City of Tucson v. Clear Channel Outdoor, Inc.

105 P.3d 1163, 209 Ariz. 544, 445 Ariz. Adv. Rep. 21, 2005 Ariz. LEXIS 14
CourtArizona Supreme Court
DecidedFebruary 10, 2005
DocketCV-04-0033-PR
StatusPublished
Cited by88 cases

This text of 105 P.3d 1163 (City of Tucson v. Clear Channel Outdoor, Inc.) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Tucson v. Clear Channel Outdoor, Inc., 105 P.3d 1163, 209 Ariz. 544, 445 Ariz. Adv. Rep. 21, 2005 Ariz. LEXIS 14 (Ark. 2005).

Opinions

OPINION

HURWITZ, Justice.

¶ 1 This case requires us to determine the effect of Arizona Revised Statutes (“A.R.S.”) § 9-462.02(C) (Supp.2004) on numerous zoning enforcement actions filed by the City of Tucson (“the City”) against Clear Channel Outdoor, Inc. (“Clear Channel”). We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution, and A.R.S. § 12-120.24 (2003).

I.

¶ 2 This case comes to us as a result of almost twenty years of legal skirmishing between the City and owners of advertising billboards. In 1985, the City adopted an ordinance regulating the size, location, and height of various signs, including billboards. In 1986, Clear Channel’s predecessor, Whiteco Metrocom, Inc.,1 sued the City in federal court, alleging that the ordinance violated Arizona and federal law. The district court found against Whiteco. The Ninth Circuit consolidated Whiteco’s appeal with a similar claim filed by Outdoor Systems, Inc., against the City of Mesa. See Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 608-09 (9th Cir.1993). The Ninth Circuit then certified a question to this Court, asking whether the Tucson and Mesa codes violated the Urban Environment Management Act, A.R.S. §§ 9-461 and -462 (1990). We held that they did not. Outdoor Systems, Inc. v. City of Mesa, 169 Ariz. 301, 819 P.2d 44 (1991). The Ninth Circuit then upheld Tucson’s sign code against all remaining challenges. Outdoor Systems, 997 F.2d at 620.

¶ 3 In 1994, the legislature enacted A.R.S. § 9-462.02 (1994). 1994 Ariz. Sess. Laws, ch. 111, § 1. This statute effectively “grandfathered” existing non-conforming billboards by prohibiting municipalities from requiring their owners to waive the right to continue their use as a precondition for the issuance of a permit or other municipal approvals. A.R.S. § 9-462.02(B). The statute also gave municipalities the authority to condemn nonconforming billboards, A.R.S. § 9-462.02(A), or to pay for relocation, A.R.S. § 9-462.02(B).

¶ 4 Before § 9-462.02 became effective, the City sued Whiteco, seeking the removal of some non-conforming billboards. In City of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, 983 P.2d 759 (App.1999), the court of appeals held that § 9-462.02 applied retroactively to prohibit the City from enforcing its ordinance against some, but not all, of the billboards in question.

¶ 5 In 2000, the legislature enacted A.R.S. § 9-462.02(C), 2000 Ariz. Sess. Laws, ch. 34, which became effective on July 18, 2000. Section 9-462.02(C) provides:

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. Such an action shall initially be filed with a court having jurisdiction to impose all penalties sought by the action and that jurisdiction is necessary for effective filing. Only the superior court has jurisdiction to order removal, abatement, reconfiguration or relocation of an outdoor advertising use or structure. Notwith[537]*537standing any other law, a municipality shall not consider each day that an outdoor advertising use or structure is illegally erected, constructed, reconstructed, altered or maintained as a separate offense unless the violation constitutes an immediate threat to the health and safety of the general public.

¶ 6 On July 17, 2000, one day before the effective date of A.R.S. § 9-462.02(C), the City filed a 122-count complaint in superior court, each count challenging a separate nonconforming Clear Channel billboard. On July 17, 2001, one day less than a year after the effective date of § 9-462.02(C), the City filed a second amended complaint, adding fifty-one counts concerning other billboards. The superior court found that eighty-nine of the 173 counts involved violations that the City had discovered more than two years prior to filing. The superior court dismissed these eighty-nine counts, holding that the new two-year statute of limitations in § 9-462.02(C) barred the claims.2

¶ 7 The court of appeals affirmed. City of Tucson v. Clear Channel Outdoor, Inc., 206 Ariz. 335, 78 P.3d 1056 (App.2003). Relying on A.R.S. § 12-505(B) (2003), the court held that § 9-462.02(C) applied retroactively and that the new two-year limitations period ran from the time the City first discovered the zoning violations. Id. at 338 ¶ 8, 78 P.3d at 1059.

¶ 8 We granted the City’s petition for review to address the retroactivity issues in light of A.R.S. § 12-505, which governs the effect of laws changing statutes of limitations.3 Because this case involves a matter of statutory interpretation, we apply a de novo standard of review. Canon School Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994).

II.

¶ 9 The court of appeals found no constitutional infirmity in applying A.R.S. § 9-462.02(C) retroactively to bar the City’s existing enforcement claims. Clear Channel, 206 Ariz. at 337-38 ¶ 7, 78 P.3d at 1058-59. The court relied on its prior opinion in Whi-teco, which held that a municipality’s power to zone and to enforce its zoning laws is a purely statutory creation, and “[ejvery right or remedy created solely by a modified statute disappears or falls with the modified statute unless carried to final judgment before the repeal or modification.” 194 Ariz. at 394 ¶¶ 9, 12, 983 P.2d at 763 (citations omitted). Neither party challenges that ruling before this Court. We thus start from the premise that the legislature could have enacted a statute stripping all enforcement power from the City with respect to violations of the sign code occurring before the effective date of the statute. It necessarily follows that the legislature could have barred enforcement actions for violations discovered more than two years before the date of filing suit.

¶ 10 But, while there is no dispute about the legislature’s constitutional power to enact a statute barring enforcement actions filed before the statute’s effective date, the parties disagree vehemently about whether § 9-462.02(C) is in fact such a statute.

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Cite This Page — Counsel Stack

Bluebook (online)
105 P.3d 1163, 209 Ariz. 544, 445 Ariz. Adv. Rep. 21, 2005 Ariz. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-tucson-v-clear-channel-outdoor-inc-ariz-2005.