discretion
to order any remedy other than removal. In Hyder, the Arizona State Board of Dental
Examiners had sought to enjoin two parties from practicing dentistry without a license. Id.
at 545, 562 P.2d at 718. The trial court found that the parties had not been practicing
dentistry and refused to enjoin their conduct. Id. Our supreme court noted the
“overwhelming and uncontradicted” evidence that the parties had been practicing dentistry.
Id. at 546, 562 P.2d at 719. It then addressed whether the Board should have been required
to show injury and irreparable harm before the trial court could grant an injunction. Id. The
court concluded that there was no such requirement. Id. It also noted that the legislature
the district court.”); 101A C.J.S. Zoning & Land Planning § 396 (2005) (same).
7
See, e.g., Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 206 (Fla. Dist. Ct. App.
2001) (where statute specified injunctive relief for zoning violation, legislature created rule,
“not a grant of discretion”); Little Joseph Realty, Inc. v. Town of Babylon, 363 N.E.2d
1163, 1168 (N.Y. 1977) (zoning violation “must, subject to the existence of any appropriate
equitable defenses, be enjoined unconditionally”); see also Zygmunt J.B. Plater, Statutory
Violations & Equitable Discretion, 70 Cal. L. Rev. 524, 527 (1982) (“When a court in
equity is confronted on the merits with a continuing violation of statutory law, it has no
discretion or authority to balance the equities so as to permit that violation to continue.”).
30
had declared the licensing requirement to be in the public interest and had provided
injunctive relief as a remedy for practicing dentistry without a license. Id. Under those
circumstances, the court held, the trial court had no discretion to deny injunctive relief. Id.
¶57 The City notes that the sign code provides that regulation of billboards is in
the public interest, see Tucson Code § 3-2, and it claims that the code further provides the
only remedies for a violation: removal or compliance with the code. But the statute at issue
in Hyder expressly provided that violations could be restrained “‘as nuisances per se,’” 114
Ariz. at 546, 562 P.2d at 719, quoting A.R.S. § 32-1269(B). As discussed above, however,
billboards that violate the City’s ordinances are not nuisances per se. Additionally, in
Hyder, the court was dealing with a statute enacted by the state legislature, which has the
authority to set the policy of the state. Stein v. Sonus USA, Inc., 214 Ariz. 200, ¶ 18, 150
P.3d 773, 778 (App. 2007). Although the City council sets the public policy for the City,
Redelsperger v. City of Avondale, 207 Ariz. 430, ¶ 23, 87 P.3d 843, 849 (App. 2004), it
cannot limit the power of the superior court to fashion a remedy in actions for injunctive
relief against nuisances other than nuisances per se.
¶58 Having concluded the trial court had discretion to fashion a proper remedy,
we next address the City’s claim that the court abused its discretion in denying relief to the
City as to two billboards and concluding violations could be remedied as to three billboards.
A trial court abuses its discretion if it commits an error of law or if it “reaches a conclusion
without considering the evidence . . . or ‘the record fails to provide substantial evidence to
support the trial court’s finding.’” Flying Diamond Airpark, 215 Ariz. 44, ¶ 27, 156 P.3d
31
at 1155, quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529
(1982). We defer to the trial court’s factual findings unless clearly erroneous. See
Ahwatukee Custom Estates Mgmt. Ass’n v. Turner, 196 Ariz. 631, ¶ 5, 2 P.3d 1276, 1279
(App. 2000). A factual finding is clearly erroneous if no substantial evidence supports it.
See Visco v. Universal Refuse Removal Co., 11 Ariz. App. 73, 75, 462 P.2d 90, 92 (1969).
