OPINION
HAIRE, Chief Judge,
Division 1.
On this appeal we are required to determine whether the appellant County Board of Supervisors had the authority to require proof of the
availability
of domestic water as a condition to the approval of appellee’s proposed subdivision plat. The trial judge held that it did not have such authority, and we agree.
On September 13, 1972, the appellant Board of Supervisors of Yavapai County, acting on the recommendation of its County Planning and Zoning Commission, denied approval of a proposed subdivision plat of the appellee, Glenarm Land Company, Inc. From the action of the Board of Supervisors, the Glenarm Land Company sought review in the Superior Court of Yavapai County by way of a petition for special action. In the special action petition Glenarm asked the Court to order the Board of Supervisors to approve its subdivision plat. The trial judge found that Glenarm had complied with all the then existing requirements for a subdivision plat, and that the Board of Supervisors did not have authority to require a further proof from Glenarm of the future availability of water for the proposed subdivision. It therefore ordered the Board to approve Glenarm’s subdivision plats.
Initially, we note that there is no particular statutory provision for the review of an adverse decision of a County Board of Supervisors denying approval of a subdivision plat.
The provisions of the Administrative Review Act, A.R.S. § 12-901 et seq., would not be applicable inasmuch as the county is not an “agency” within the purview of that Act. As previously stated, Glenarm sought review in the Superior Court by way of a special action petition. Neither party questions the availability of that method of review, and we consider it appropriate.
See Rubi v. 49’er Country Club Estates, Inc.,
7 Ariz. App. 408, 440 P.2d 44 (1968);
City of Phoenix v. Superior Court, County of Maricopa,
110 Ariz. 155, 515 P.2d 1175 (1973).
In its special action petition, Glenarm advanced essentially two contentions:
(1) That the Board of Supervisors lacked authority to deny approval of a subdivision plat based upon its determination that sufficient water was not available to meet existing needs and those of the proposed subdivision; and
(2) That, assuming the existence of such authority, the Board acted in an arbitrary and capricious manner.
At the special action hearing, after taking evidence relating primarily to the introduction of the records and proceedings before the appellant Board and the Planning and Zoning Commission, the trial
judge ruled as a matter of law that the Board lacked the authority to require a showing of the existence of an adequate water supply.
On appeal, the appellants first contend that the trial judge erred in failing to grant a trial
de novo
in the special action proceeding. This contention might have some relevance if the trial judge had reached the merits of the availability of water question. However, such was not the case. As a preliminary legal question the trial judge decided that the Board did not have such authority and thus did not reach the merits. In view of our decision, we need not decide whether appellants would have been entitled to a trial
de novo
on the merits of the water availability question.
As an additional twist on the trial
de novo
questions, appellants appear to be contending that they should have been allowed to show other bases for the denial of the subdivision plat. We do not agree. A.R.S. § 11-806.01 C requires that:
“The ground of refusal or approval of any plat submitted, including citation of or reference to the rule or regulation violated by the plat, shall be stated upon the record of the board.”
The trial judge specifically found that the Board of Supervisors’ rejection of the application of appellee was based upon the question of availability of water for the proposed subdivision. The record fully supports this finding. To allow the Board to assert and present evidence on appeal relating to other previously unstated alleged deficiencies would be to entirely thwart the obvious intent of the statute. We hold that the trial judge did not err in restricting the special action proceeding to the ground of refusal stated by the Board in its records.
Turning now to a determination of whether the trial judge erred in his ruling that the Board lacked the authority to require a showing of an adequate water supply, we are not faced with the question of whether the Board of Supervisors could enact an ordinance dealing with the availability of water for residential purposes in the exercise of its powers pursuant to A. R.S. § 11-802. Our inquiry is much narrower. The question posed here is whether the Board can impose such a requirement as a pre-condition
to the approval of a subdivision plat.
The County’s power to approve or disapprove subdivision plats is found in A. R.S. § 11-806.01, and any power which it possesses in this regard is derived from that section.
While § 11-806.01 D, relating to the adoption of rules and regula
tions, is expressed in the permissive “may”, it is our opinion that the enactment of such rules and regulations by the county is a mandatory prerequisite to the exercise by it of its subdivision plat approval powers. We reach this conclusion by reason of the fact that subsection C of § 11-806.01 mandatorily requires that any ground of refusal include a “. . . reference to the rule or regulation violated by the plat. . a provision which the Board would find rather difficult to comply with in the absence of such rules and regulations.
A.R.S. § 11-806.01 D provides, in part, that the regulation shall “. include provisions as to the extent ... to which water utility mains, piping or other facilities shall be installed or provided for on the plat as a condition precedent to the approval of the final plat.” In our opinion this statutory provision does not grant to the county the authority to inquire into the availability of water, but even if we were to assume that it did grant such authority, the county has not brought to this Court’s attention any regulation or ordinance adopted by it setting standards for the exercise of that authority.
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OPINION
HAIRE, Chief Judge,
Division 1.
On this appeal we are required to determine whether the appellant County Board of Supervisors had the authority to require proof of the
availability
of domestic water as a condition to the approval of appellee’s proposed subdivision plat. The trial judge held that it did not have such authority, and we agree.
On September 13, 1972, the appellant Board of Supervisors of Yavapai County, acting on the recommendation of its County Planning and Zoning Commission, denied approval of a proposed subdivision plat of the appellee, Glenarm Land Company, Inc. From the action of the Board of Supervisors, the Glenarm Land Company sought review in the Superior Court of Yavapai County by way of a petition for special action. In the special action petition Glenarm asked the Court to order the Board of Supervisors to approve its subdivision plat. The trial judge found that Glenarm had complied with all the then existing requirements for a subdivision plat, and that the Board of Supervisors did not have authority to require a further proof from Glenarm of the future availability of water for the proposed subdivision. It therefore ordered the Board to approve Glenarm’s subdivision plats.
