Opinion
2 CA-CV 2021-0130
02-23-2023
Amanda Root; Granville and Georgia Montgomery, a married couple; Charles Parrish; and Charles Parrish, on behalf of Robert Dreeszen, Plaintiffs/Appellants, v. City of Sierra Vista, Defendant/Appellee.
Institute for Justice By Paul V. Avelar, Tempe and John Wrench, Pro Hac Vice, Arlington, Virginia Counsel for Plaintiffs/Appellants Berke Law Firm PLLC, Phoenix By Lori V. Berke, Stacey F. Gottlieb, and Jody C. Corbett Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. CV202100078 The Honorable David Thorn, Judge
COUNSEL
Institute for Justice By Paul V. Avelar, Tempe and John Wrench, Pro Hac Vice, Arlington, Virginia Counsel for Plaintiffs/Appellants
Berke Law Firm PLLC, Phoenix By Lori V. Berke, Stacey F. Gottlieb, and Jody C. Corbett Counsel for Defendant/Appellee
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom concurred and from which Judge Sklar dissented.
MEMORANDUM DECISION
VÁSQUE Z, Chief Judge:
¶1 In this action for declaratory and injunctive relief, Amanda Root, Granville and Georgia Montgomery, Robert Dreeszen, and Charles Parrish (collectively, "Residents") appeal the trial court's dismissal of their complaint against the City of Sierra Vista, alleging the City's zoning restrictions violated their constitutional rights. The Arizona Supreme Court vacated our memorandum decision dismissing the appeal for lack of jurisdiction and remanded the matter to this court for reconsideration in light of its opinion in Mills v. Arizona Board of Technical Registration, 253 Ariz. 415 (2022). After further consideration, we affirm the trial court's dismissal.
Factual and Procedural Background
¶2 In July 2020, two of the Residents received notices from the City informing them that they were violating zoning restrictions for living in recreational vehicles (RVs) on land zoned "Manufactured Home Residence." The notices provided that if they did not remove the RVs from the properties within thirty days, they would be "subject to further enforcement action." In August 2020, the City stayed enforcement while it considered potentially amending the zoning restrictions to allow RVs. By February 2021, the effort to amend the City's zoning restrictions for RVs was unsuccessful, but the City agreed to suspend evictions until the COVID-19-related state of emergency ended.
¶3 That same month, the Residents sued the City, claiming the zoning restrictions deprived them of property without substantive or procedural due process, denied their right to equal privileges or immunities, and violated the separation of powers doctrine, all under the Arizona Constitution. The City filed a motion to dismiss, arguing the Residents lacked standing, their claims had no merit, and they had failed to submit a notice of claim. The trial court granted the City's motion to dismiss, determining that the Residents' claims were not ripe because "the City hasn't done anything . . . to harm them at this point." The court dismissed the case without prejudice, stating the Residents could "come back" and "try again" if the City began enforcement action. This appeal followed.
¶4 In our prior memorandum decision, we dismissed the appeal for lack of appellate jurisdiction because the challenged judgment was non-appealable. See Canyon Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, ¶ 14 (App. 2010). The Residents then filed a successful petition for review to the Arizona Supreme Court, which vacated our prior memorandum decision and directed us to reconsider this appeal in light of Mills, 253 Ariz. 415. We now turn to the merits of the Residents' claims.
In granting the Residents' petition for review, our supreme court suggested that we have jurisdiction under A.R.S. § 12-2101(A)(1). Notwithstanding the trial court's judgment containing finality language pursuant to Rule 54(c), Ariz. R. Civ. P., its substance was a non-final dismissal without prejudice. See Canyon Ambulatory Surgery Ctr., 225 Ariz. 414, ¶ 14; Dunn v. FastMed Urgent Care PC, 245 Ariz. 35, ¶ 9 (App. 2018) (even when trial court certified judgment under 54(c), "we generally do not have appellate jurisdiction when a case is dismissed without prejudice"). Under the circumstances, we assume without deciding we have appellate jurisdiction, and in the event our jurisdiction is lacking, we exercise our discretion and sua sponte accept special action jurisdiction. See Dabrowski v. Bartlett, 246 Ariz. 504, ¶ 15 (App. 2019) (appeals court sua sponte accepted special action jurisdiction of non-appealable order where "parties have fully briefed and argued the issues, the superior court has ruled on the claims, and the non-final issues would likely be raised on appeal after a final judgment"); Danielson v. Evans, 201 Ariz. 401, ¶ 35 (App. 2001) (court sua sponte accepting special action jurisdiction after determining appellate jurisdiction lacking).