¶59 Citing the trial court’s finding that Clear Channel took title to these billboards
knowing there were “legal issues” with them, the City first contends the court erred by
concluding the violations were unintentional. It thus argues the court should not have
balanced the equities. See Flying Diamond Airpark, 215 Ariz. 44, ¶ 10, 156 P.3d at 1152
(“‘[E]quitable discretion should not be used to protect an intentional wrongdoer.’”),
quoting Decker v. Hendricks, 97 Ariz. 36, 41-42, 396 P.2d 609, 612 (1964). But with
respect to the billboards at issue in counts 11, 61, 75, and 114, the court expressly found
that the original violation by Clear Channel’s predecessor had been unintentional. And with
respect to the billboard at issue in count 97, although the court made no express finding that
the original violation had been unintentional, it implicitly did so in exercising its discretion
to deny relief. The record supports those findings. The City does not explain how Clear
Channel’s acquisition of approximately 20,000 billboards nationwide knowing there were
“legal issues” with some of them, including some in Tucson, would render the prior
unintentional violation intentional and it cites no authority in support of that argument. We
therefore reject it.
32
¶60 The City also contends that the mere extent of the violation is not sufficient
to support a finding that a violation is innocent and that no other evidence supported the
conclusion that the violations were innocent. But the trial court could properly consider that
a violation is minor in determining whether the violation was intentional, especially when
compared to more substantial violations. And, in any event, the court’s rulings make clear
that it relied on evidence other than the extent of the violations. Accordingly, this argument
is without merit.
¶61 The City next contends the trial court abused its discretion in concluding that
the balance of equities favored a remedy other than removal. Review of this issue requires
analysis of each count individually. In doing so, we view the evidence in the light most
favorable to sustaining the trial court’s findings. See Sw. Soil Remediation v. City of
Tucson, 201 Ariz. 438, ¶ 2, 36 P.3d 1208, 1210 (App. 2001).
A. Count 11
¶62 The billboard at issue in count 11 was constructed pursuant to a permit and
located in a proper zone. At some point between 1970 and 1980, the billboard was moved
onto a separate but contiguous piece of property in a zone that does not allow billboards.8
It also exceeds the maximum height for the zone in which it is currently located, although
apparently it would not exceed the maximum height were it still in the zone in which it had
originally been located. In 1980, the City adopted a sign ordinance establishing a minimum
8
The City contends the billboard was moved twice. But there was no admissible
evidence of one of the purported relocations. The trial court did, however, find that the
billboard had been “relocated many years ago,” and this finding is supported by the record.
33
interval between billboards. The billboard at issue in count 11, whether in its current
location or moved back to its original location, violates the minimum interval requirement.
¶63 The trial court found that the relocation to an improper zone had not been
knowing and intentional, noting that the Arizona Department of Transportation did not
require a permit for a minor relocation. It also found the violation to be de minimis and
concluded, in light of the City’s prior lax enforcement of its ordinances, that it was
appropriate to exercise “discretion and/or estoppel as to this sign’s loss of lawful non-
conforming status.” It ordered the sign relocated back to its original location.
¶64 In ordering the billboard at issue in count 11 relocated rather than removed,
the trial court suggested it was remedying the loss of a prior nonconforming use, in
accordance with Clear Channel’s assertion. The character of a particular use is a question
of fact, but whether that use was legal is a question of law. See Maricopa County v.
Barkley, 168 Ariz. 234, 245, 812 P.2d 1052, 1063 (App. 1990). Here, the billboard is
admittedly in an incorrect zone today and Clear Channel has not produced any evidence that
the billboard was located in the proper zone when the 1980 code was adopted. See ¶ 39,
supra (property owner bears burden of showing valid, nonconforming use). On the
contrary, the evidence in the record suggests that the billboard was moved before 1980,
when it could potentially have become a lawful, nonconforming use. Thus, despite Clear
Channel’s claim to the contrary, the billboard was illegal where it was located when the
1980 ordinance was enacted and never obtained nonconforming use status. See ¶ 24, supra.
The court committed legal error in concluding that ordering it moved would remedy the loss
34
of its nonconforming use because it never was a nonconforming use. The court therefore
abused its discretion. See Flying Diamond Airpark, 215 Ariz. 44, ¶ 27, 156 P.3d at 1155
(legal error constitutes abuse of discretion). We cannot say whether the court would have
exercised its discretion in the same way had it properly concluded that the billboard never
attained lawful, nonconforming use status. Therefore, unless application of equitable
estoppel was appropriate, we cannot affirm the judgment as to this count.
