Kempton v. City of Safford

683 P.2d 338, 140 Ariz. 539, 1984 Ariz. App. LEXIS 393
CourtCourt of Appeals of Arizona
DecidedFebruary 1, 1984
DocketNo. 2 CA-CIV 4884
StatusPublished
Cited by3 cases

This text of 683 P.2d 338 (Kempton v. City of Safford) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kempton v. City of Safford, 683 P.2d 338, 140 Ariz. 539, 1984 Ariz. App. LEXIS 393 (Ark. Ct. App. 1984).

Opinion

OPINION

BIRDSALL, Chief Judge.

The appellees are taxpayers owning and residing on property located within the boundaries of an area claimed to have been annexed to the City of Safford by Ordinance # 264. They were successful in the trial court, the court declaring the ordinance invalid and of no force and effect.

On appeal the City of Safford, appellant, presents the following legal issues:

1) Did Thatcher Ordinance # 45 and Saf-ford Ordinance #261, declared null and void by the Court, prevent Safford Ordinance # 264 from being effective?

2) Did Safford Ordinance # 263, which was rescinded, never published, but recorded by mistake, more than nine (9) months after adoption, prevent Ordinance # 264 from being effective?

3) Is the publication of the City of Saf-ford Ordinance # 264 three (3) times, instead of four (4) fatal?

We reverse.

It is necessary to review a very confusing history in order to put the trial court’s ruling in proper perspective.

In 1972 this court decided City of Saf-ford v. Town of Thatcher, 17 Ariz.App. 25, 495 P.2d 150 (1972). That controversy between the two neighboring municipalities involved an annexation of a strip of land by the town of Thatcher. The appellate opinion affirmed the trial court judgment upholding the ordinance.

In 1980 the 34th Legislature, Second Regular Session, enacted Chapter 226 amending A.R.S. § 9-471. This legislation prescribed limitations on the annexation of strips of land. The non-emergency legislation did not become effective until July 31, 1980. Apparently because of the new legislation and to avoid its impact, the City of Safford on June 4, 1980, adopted Ordinance # 261 which undertook a strip annexation surrounding miles of territory with a three-foot strip which also surrounded part of the town of Thatcher. The town of Thatcher countered that action by passage on June 17 of its Ordinance # 45 purporting to annex a strip inside Safford’s new strip, thus cutting Safford off from the territory it was attempting to annex. Thatcher was able to do this because the annexation, under Ordinance # 261, had overlapped the previous strip annexation by Thatcher, thus enabling Thatcher to have contiguous land for their new annexation. See our definition of contiguous in City of Safford v. Town of Thatcher, supra.

As a result of all this legal skirmishing, the two municipalities got together and agreed upon permanent annexation boundaries. The agreement was approved by the governing bodies of both and signed June 30, 1980, one month before the effective date of the new legislation. This agreement provided that ordinances #261 and # 45 would be “voided”. However, on that same date, June 30, at a special noon meeting, Safford had adopted another annexation ordinance, # 263, which intersected and crossed over the three-foot strip described in # 261 and also intersected, crossed over and included lands described in Thatcher’s # 45. After the agreement between the two, the Safford Common Council adopted a motion to rescind # 263 and had the second and final reading of new Ordinance # 264. That ordinance, which complied with the agreement between Safford and Thatcher, was first read and adopted on June 30 at the evening meeting when the agreement was approved. It is this last ordinance, # 264, which the trial court held invalid.

By mistake, rescinded Ordinance # 263 was subsequently recorded on April 3, 1981. By stipulation Ordinances # 261 and # 45 were declared null and void and of no effect in another action.

The appellees were not parties to the June 30 agreement between the two munic[541]*541ipalities. Nothing suggests they ever had anything to do with all of the legal man-uevering we have described. Pursuant to Ordinance # 264 their lands described therein would be annexed by the City of Safford. They are opposed to such annexation.

We do not have the benefit of the trial court’s reasoning. The appellees contended in their petitions1 that the property sought to be annexed by # 264 was not contiguous to the City of Safford because the property was withdrawn from annexation pursuant to former A.R.S. § 9-471(B) which provides:

“Upon the first reading of the ordinance annexing the territory, the territory shall be withdrawn from further annexation by any other city or town, for a period of sixty-one days from the date of such first reading.”

The appelles posited that the earlier annexation ordinances, # 261 and # 45 precluded the adoption of # 264 for the 61-day period.

Assuming, arguendo, that the appellees may question the validity of the ordinance for this reason, a matter we discuss later in this opinion, we do not agree that ordinance # 264 is invalid for that reason.

It is undisputed that the two municipalities intended that # 264 was to be the final result of all their annexation efforts. A municipal corporation which has the power to enact ordinances has by implication the power to rescind ordinances. E. McQuillen, Municipal Corporation, Vol. 6, Sec. 21.10 (3rd Ed.1980); C. Rhyne, The Law of Local Government Operations, Sec. 8.8 (1980). Both these authorities recognize that vested rights may not be impaired by the repeal of an ordinance, but no such vested rights are involved here. The appellees acquired no rights under the ordinances which were declared void or the ordinance which was rescinded. The only effect of the rescission of these ordinances was to nullify those annexation proeeed-ings. The Arizona annexation statute, A.R.S. § 9-471(A), provides:

“A. A city or town may extend and increase its corporate limits in the following manner:
1. On presentation of a petition in writing signed by the owners of not less than one half in value of the real and personal property as would be subject to taxation by the city or town in the event of annexation, in any territory contiguous to the city or town, as shown by the last assessment of the property, and not embraced within the city or town limits, the governing body of the city or town may, by ordinance, annex the territory to such city or town.
2. The petition submitted to the owners of property for their signature shall set forth a description of all the exterior boundaries of the entire area proposed to be annexed to the city or town. The petition shall have attached to it at all times an accurate map of the territory desired to be annexed, and no additions or alterations increasing the territory sought to be annexed shall be made after the petition to which it is attached has been signed by any owner of property in such territory, but a reduction in the territory sought to be annexed may be made.” (emphasis supplied)

Thus a decision to annex is discretionary with the governing body. See also City of Tucson v. Garrett, 77 Ariz. 73, 267 P.2d 717 (1954); State ex rel. DeConcini v. City of Phoenix, 74 Ariz.

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Bluebook (online)
683 P.2d 338, 140 Ariz. 539, 1984 Ariz. App. LEXIS 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kempton-v-city-of-safford-arizctapp-1984.