Discussion
¶5 In Mills, our supreme court considered whether the doctrines of exhaustion of administrative remedies, standing, and ripeness bar the filing of a declaratory relief action raising constitutional challenges to certain statutes governing the Arizona Board of Technical Registration. 253 Ariz. 415, ¶¶ 1-2. The controversy in that case arose from a dispute between Mills, an engineer, and the Board, about whether Mills was required to register with the Board to perform his work. Id. ¶ 1. After receiving a customer complaint, the Board investigated and determined Mills was violating A.R.S. §§ 32-141 and 32-145, which require those engaging in engineering to register with the Board. Id. ¶ 3.
¶6 The Board offered, and Mills refused to sign, two consent agreements requiring him to stop work, agree he had violated the law, and pay a fine. Id. ¶¶ 4-5. Mills then filed a complaint in the trial court seeking declaratory and injunctive relief. Id. ¶ 7. On the Board's motion, the court dismissed the complaint for lack of subject matter jurisdiction based on Mills's failure to exhaust his administrative remedies, lack of standing, and ripeness. Id. ¶ 8. The court of appeals upheld the dismissal. Id. However, the supreme court reversed, concluding that the trial court erred in dismissing Mills's complaint because he did not have a "prescribed administrative remedy to pursue by which to raise his constitutional claims." Id. ¶ 22. It further concluded that three of his four claims were justiciable because they involved an actual controversy that did not require him to "await prosecution before bringing [his] declaratory judgment complaint." Id. ¶¶ 29-30.
¶7 In this case, the trial court dismissed the Residents' complaint for essentially the same reason as the trial court in Mills. But there is a notable difference between this case and Mills-unlike Mills, the Residents have access to a statutorily prescribed administrative remedy. See A.R.S. §§ 9-462(A)(1), 9-462.06; City of Sierra Vista, Ariz., Dev. Code §§ 151.30.003, 151.30.008, 151.30.012, 151.30.015 ("Dev. Code"). When a statute establishes an administrative review process, judicial review is not available until the administrative process has run its course. Minor v. Cochise County, 125 Ariz. 170, 172 (1980). Specifically in the zoning context, "trial courts generally lack jurisdiction to review challenges to a zoning administrator's decision that have not been appealed to the board of adjustment." Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, ¶ 14 (2013); see § 9-462.06(G). Moreover, the administrative process must be scrupulously followed when the administrative agency has the authority to grant the proper remedies. Mills, 253 Ariz. 415, ¶ 14. That did not happen here.
¶8 Our dissenting colleague maintains the City has waived the defense of failure to exhaust administrative remedies because it did not expressly raise it in its motion to dismiss below. We disagree. The defense most certainly is waived if it is raised after "the trial court ha[s] already reached a decision on the merits." Medina v. Ariz. Dept of Transp., 185 Ariz. 414, 418 (App. 1995); cf. Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, ¶ 16 (2021) (suggesting affirmative defenses need not be raised in motions to dismiss to be preserved on appeal). But "the failure to raise an affirmative defense by motion will not result in a waiver as long as it is interposed in the answer." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1277 (4th ed. 2022). Here, the Residents' claims were dismissed before the City filed its answer.
¶9 Even in those situations where a defense has not been expressly raised, we consider to what extent the trial court had the "opportunity to address all issues on their merits." Cont'l Lighting & Contracting, Inc. v. Premier Grading & Util, LLC, 227 Ariz. 382, ¶ 12 (App. 2011). In Continental Lighting & Contracting, the defendant raised a legal theory in response to the other parties' cross-motions for summary judgment. Id. ¶ 13. Neither opposing party responded to the merits of that argument, nor did the court address it in its ruling on the summary judgment motions. Id. Nevertheless, we concluded the defendant had sufficiently preserved the argument for appeal because it asked the court to clarify whether it had refused to consider its argument or whether it had rejected it. Id. ¶¶ 13-14. This gave the court an "opportunity to rule on the legal theory . . . and [it] apparently did so." Id. ¶ 14.