¶65 We review the trial court’s decision to apply equitable estoppel for an abuse
of discretion. See id. (decision not to apply estoppel reviewed for abuse of discretion);
Garden Lakes Cmty. Ass’n v. Madigan, 204 Ariz. 238, ¶ 10, 62 P.3d 983, 986 (App. 2003)
(denial of injunctive relief reviewed for abuse of discretion); Bartholomew v. Superior
Court, 4 Ariz. App. 50, 52, 417 P.2d 563, 565 (1966) (estoppel an equitable defense to be
applied in trial court’s discretion). “Questions of estoppel . . . are fact-intensive inquiries.
We defer to the trial court with respect to any factual findings explicitly or implicitly made,
affirming them so long as they are not clearly erroneous.” John C. Lincoln Hosp. & Health
Corp. v. Maricopa County, 208 Ariz. 532, ¶ 10, 96 P.3d 530, 535 (App. 2004) (citations
omitted).
¶66 Equitable estoppel generally applies where (1) “‘the party to be estopped
commits acts inconsistent with a position it later adopts’”; (2) the other party relies on those
acts; and (3) the latter party is injured by “‘the former’s repudiation of its prior conduct.’”
Whiteco Metrocom, 194 Ariz. 390, ¶ 22, 983 P.2d at 765, quoting Valencia Energy Co. v.
Ariz. Dep’t of Revenue, 191 Ariz. 565, ¶ 35, 959 P.2d 1256, 1267-68 (1998). “[A]ll these
35
requirements are conditioned by the general rule that estoppel may apply against the state
only when the public interest will not be unduly damaged and when its application will not
substantially and adversely affect the exercise of governmental powers.” Valencia Energy
Co., 191 Ariz. 565, ¶ 40, 959 P.2d at 1269. In Valencia Energy Co., our supreme court
relied on a federal case for the proposition that “‘estoppel should be applied against the
Government with utmost caution and restraint.’” Id. ¶ 41, quoting Schuster v. Comm’r, 312
F.2d 311, 317 (9th Cir. 1962). Only an “affirmative act[]” that “bear[s] some considerable
degree of formalism under the circumstances” can form the basis for the application of
estoppel against the government. Id. ¶ 36.
¶67 In Whiteco Metrocom, we cited Valencia Energy Co. for the proposition that
estoppel will apply against the government only if its conduct threatens to cause a serious
injustice. Whiteco Metrocom, 194 Ariz. 390, ¶ 22, 983 P.2d at 765. But the portion of
Valencia Energy Co. we cited was merely repeating what the supreme court had previously
said in Freightways, Inc. v. Arizona Corporation Commission, 129 Ariz. 245, 630 P.2d
541 (1981). See Valencia Energy Co., 191 Ariz. 565, ¶ 33, 959 P.2d at 1267, citing
Freightways, 129 Ariz. at 248, 630 P.2d at 544. The later analysis in Valencia Energy Co.
does not provide that a threat of “serious injustice” is required to estop the government.
Instead, if the traditional elements of estoppel are present, it will apply against the
government “when the public interest will not be unduly damaged and when its application
will not substantially and adversely affect the exercise of governmental powers.” Id. ¶ 40.
To the extent we suggested in Whiteco Metrocom that “serious injustice” is an express
36
requirement under Valencia Energy Co., we did so in error. The threat of serious injustice
to the proponent of estoppel may be considered in determining whether to apply estoppel,
but it is not a requirement under Valencia Energy Co.
¶68 The trial court found it appropriate to apply equitable estoppel as to count 11
based on “the prior laxity of enforcement and any real requirement of compliance by the
City many years ago.” But mere “laxity of enforcement” is not an affirmative act that
“bear[s] some considerable degree of formalism under the circumstances” and therefore does
not satisfy the standard set out in Valencia Energy Co. Id. ¶ 36; see also Nat’l Adver. Co.
v. Ariz. Dep’t of Transp., 126 Ariz. 542, 544, 617 P.2d 50, 52 (App. 1980) (“The state
cannot be estopped from pursuing statutory remedies available to it because of alleged
dilatory conduct of its officers in acting to enforce the remedy.”); Thomas & King, Inc. v.
