Opinion
1 CA-CV 22-0664
06-27-2023
SUN LAND MATERIALS, LLC, Plaintiff/Appellant, v. FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, Defendant/Appellee.
Porter Law Firm, Phoenix By Robert S. Porter Counsel for Plaintiff/Appellant Maricopa County Attorney's Office, Phoenix By Wayne J. Peck, Joseph J. Branco, Sean M. Moore Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Nos. CV2021-053336, LC2021-000345-001 The Honorable Daniel J. Kiley, Judge, Retired
Porter Law Firm, Phoenix By Robert S. Porter Counsel for Plaintiff/Appellant
Maricopa County Attorney's Office, Phoenix By Wayne J. Peck, Joseph J. Branco, Sean M. Moore Counsel for Defendant/Appellee
Vice Chief Judge David B. Gass delivered the decision of the court, in which Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.
MEMORANDUM DECISION
GASS, VICE CHIEF JUDGE
¶1 Sun Land Materials, L.L.C. (Sun Land) appeals the superior court's order affirming the final decision and order upholding $111,000 in fines from the Maricopa County Flood Control District Board of Hearing Review (the Board). We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Sun Land owns four parcels in a floodplain in Maricopa County, and in 2016, Sun Land renewed a permit allowing it to operate a mining business on two of the four parcels. To protect against erosion and flood risk, anyone who seeks to develop or alter land in a floodplain located within Maricopa County must obtain a permit from the Maricopa County Flood Control District (the District). A.R.S. §§ 48-3613.A, -3615.A; see Sabina v. Yavapai Cnty. Flood Control Dist., 196 Ariz. 166, 170 ¶ 18 (App. 1999).
I. The Permit Renewal
¶3 In April 2019, the District inspected Sun Land's operation and found Sun Land was not compliant with its permit because it excavated and graded land beyond the approved two parcels. The next month, Sun Land met with the District to discuss its permit. The District directed Sun Land to revise its permit to include the other two parcels it had developed. Sun Land did not. Instead, it continued to operate beyond its permit. About six months later, the District inspected the property and found Sun Land remained noncompliant. The District then directed Sun Land to submit an amended permit application by January 31, 2020 to become compliant. Sun Land again did not. Instead, it persisted in excavating and grading land beyond the approved two parcels.
¶4 Sun Land finally stopped excavating and grading when its permit expired on March 1, 2021. About a week later, Sun Land applied for a new permit. The District approved Sun Land's new permit application on June 29, 2021.
II. The Permit Violation
¶5 Two days after Sun Land submitted its new application, the District issued a notice of violation (NOV). The NOV said:
Activities performed on the subject property are in violation of the Floodplain Regulations for Maricopa County (FPRMC). These activities include excavation of soil material and grading not in compliance with [the 2016 permit]. .... On May 15, 2019 Sun Land Materials was put on notice via e-mail regarding the non-compliant conditions of your site noted at an April 17, 2019 site inspection. In subsequent discussions by e-mail and phone, Sun Land Materials was reminded to stop the activities and remedy the violations on the site. ....
You are hereby ordered to cease the excavation of soil material and grading within the floodplain on the parcel and to obtain a permit in order to remediate the site in accordance with a timeline agreed to by the Chief Engineer. This Notice of Violation order to cease and desist is effective on the date you received this notice.(Emphasis in original.)
¶6 In response to the NOV, Sun Land requested a hearing, at which Sun Land presented its case to a hearing officer. The hearing officer recommended the District impose a fine from March 10, 2021-the date of the NOV-until Sun Land came into compliance. After considering the hearing officer's recommendation, the District ordered Sun Land to "comply with the Regulations by obtaining a Floodplain Use Permit, cease operations and bring the property into compliance in accordance with the regulations." The District also ordered Sun Land pay $1,000 "per day from and after March 10, 2021, the date of the Notice of Violation[.]" The District stopped assessing the $1,000 per day fine against Sun Land once the District approved the new permit application-111 days after Sun Land received the NOV. The District sought to recover the $111,000 in accrued fines from Sun Land.