¶10 Here, the City argued both in its motion to dismiss and at the hearing that the Residents' claims were "premature." See In re Est. of Stewart, 230 Ariz. 480, ¶ 12 (App. 2012) (ripeness principle "prevents a court from rendering a premature judgment" (quoting Winkle v. City of Tucson, 190 Ariz. 413, 415 (1997)); U S W. Commc'ns, Inc. v. Ariz. Corp. Comm'n, 197 Ariz. 16, ¶ 9 (App. 1999) ("If a party has not exhausted its administrative remedies, the controversy is not ripe for review . . . ."); see also City of Phoenix v. Fields, 219 Ariz. 568, ¶ 28 (2009) (supreme court assumed without deciding that answer generally stating plaintiffs had "failed to exhaust their administrative, statutory, and/or contractual remedies" was sufficient to preserve notice of claim defense). But see Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, n.3 (App. 2011) ("The trial court cannot be expected to glean a party's arguments from a review of the evidence; the party must articulate its legal arguments.").
¶11 Moreover, the trial court expressly raised the issue at the hearing, and the Residents addressed it directly. Notably, although the Residents pointed out that the City had not argued the failure to exhaust administrative remedies in its brief, they did not object or request additional time to respond when the court raised it. Thus, neither party here claimed surprise and the parties and the court all had an opportunity to address the issue on its merits. See Cont'l Lighting & Contracting, Inc., 227 Ariz. 382, ¶ 12. In any event, we will affirm the trial court's decision if it was legally correct for any reason. Spence v. Bacal, 243 Ariz. 504, ¶ 3 (App. 2018). Furthermore, appellate review is appropriate here because applying this legal principle provides an undisputed basis to resolve this appeal. Cf. State v. Payne, 223 Ariz. 555, n.8 (App. 2009).
The dissent concludes that this rule is inapplicable here because the "affirmance would require reference to facts not properly in the record." But, as discussed, the trial court raised the issue at the hearing and the court and the Residents addressed the merits of the exhaustion doctrine. Thus, we do so as well.
¶12 The Residents' first and second causes of action allege that as applied to them, the prohibitions of RVs and Mobile Homes under Code §§ 151.22.011 and 151.22.006 are unconstitutional. These constitutional issues are "inextricably intertwined" with the Residents' argument that their RVs should be allowed to remain on their current lots. Mills, 253 Ariz. 415, ¶ 19 (quoting Moulton v. Napolitano, 205 Ariz. 506, ¶ 16 (App. 2003)). Therefore, because the Residents only challenge the constitutionality of the Code as applied to them and the legislature has provided a comprehensive administrative process to raise these claims, the Residents are required to exhaust their available administrative remedies before seeking relief in the trial court. See id.; see also Moulton, 205 Ariz. 506, ¶ 20 ("We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation." (quoting Est. of Bohn v. Waddell, 174 Ariz. 239, 249 (App. 1992))).
By contrast, facial constitutional challenges to an ordinance generally would not require the exhaustion of administrative remedies because "[i]f the subject ordinance is void, the [plaintiffs] should not be compelled to inferentially admit its binding force and effect by seeking administrative relief." Manning v. Reilly, 2 Ariz.App. 310, 312 (1965).
¶13 In other words, the Residents' constitutional challenges are not "beyond the scope of [the] administrative body's powers and authority." Manning v. Reilly, 2 Ariz. App. 310, 312 (1965); see also Mills, 253 Ariz. 415, ¶ 18. Indeed, the legislature has given the City broad authority to enact, see A.R.S. § 9-462.01, and enforce, see A.R.S. § 9-462.05, provisions of the Code, including the authority to decide the types of structures permitted in certain areas, subject to certain constraints, see § 9-462.01. The "responsibility for enforcement" of the Code rests with the zoning administrator, § 9-462.05(C), whose decision, if appealed, must be heard by the board of adjustment, see § 9-462.06(C), (D), (G), and a decision of the board may be challenged by special action in the superior court, § 9-462.06(K). This comprehensive administrative process was entirely unavailable in Mills.
¶14 Unlike in this case, Mills in fact had no "mechanism" by which he could compel the Board to issue a final decision. Mills, 253 Ariz. 415, ¶ 15. Our supreme court noted that this lack of an "administrative path" would leave Mills in "legal limbo" and unable to resolve his constitutional claims. Id. ¶ 16. Because the statutes governing the Board did not "either require formal proceedings if informal efforts to resolve issues are unsuccessful or permit the professional to initiate such proceedings," id. ¶ 17, the only remedy available to Mills was "to resolve [his] constitutional claims through a declaratory judgment action," id. ¶ 16.