City of Phoenix, 208 Ariz. 203, ¶ 27, 92 P.3d 429, 436 (App. 2004) (stating in dictum that
prior lax enforcement will not support an estoppel claim against governmental agency).
There is no evidence in the record of an affirmative, formal, authorized act on the part of the
City upon which Clear Channel’s predecessor could have relied in moving the billboard to
an illegal location. The court therefore abused its discretion when it concluded the City was
estopped from enforcing the ordinance. Accordingly, we remand this matter to the trial
court for further consideration of the exercise of its discretion in fashioning a remedy as to
count 11 in light of the discussion above.
B. Count 61
37
¶69 The billboard at issue in count 61 was constructed pursuant to a permit issued
in 1987. But the billboard was not constructed in the proper location and intrudes more
than seven feet into a public right of way. The trial court found, and Clear Channel does
not contest, that the billboard as permitted would have violated the then-existing minimum
interval provision.9 The court noted that the error in the billboard’s location is relatively
minor compared to errors in the locations of other billboards and that the error was probably
attributable to a mistake made by someone other than Clear Channel’s predecessor. The
court also suggested that, had the error been discovered before the “more rigid sign codes
took effect,” the City would have allowed the billboard to be relocated. The court ruled,
however, that the billboard could not remain in the public right of way and therefore
ordered the billboard removed unless relocated to “the property described in the lease.”
¶70 The trial court acknowledged the apparent minimum interval violation in its
ruling. It also stated that it “reject[ed] the City’s attempt to strip this billboard of its permit
and lawful status as a result of [the] error in its location.” But if the billboard would have
violated the minimum interval requirement even had it been constructed in the proper
location, it would not have been lawful. See 8 Eugene McQuillin, Municipal Corporations
§ 25.153, at 561 (3d ed. 2000) (“A permit for a use prohibited by a valid zoning ordinance,
regulation or restriction is void, and subject to revocation.”) (footnotes omitted); cf. Outdoor
Sys., Inc. v. Ariz. Dep’t of Transp., 171 Ariz. 263, 264, 830 P.2d 475, 476 (App. 1992)
9
The trial court apparently found that the minimum interval requirement was 400 feet.
On the record before us, we cannot determine whether the minimum interval that applied
to this billboard when constructed was 400 feet or 200 feet.
38
(signs constructed pursuant to permits unlawful because permits violated statute). To the
extent the court was relying on its discretion in fashioning a remedy, its conclusion was
based on its belief that the billboard would have been lawful if constructed in the proper
place. Such a conclusion is inconsistent with the finding of a minimum interval violation.
Accordingly, absent estoppel, we cannot uphold the court’s decision on count 61. See
Flying Diamond Airpark, 215 Ariz. 44, ¶ 27, 156 P.3d at 1155 (trial court abuses discretion
when decision not supported by record).
¶71 The trial court did not state estoppel was a basis for its decision on count 61
as it did for three other counts. Nor did the court expressly analyze the elements of estoppel
in ruling on count 61. It may have applied estoppel inferentially, based perhaps on the fact
that the City had issued a permit authorizing construction of that billboard. But because the
court did not expressly base its decision on estoppel and it improperly considered lax
enforcement as a possible basis for estoppel on another count, we remand this matter to the
court so that it may consider the factors that are relevant to a determination of whether to
apply estoppel or, in the alternative, to exercise its discretion in fashioning a remedy. See
Whiteco Metrocom, 194 Ariz. 390, ¶ 24, 983 P.2d at 765-66.
C. Count 75
¶72 The billboard at issue in count 75 was lawful when constructed in 1978. It
became a lawful, nonconforming use in 1980, when the City reduced the maximum billboard
height and the minimum required interval from other billboards. Clear Channel later altered
the billboard by replacing a face on one side with a larger one. The record does not contain
39
a permit for that alteration. The trial court found the violation was not knowing and
intentional and therefore concluded it was appropriate to exercise discretion in fashioning
a remedy. It ordered Clear Channel to replace the contested face with a face the same size
as the original face and ordered removal if Clear Channel did not comply.