¶7 Sun Land appealed to the Board, which held two hearings and then upheld the District's order and fine. Sun Land then appealed to the superior court, which affirmed the Board. See A.R.S. § 12-910.A.
¶8 This court has jurisdiction over Sun Land's timely appeal under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and -2101.A.1.
ANALYSIS
¶9 On appeal, Sun Land argues: (1) the District violated its due process rights because the NOV did not provide sufficient notice; and (2) the superior court erred by affirming the Board's order and fine because Sun Land stopped excavating and grading on March 1, 2021.
I. The District provided adequate notice and did not violate Sun Land's due process rights.
¶10 Sun Land argues the District violated its due process rights because the NOV did not specify the violation was for "maintenance" and "continued ownership" of the property while Sun Land acquired a permit.
¶11 This court reviews de novo alleged violations of due process. Wassef v. Ariz. State Bd. of Dental Examiners ex rel. Hugunin, 242 Ariz. 90, 93 ¶ 11 (App. 2017). Due process requires, among other things, notice and "a reasonable[,] definite statement of the charge or charges." See Application of Levine, 97 Ariz. 88, 91 (1964); cf. State ex rel. Purcell v. Super. Ct., 111 Ariz. 418, 419 (1975) (holding a criminal charge "sufficient if it clearly sets forth the offense in such a manner to enable a person of common understanding to know what is intended").
¶12 On appeal, Sun Land challenges the sufficiency of the notice. By contrast, at the superior court, Sun Land argued the Board violated its due process rights by affirming the District's order on grounds not included in that order. The District argues Sun Land waived the due process argument Sun Land raises on appeal because Sun Land did not raise it to the superior court. Though Sun Land did not raise the same due process argument before this court, we exercise our discretion to address the merits. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26 ¶ 13 (App. 2000) (explaining this court generally does not consider issues "raised for the first time on appeal"); Sobol v. Marsh, 212 Ariz. 301, 303 ¶ 8 (App. 2006) (noting waiver is a discretionary procedural, issue, not a jurisdictional issue).
¶13 The NOV explicitly directed Sun Land to get a new permit, saying in bold-face type, "You are hereby ordered . . . to obtain a permit in order to remediate the site ...." (Emphasis added.) And even before issuing the NOV, the District notified Sun Land of its noncompliance through inspections. On this record, the District provided a "reasonable[,] definite statement of the charge" against Sun Land and did not violate Sun Land's due process rights.
II. Substantial evidence supported the superior court's affirmation of the Board's final decision and order.
¶14 Sun Land argues no evidence supported the Board's order and fine because evidence showed Sun Land did not engage in "any activities, excavations or development after March 1, 2021." Even so, Sun Land admits it did not possess a valid permit to engage in mining operations on all four of its parcels until June 2021-111 days after receiving the NOV.
¶15 This court reviews de novo the superior court's decision affirming an administrative action and will not set aside an administrative action if substantial evidence supports it. A.R.S. § 12-910.F; JH2K I LLC v. Ariz. Dep't of Health Servs., 246 Ariz. 307, 309-10 ¶¶ 8-9 (App. 2019). And this court views the evidence in the light most favorable to upholding the administrative action. Id. at 310 ¶ 8.
¶16 As discussed above, to cure the violation, Sun Land needed to do two things: "cease the excavation of soil material and grading within the floodplain on the parcel" and "obtain a permit." The record shows Sun Land did not secure a permit covering all the land it excavated and graded until June 2021. And nothing in the record shows Sun Land attempted to abate its violation while the District considered Sun Land's new permit application. Substantial evidence, thus, supported the Board's decision to find Sun Land violated the regulations for 111 days between the NOV and new permit.
ATTORNEY FEES AND COSTS
¶17 Sun Land requests reasonable attorney fees and costs under A.R.S. §§ 12-348.A.2 and 48-3644.E. Because Sun Land is not the prevailing party, we decline its request. See A.R.S. §§ 12-348.A.2, 48-3644.E.
CONCLUSION
¶18 We affirm.