¶15 By contrast, the Residents' complaint alleges undue burden and hardship, consistent with the City's ordinance-"owing to special conditions, a literal enforcement of the provisions of [the Development] Code would result in unnecessary hardship." Under the City's ordinance, seeking a variance would be a proper remedy for such a hardship. Dev. Code § 151.30.005. Simply stated, there is an administrative path that provides the Residents with the ability to resolve their as-applied constitutional claims. And in Manning, we noted that "[t]he remedy for attacking the [constitutional] validity of a zoning ordinance is distinguishable from the remedy of securing a variance from a zoning board of adjustment," with the latter requiring the exhaustion of administrative remedies. 2 Ariz.App. at 312; see also Canyon del Rio Invs., L.L.C. v. City of Flagstaff, 227 Ariz. 336, ¶ 1 (App. 2011) (holding "an as-applied challenge to a zoning decision must be predicated on a final decision by the relevant government body"). The Residents never sought a variance.
¶16 The Residents appear to allege in their complaint that it would be futile to seek a variance because the City's attorney stated that "a lot owner cannot be granted a variance that would change the use permitted within the zoning district." The City responds that this misinterprets the "quoted legal conclusion," which instead explains a hearing officer's limitations under the Code and "does not constitute denial of a variance." See Dev. Code § 151.30.004 ("The Hearing Officer may not make any changes in the uses permitted in any district, nor make any changes in the terms of this Code provided the restriction in this paragraph shall not affect the authority to grant variances pursuant to this article."). Moreover, given the record before us, any argument that the Residents would be unsuccessful in seeking a variance is sheer speculation, which we will not engage in. See Cullen v. Auto-Owners Ins., 218 Ariz. 417, ¶ 14 (2008). Although our dissenting colleague agrees it is unclear who would prevail on this issue given the record before us, he argues this "uncertainty militates in favor of allowing both sides to develop their arguments" before the trial court. We, however, reach a different conclusion.
¶17 As previously discussed, the Residents did not pursue available administrative remedies and any uncertainty can and should be resolved by that process. See Moulton, 205 Ariz. 506, ¶ 24 (administrative action is not futile "if the agency has the power to provide some relief"). Instead, they sought relief from the trial court. Although an aggrieved party unsatisfied by an agency's action may seek redress in the court system, "[t]he plaintiff may not choose its administrative remedy through the framing of its own complaint" because "[i]f that were possible, the purpose of the exhaustion doctrine would be thwarted." Id. ¶ 21 (quoting Savoy Laundry, Inc. v. Town of Stratford, 630 A.2d 159, 163 (Conn. App. Ct. 1993)). Furthermore, a party's "preference for a particular remedy . . . [does not] determine[] whether the remedy before the agency is adequate." Id. (quoting Hunt v. Prior, 673 A.2d 514, 522 (Conn. 1996)). And whether a party believes it would be successful in obtaining its requested relief has no bearing on whether an administrative action is deemed futile. See Save Our Valley Ass'n v. Ariz. Corp. Comm'n, 216 Ariz. 216, ¶ 32 (App. 2007) (party cannot "ignore a statutory procedure simply because it believes a board or commission will not change its prior decision"); see also Minor, 125 Ariz. at 173 (rejecting futility argument when there was "nothing in the record which would indicate that the [administrative board] would not have seriously considered appellants' position"). Therefore, the suggestion that the Residents were not required to exhaust their administrative remedies because it may have been futile is without merit.
¶18 Moreover, a variance is only one administrative remedy the Residents could seek. Again, unlike in Mills, the Residents also have the ability to directly bring their constitutional claims before a hearing officer by challenging, for example, "any order, requirement or decision made by the Director of Community Development" in enforcing the Code. See Dev. Code § 151.30.003(A). Therefore, because "there is a prescribed remedy that, if pursued, would enable the [Residents] to raise any constitutional claims in a subsequent appeal to the superior court," the trial court properly dismissed the Residents' first and second causes of action. Mills, 253 Ariz. 415, ¶ 17.
¶19 In their third cause of action, the Residents allege that, as applied to them, the July 2020 notices violate procedural due process by ordering them to "remove and relocate their homes within 30 days" without offering an opportunity to be heard before having to comply. We disagree. Under § 9-462.06(E), an appeal to the board of adjustment presumptively stays all enforcement proceedings unless the zoning administrator can certify that "a stay would cause imminent peril to life or property." The Residents further allege that the notices constitute an unconstitutional delegation of judicial power to the Department of Community Development. The notices, however, do not force the Residents from their homes but merely warn of potential "further enforcement action" after the thirty-day remedial period expires. The Residents are correct that the City's Code does not afford them a right to appeal the notices. However, this statement demonstrates that they simply do not understand the nature and force of the notices. The notices given to the Residents were not an "order, requirement or decision made by the Director of Community Development . . . in the enforcement of the Code." Dev. Code § 151.30.003(A). Nonetheless, any claim concerning the administrative process is speculative at this point because the City has not initiated an enforcement action. See Mills, 253 Ariz. 415, ¶ 31. In sum, the Residents' claims are unripe and were properly dismissed.