¶73 The City concedes the billboard at issue in count 75 was a lawful,
nonconforming use when the face was replaced. The remedy the trial court
ordered—restoring the sign to its prior nonconforming use configuration—is the remedy that
was ordered by the trial court in Whiteco Metrocom. 194 Ariz. 390, ¶ 18, 983 P.2d at 764.
We found no abuse of discretion in that remedy in that case.
¶74 The City nevertheless contends this case differs because it was not clear in
Whiteco Metrocom whether the sign at issue could be brought into compliance with the
then-current sign code, whereas this sign cannot be brought into compliance. But in
Whiteco Metrocom, the court did not order the sign brought into compliance with the
current code; it ordered it restored to its prior nonconforming use. Id. Thus, it was
irrelevant whether the sign could have been brought into compliance. In light of Whiteco
Metrocom, we cannot conclude that the trial court abused its discretion by ordering the sign
returned to its prior, lawful state.
¶75 The City also argues the trial court abused its discretion in balancing the
equities, contending increase in the face size was too significant to constitute a minor
violation, the City did not contribute to the violation, and the hardships favored the City.
40
But the court weighed the relevant factors, and we will not reweigh them on appeal. See
Scholten, 184 Ariz. at 331, 909 P.2d at 398 (trial court in better position to weigh equities).
D. Count 97
¶76 The billboard at issue in count 97 was constructed pursuant to a permit,
although the permit apparently should not have been issued because the zone in which the
billboard was built did not allow billboards. The permit was issued by the City’s Building
Safety Division, which had authority to issue permits, see Ordinance 5102 § 3-14 (1980),
was signed by a sign inspector, and appears to be marked “approved.” A separate
application to the Architectural Approval Board (AAB) is signed and marked “approved.”
Although the City contends the permit “was issued by a low level City employee at the sign
section desk of the City’s Development Services Department,” the portions of the record the
City cites do not support this assertion. The trial court found the City had failed to prove
that the AAB had lacked the authority to issue permits or that the permit had been
improperly issued. Applying the doctrine of estoppel and otherwise exercising its discretion,
the court denied the City relief on count 97.
¶77 In light of the permit, the trial court found the violations other than the
location in the wrong zone de minimis. The court noted as other relevant circumstances the
lack of objection by the lessor, the character of the neighborhood, and the issuance of other,
later permits for electrical work. Because it did not find the location in the wrong zone de
minimis, and because it relied on the issuance of the permit, it appears the court’s decision
was necessarily based on estoppel, not discretion alone.
41
¶78 As discussed above, equitable estoppel can only apply against the government
if there is some affirmative, authorized, formal act. See Valencia Energy Co., 191 Ariz. 565,
¶ 36, 959 P.2d at 1268. A written permit issued by an authorized public official can satisfy
that requirement. Cf. Pingitore v. Town of Cave Creek, 194 Ariz. 261, ¶ 25, 981 P.2d 129,
133 (App. 1998) (finding sufficiently formal act based on town’s issuance of “a variety of
permits and variances,” zoning clearance, and written response to building permit
application).
¶79 The City contends estoppel could not apply because the AAB was not
authorized to issue permits. But the trial court stated it did “not believe that the City ha[d]
sufficiently established that the AAB did not have [the] authority [to issue permits] and that
the sign did not have a proper permit.” The City is correct that equitable estoppel is an
affirmative defense, and Clear Channel thus bore the burden of proving its elements. See
Knight v. Rice, 83 Ariz. 379, 381, 321 P.2d 1037, 1038 (1958); Lowe v. Pima County, No.
2 CA-CV 2006-0212, ¶ 34, 2008 WL 683656, *9 (Ariz. Ct. App. Mar. 13, 2008). The City
does not, however, claim that the permit was issued by anyone other than a City official;
instead, it claims the officials who issued it were without authority to do so. But once Clear
Channel established a permit had been issued by a City official in 1981 and additional
permits had been issued, the court could correctly have accepted the permit’s validity in the
absence of any contradictory evidence presented by the City. See Verdugo v. Indus.