Disposition
¶20 For the foregoing reasons, we affirm the trial court's dismissal.
SKLAR, Judge, dissenting:
¶21 The majority persuasively distinguishes the facial constitutional challenge in Mills v. Arizona Board of Technical Registration, 253 Ariz. 415 (2022), with the as-applied challenge here. If the record were more developed, I might agree that this distinction supports dismissing the case for failure to exhaust administrative remedies. But not on this record. The City did not raise exhaustion-an affirmative defense-in its motion to dismiss. I do not believe that we should order the case dismissed on the basis of an unasserted affirmative defense. I respectfully dissent.
A. The majority decision is inconsistent with two rules concerning affirmative defenses
¶22 Since this court decided Medina v. Arizona Department of Transportation, 185 Ariz. 414, 418 (App. 1995), Arizona has treated failure to exhaust as an affirmative defense. Our supreme court reaffirmed this rule in Mills. 253 Ariz. 415, ¶ 12.
¶23 As a result, failure to exhaust is waived unless timely asserted by the defendant. In re Est. of Cortez, 226 Ariz. 207, ¶ 6 (App. 2010) ("It is well established that any defense not set forth in an answer or pre-answer motion to dismiss is waived."). As the Mills court explained, "[W]hen the doctrine is properly raised as an affirmative defense, the court will refuse to adjudicate the case for the complainant's failure to satisfy a procedural prerequisite." 253 Ariz. 415, ¶ 12.
¶24 In its motion to dismiss, the City did not assert an exhaustion defense. Rather, it made four principal arguments: (1) the Residents lacked standing because they did not own or otherwise lacked a proper interest in the properties; (2) the action was premature; (3) the Residents failed to assert cognizable constitutional claims; and (4) the Residents failed to submit a notice of claim. I conclude that because exhaustion is not among these arguments, the City waived it for purposes of its motion to dismiss. Of course, if the litigation were to continue, the City would remain free to assert that defense in its answer. It would then be obligated to prove the defense's applicability. The Residents would likewise be able to oppose the City's arguments.
¶25 The majority acknowledges that the City did not explicitly raise exhaustion. But it nevertheless interprets the City's prematurity argument as implicating that defense. I disagree. The prematurity argument addressed the Residents' allegations that the City had violated their due process rights by issuing notices of violation. The City argued that the due process claim was premature because the notices had no legal effect. The notices merely advised the Residents that the City might initiate enforcement proceedings through a judicial process. Nowhere in this argument did the City suggest that the Residents were required to seek a variance or complete some other administrative process. I therefore do not believe this argument can be read to concern exhaustion of administrative remedies.
¶26 Because failure to exhaust is an affirmative defense, it also cannot form the basis for granting a motion to dismiss unless the facts establishing the defense appear from the complaint. Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, ¶ 16 (2021). This is because plaintiffs have no obligation to affirmatively plead the negative of an affirmative defense. Id. ¶¶ 15-16. The complaint here is largely silent on exhaustion and the possibility of a variance. At best, it references the issue once, by mentioning a letter from the City's attorney purportedly stating that a variance is not possible. This language does not support an exhaustion defense. If anything, it bolsters the argument-which I discuss below-that attempts to exhaust administrative remedies would be futile because the City lacks the power to grant a variance.
B. The majority precludes the Residents from demonstrating that an exception to the exhaustion defense applies
¶27 In ordering that the case be dismissed on an unasserted affirmative defense, the majority also prevents the Residents from arguing that an exception to the exhaustion doctrine applies. Our law recognizes several such exceptions. See Est. of Bohn v. Waddell, 174 Ariz. 239, 248 (App. 1992) (listing exceptions). Most relevant here is that exhaustion is not required when it would be futile. Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, ¶ 16 (2013). Futility can exist when the administrative body lacks the power to provide relief. Cf. Moulton v. Napolitano, 205 Ariz. 506, ¶ 24 (App. 2003) ("[T]he administrative action cannot be deemed futile if the agency has the power to provide some relief.").
¶28 If given the opportunity, the Residents might be able to show futility. As the City has acknowledged, the Code prohibits a hearing officer from granting a variance that changes a non-permitted use to a permitted use. City of Sierra Vista, Ariz., Dev. Code § 151.30.004. This same limitation applies to the hearing officer's more general power, which the majority cites, to review decisions of the Director of Community Development. Dev. Code §§ 151.30.003 through 151.30.004. It also applies to the Board of Adjustment, which would hear any appeal concerning a variance or the hearing officer's review power. Dev. Code §§ 151.30.011 through 151.30.012.
¶29 This limitation is critical because RVs are not permitted in an MHR subdivision. See Dev. Code §§ 151.22.006, 151.22.011. Thus, the Residents might be able to successfully argue that the hearing officer and Board of Adjustment lack the power to allow their RVs to remain on the parcels. That might be sufficient to render exhaustion attempts futile.
¶30 Of course, other facts may be relevant to the futility argument. And the City may have an answer as to why a variance application would not be futile. Its Answering Brief asserts such an argument concerning Ms. Root. It is unclear who would prevail. I agree with the majority that predicting the outcome of such litigation would require "sheer speculation." But that uncertainty militates in favor of allowing both sides to develop their arguments, not dismissing the case and precluding them.
C. The procedural doctrines relied upon by the majority do not support the outcome here
¶31 The majority also relies on two procedural rules to support affirming the dismissal. I do not believe that either is applicable. First, the majority cites the rule that we can affirm a trial court if it was legally correct for any reason. But this rule does not apply when affirmance would require reference to facts not properly in the record. State v. Dean, 241 Ariz. 387, ¶ 25 (App. 2017). Here, there is no record on futility. Nor is there a record on whether exhaustion is even required, given that the City has not asserted an exhaustion defense. The majority's reliance on this rule is therefore misplaced.
¶32 Second, the majority points to the rule that we may consider the extent to which the trial court had the opportunity to address the issues on their merits. It notes that the trial court questioned the Residents during oral argument about whether they had exhausted their administrative remedies. I agree that this questioning did provide the Residents with some opportunity to address the issue.
¶33 But this opportunity was limited. The trial court asked a single question about exhaustion, to which the Residents' counsel responded, "[Administrative exhaustion is not an issue here for four reasons." Before counsel could finish the second reason, the discussion turned to other issues. The Residents' opportunity to address the issue was therefore much more limited than in Continental Lighting & Contracting, Inc., 227 Ariz. 382 (App. 2011), upon which the majority relies. There, the new legal theory was the subject of full briefing on a motion for clarification. Cont'l Lighting, 227 Ariz. 382, ¶¶ 13-14. In that case, the parties had a more extensive opportunity to address the new issue than the Residents did here.
D. The trial court also erred in dismissing the case because no enforcement action had begun
¶34 As I do not think the exhaustion issue should dispose of this case, I also find it appropriate to briefly address the merits of the trial court's dismissal. Review of that decision is de novo, as it concerns a question of ripeness. In re Est. of Stewart, 230 Ariz. 480, ¶ 11 (App. 2012).
¶35 The trial court premised its decision on the prematurity argument described above. I believe this decision was inconsistent with the Arizona Uniform Declaratory Judgment Act (UDJA), A.R.S. §§ 12-1831 through 12-1846. That act provides, "Any person . . . whose rights, status or other legal relations are affected by a statute [or] municipal ordinance . . . may have determined any question of construction or validity arising under the . . . statute [or] ordinance . . . and obtain a declaration of rights, status or other legal relations thereunder." § 12-1832.
¶36 For a UDJA action to be ripe, there must be "a present existing controversy which permits the court to adjudicate any present rights." Mills, 253 Ariz. 415, ¶ 25 (quoting Moore v. Bolin, 70 Ariz. 354, 358 (1950)). The plaintiff need not have suffered actual injury. Id. ¶ 29. But it must allege more than "an intent to do certain things in the future all of which are dependent upon future events and contingencies within control of the [plaintiff]." Id. ¶ 25 (alteration in Mills) (quoting Moore v. Bolin, 70 Ariz. 354, 358 (1950)).
¶37 Applying these standards, I conclude that this case is ripe. In the notices of violation, the City threatened the Residents with an enforcement action. According to the Residents' complaint, that action would violate their constitutional rights, leave them homeless, and cause them economic hardship. A controversy concerning these rights arose when the City sent the notices of violation. And whether the City brings an enforcement action is within control of the City, not the Residents. I therefore conclude that the trial court erred in dismissing the complaint for lack of an actual enforcement action.
E. Conclusion
¶38 For the foregoing reasons, I would reverse the trial court's decision and remand for further litigation.