Comm’n, 108 Ariz. 44, 48, 492 P.2d 705, 709 (1972) (public officials “presumed to have
done their duty” and their acts “are presumed to be correct and legal in absence of clear and
42
convincing evidence to the contrary”) (citing cases). Thus, although ultimately it remained
Clear Channel’s burden to prove the elements of estoppel, the burden of producing evidence
to show that the issuance of the permit was unauthorized then shifted to the City. See
Golonka v. Gen. Motors Corp., 204 Ariz. 575, ¶ 50, 65 P.3d 956, 971 (App. 2003). The
court concluded the City had failed to sustain this burden, and the record supports its
conclusion.
¶80 The City also argues Clear Channel’s predecessor could not have reasonably
relied on the permit because it “knew or should have known that the AAB was not
authorized to determine sign and zoning code compliance.”10 But, as noted above, the trial
court concluded the City had failed to demonstrate that the AAB lacked authority to issue
permits or that the permit was improperly issued. Accordingly, in the absence of a factually
flawed permit application, the court reasonably could have concluded that Clear Channel’s
reliance was justified.
¶81 The City also contends that failure to apply estoppel would not result in a
serious injustice to Clear Channel because the regulation of billboards is a legitimate
exercise of the City’s police power and Clear Channel and its predecessor have been earning
10
At oral argument in this court, the City asserted for the first time that Clear
Channel’s predecessor could not have reasonably relied on the permit because it knew or
should have known that the permit was issued for a zone that did not allow billboards.
Because the City did not make this argument below or in its briefs, it is waived. See Mitchell
v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944, 949-50 (App. 2004) (“Generally, issues and
arguments raised for the first time at oral argument on appeal are untimely and deemed
waived.”).
43
income from the billboard for more than twenty-six years.11 It also cites Clear Channel’s
purported lack of diligence concerning the “legal issues” involving the billboards. But, as
discussed above, serious injustice is not a requirement under Valencia Energy Co. And,
although we agree with the City’s statement at oral argument that the relief ordered should
not exceed the detriment caused to Clear Channel, the trial court reasonably could have
concluded that Clear Channel’s construction of the billboard pursuant to the permit and
Clear Channel’s loss of income after it and its predecessor had relied upon the permit for
over two decades would constitute an “injury” or “substantial detriment” sufficient to invoke
estoppel. Accordingly, the court did not abuse its discretion.
¶82 The City also contends that application of estoppel here is contrary to the
public’s interest in removing billboards and nonconforming uses generally. But this count
involves only one billboard that had been constructed many years ago pursuant to a permit.
Determining damage to the public interest depends on the facts of each case. See
11
The City also cites Outdoor Systems, Inc. v. Arizona Department of
Transportation, 171 Ariz. 263, 830 P.2d 475 (App. 1992), apparently contending that
estoppel cannot apply when based on the fact that a permit was erroneously issued by an
authorized public official. But that general proposition is inconsistent with Valencia Energy
Co. And, in Outdoor Systems, which pre-dated Valencia Energy Co., this court based its
reasoning on the lack of a serious injustice. Id. at 265, 830 P.2d at 477. As noted above,
Valencia Energy Co. does not require a showing of serious injustice in order to apply
estoppel. Furthermore, the analysis in Outdoor Systems was based on its specific facts. We
distinguished the facts in Freightways, noting that, in Freightways, “a half a century was
sufficient time” for a “‘void certificate [to] ripen into a valid certificate.’” Outdoor Sys., 171
Ariz. at 265, 830 P.2d at 477, quoting Freightways, 129 Ariz. at 248, 630 P.2d at 544
(alteration in Outdoor Sys.). Outdoor Systems, on the other hand, involved permits issued
only two to three years before the violation was discovered. 171 Ariz. at 263, 830 P.2d at
475.
44
Freightways, 129 Ariz. at 248, 630 P.2d at 544. The trial court reasonably could have
concluded that application of estoppel to this count would not frustrate the public interest.
E. Count 114
¶83 The billboard at issue in count 114 was constructed pursuant to a permit, but
it exceeds the thirty-five-foot maximum allowable height for its zone by approximately one-
and-a-half to two-and-a-half feet.12 The trial court found that the violation was
unintentional and de minimis, noting that the City now uses measurement methods that are
more precise than those used when the billboard was constructed. Based on “discretion as
to remedy and estoppel as to conduct,” the court denied relief on count 114.
¶84 The trial court did not abuse its discretion on this count. The evidence at trial
supports the court’s conclusion that the violation is de minimis and was unintentional. The
court could have concluded that the injury to Clear Channel from remediating the minimal
violation would have outweighed any benefit to the public.
¶85 The City, citing Whiteco Metrocom and National Advertising Co., contends
the trial court impermissibly relied, in part, on the City’s lax enforcement of its ordinances.
But both of those cases involved the application of estoppel to parties that knew or should
12
Clear Channel claims the sign exceeds the height limitation by “anywhere between
eight inches and three feet.” But the portion of the transcript it cites for this assertion
contains no testimony regarding the height of the billboard. Although there is testimony
elsewhere in the transcript regarding various height measurements taken from different
places, the trial court found the City’s measurements more credible. Under the City’s
interpretation, the billboard exceeds the height limitation by approximately one-and-a-half
to two-and-a-half feet. See Sw. Soil Remediation, 201 Ariz. 438, ¶ 2, 36 P.3d at 1210
(court of appeals views evidence in light most favorable to sustaining trial court’s findings).
45
have known of a violation. See Whiteco Metrocom, 194 Ariz. 390, ¶ 26, 983 P.2d at 766;
Nat’l Adver. Co., 126 Ariz. at 545-46, 617 P.2d at 53-54. Neither case suggests the court
cannot consider laxity of enforcement in balancing the equities where there is no intentional
wrongdoing.
¶86 The City also contends the trial court should have balanced the equities in
favor of the City because Clear Channel has had the opportunity to earn revenue from this
billboard for twenty-nine years. But, again, the court considered these factors. We will not
weigh them again. The court therefore did not abuse its discretion in denying relief on count
114.13
Discretion to Order Removal
¶87 In its cross-appeal, Clear Channel argues the trial court erred by ordering
removal, as opposed to remediation, of the billboards associated with counts 80, 102, 116,
and 117. As we explained above, this decision was within the court’s discretion. See ¶ 55,
supra. As we further explained above, a trial court abuses its discretion if it commits an
error of law or if it “reaches a conclusion without considering the evidence . . . or ‘the record
fails to provide substantial evidence to support the trial court’s finding.’” Flying Diamond
Airpark, 215 Ariz. 44, ¶ 27, 156 P.3d at 1155, quoting Grant, 133 Ariz. at 456, 652 P.2d
at 529.
13
Because we have concluded the trial court did not abuse its discretion in fashioning
a remedy as to count 114, we need not address the City’s argument that the court’s
application of estoppel to that count was inappropriate.
46
¶88 With regard to count 80, Clear Channel maintained in its brief that the factual
basis for the trial court’s order was the addition of the second face and argued it should have
been allowed to remediate the billboard by removing the second face. Because, as
previously discussed and as acknowledged at oral argument, the factual predicate for the
court’s order of removal was primarily the relocation of the sign, not the addition of a
second face, Clear Channel failed to adequately develop its argument regarding this issue
and it is therefore waived. See Jones v. Burk, 164 Ariz. 595, 597, 795 P.2d 238, 240 (App.
1990) (“Issues not clearly raised and argued in a party’s appellate brief constitute waiver of
error on review.”); see also Ariz. R. Civ. App. P. 13(a)(4) (statement of facts must be
“relevant to the issues presented for review”).
¶89 As to the billboards associated with counts 102, 116, and 117, we have
already established that they lost their nonconforming use status when a second face was
added to each without a permit. See ¶ 48, supra. As such, they are subject to regulation
under the current sign code, which allows for their removal. See Tucson Code §§ 3-19, 3-
91, 3-101, 3-102. The trial court found that for each count, the addition of a second face
was an intentional act by Clear Channel’s predecessor and that, under the applicable sign
code, the City would not have granted a permit to add the second face even if Clear Channel
had sought one. Clear Channel does not dispute these findings on appeal and does not
argue that the court failed to consider the evidence or that the record fails to provide the
evidence necessary to support the court’s finding. The only remaining ground on which we
47
could find an abuse of discretion is if the court committed an error of law. See Flying
Diamond Airpark, 215 Ariz. 44, ¶ 27, 156 P.3d at 1155.
¶90 Clear Channel argues the trial court ignored the decision in Whiteco
Metrocom. But, as we previously noted, in Whiteco Metrocom this court only found that it
was not an abuse of discretion to order remediation of signs to which a second face had been
added. 194 Ariz. 390, ¶ 19, 983 P.2d at 764-65. Whiteco Metrocom says nothing about
whether it would be an abuse of discretion to order removal. See id. ¶¶ 15-18.
¶91 Clear Channel also argues the sign code has consistently provided for
alternative penalties and has never mandated removal. But the code also expressly allows
for removal of signs found to be in violation. Tucson Code §§ 3-101, 3-102. The trial court
did not commit an error of law by electing a remedy specifically provided for in the code.
¶92 Clear Channel contends that the 1980 Code mandated that the City provide
Clear Channel with the option of correcting the violation and that by imposing removal
under the “stricter penalties” of the current code, the trial court violated statutory and
“constitutional prohibitions against ex post facto laws.” This argument fails because, inter
alia, it misconstrues the law on nonconforming uses.14 As we explained above, when a sign
is in violation of the current code and does not have legal nonconforming status, it may be
regulated under the current code. See ¶¶ 24-25, supra. Assuming that Clear Channel is
correct that the 1980 Code required that a billboard owner be given an opportunity to
14
We also note the constitutional prohibition against ex post facto laws applies only
in the context of criminal offenses and penalties. See Martin v. Reinstein, 195 Ariz. 293,
¶ 19, 987 P.2d 779, 788 (App. 1999).
48
correct a violation, that fact is irrelevant here. The court ordered removal based on the fact
that the billboards are currently in violation of the current sign code and are not protected
by nonconforming status.
¶93 Finally, Clear Channel argues that there is a “mandate” in Arizona that
“abhors forfeiture” and cites Mason v. Hasso, 90 Ariz. 126, 367 P.2d 1 (1961), and Eisele
v. Kowal, 11 Ariz. App. 468, 465 P.2d 605 (1970), in support of this assertion. But neither
of these cases involves regulation of nonconforming uses. Mason addressed a private quiet
title action, 90 Ariz. at 127, 367 P.2d at 2, and Eisele is about forfeiture in the context of
a mortgage foreclosure, 11 Ariz. App. at 469, 465 P.2d at 606. We are not aware of any
Arizona case establishing the “mandate” suggested by Clear Channel. 15 Rather, as
previously discussed, see ¶ 24, supra, Arizona case law supports the “elimination of
nonconforming uses ‘within the limits of fairness and justice.’” Jones, 201 Ariz. 368, ¶ 11,
35 P.3d at 425, quoting Rotter, 169 Ariz. at 271, 818 P.2d at 706. Because the trial court’s
factual findings are not disputed and because we find no basis to conclude the court
committed an error of law, the court did not abuse its discretion in ordering removal of the
billboards associated with counts 102, 116, and 117.
Conclusion
15
The only case Clear Channel cites that does discuss the concept of forfeiture in the
context of a nonconforming use is a Florida case, 3M National Advertising Co. v. City of
Tampa Code Enforcement Board, 587 So. 2d 640 (Fla. Dist. Ct. App. 1991). Although 3M
National Advertising involves a similar fact pattern, its outcome in favor of restoring a
nonconforming use to status quo ante is predicated on case law that is inconsistent with
Arizona precedent and statutory law. Thus, to the extent the reasoning in 3M National
Advertising supports Clear Channel’s position, we decline to adopt it.
49
¶94 For the foregoing reasons, we affirm the judgment as to counts 36, 75, 80, 97,
102, 114, 116, and 117. We remand the case as to count 11 to permit the trial court to
further consider the relevant factors in light of our conclusions that the sign never attained
lawful, nonconforming use status and that Clear Channel failed to carry its burden to
establish the elements of equitable estoppel. We also remand as to count 61 to permit
further consideration in light of the factors necessary to apply estoppel against the City or,
in the alternative, for the court to exercise its discretion in fashioning a remedy.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
____________________________________
J. WILLIAM BRAMMER, JR., Judge
50