Initially, we note that there is no particular statutory provision for the review of an adverse decision of a County Board of Supervisors denying approval of a subdivision plat.
The provisions of the Administrative Review Act, A.R.S. § 12-901 et seq., would not be applicable inasmuch as the county is not an “agency” within the purview of that Act. As previously stated, Glenarm sought review in the Superior Court by way of a special action petition. Neither party questions the availability of that method of review, and we consider it appropriate.
See Rubi v. 49’er Country Club Estates, Inc.,
7 Ariz. App. 408, 440 P.2d 44 (1968);
City of Phoenix v. Superior Court, County of Maricopa,
110 Ariz. 155, 515 P.2d 1175 (1973).
In its special action petition, Glenarm advanced essentially two contentions:
(1) That the Board of Supervisors lacked authority to deny approval of a subdivision plat based upon its determination that sufficient water was not available to meet existing needs and those of the proposed subdivision; and
(2) That, assuming the existence of such authority, the Board acted in an arbitrary and capricious manner.
At the special action hearing, after taking evidence relating primarily to the introduction of the records and proceedings before the appellant Board and the Planning and Zoning Commission, the trial
judge ruled as a matter of law that the Board lacked the authority to require a showing of the existence of an adequate water supply.
On appeal, the appellants first contend that the trial judge erred in failing to grant a trial
de novo
in the special action proceeding. This contention might have some relevance if the trial judge had reached the merits of the availability of water question. However, such was not the case. As a preliminary legal question the trial judge decided that the Board did not have such authority and thus did not reach the merits. In view of our decision, we need not decide whether appellants would have been entitled to a trial
de novo
on the merits of the water availability question.
As an additional twist on the trial
de novo
questions, appellants appear to be contending that they should have been allowed to show other bases for the denial of the subdivision plat. We do not agree. A.R.S. § 11-806.01 C requires that:
“The ground of refusal or approval of any plat submitted, including citation of or reference to the rule or regulation violated by the plat, shall be stated upon the record of the board.”
The trial judge specifically found that the Board of Supervisors’ rejection of the application of appellee was based upon the question of availability of water for the proposed subdivision. The record fully supports this finding. To allow the Board to assert and present evidence on appeal relating to other previously unstated alleged deficiencies would be to entirely thwart the obvious intent of the statute. We hold that the trial judge did not err in restricting the special action proceeding to the ground of refusal stated by the Board in its records.
Turning now to a determination of whether the trial judge erred in his ruling that the Board lacked the authority to require a showing of an adequate water supply, we are not faced with the question of whether the Board of Supervisors could enact an ordinance dealing with the availability of water for residential purposes in the exercise of its powers pursuant to A. R.S. § 11-802. Our inquiry is much narrower. The question posed here is whether the Board can impose such a requirement as a pre-condition
to the approval of a subdivision plat.
The County’s power to approve or disapprove subdivision plats is found in A. R.S. § 11-806.01, and any power which it possesses in this regard is derived from that section.
While § 11-806.01 D, relating to the adoption of rules and regula
tions, is expressed in the permissive “may”, it is our opinion that the enactment of such rules and regulations by the county is a mandatory prerequisite to the exercise by it of its subdivision plat approval powers. We reach this conclusion by reason of the fact that subsection C of § 11-806.01 mandatorily requires that any ground of refusal include a “. . . reference to the rule or regulation violated by the plat. . a provision which the Board would find rather difficult to comply with in the absence of such rules and regulations.
A.R.S. § 11-806.01 D provides, in part, that the regulation shall “. include provisions as to the extent ... to which water utility mains, piping or other facilities shall be installed or provided for on the plat as a condition precedent to the approval of the final plat.” In our opinion this statutory provision does not grant to the county the authority to inquire into the availability of water, but even if we were to assume that it did grant such authority, the county has not brought to this Court’s attention any regulation or ordinance adopted by it setting standards for the exercise of that authority.
In conclusion, we note that in 1973 the Arizona Legislature adopted legislation requiring the subdivider/developer, prior to the recording of the subdivision plat, to submit the plat to the Arizona Water Commission and demonstrate to that Commission the adequacy of the proposed water supply.
■ Also, see A.R.S. § 32-2181 D, re
quiring promotional material to adequately display the Arizona Water Commission’s Report.
In summary, in the case before us we find no authority which would authorize the appellant Board of Supervisors to inquire into the question of the availability of water as a condition to the approval of a subdivision plat. The judgment entered by the trial court is affirmed.
FROEB, J., concurs.
DONOFRIO, Judge
(specially concurring).
I agree with the majority opinion in its affirmance of the trial court on all the issues raised, but I cannot agree to that part of the opinion which either states or implies that we must look only to A.R.S. § 11-806.01 to find authority in the County Board of Supervisors to require proof of availability of domestic water as a condition precedent to the approval of a subdivision plat. I can find no wording that could be interpreted to that effect. Subsection D of the statute only grants the Board power to promulgate regulations regarding the facilities or means, such as piping, etc., by which the distribution of water is conducted rather than on the subject of the availability of the water. The pertinent wording of the subsection reads as follows:
“. . . The regulations shall include provisions as to the extent to which streets and other highways shall be graded and improved and to which water, sewer, or other utility mains, piping or other facilities shall be installed or provided for on the plat as a condition precedent to the approval of the final plat.”
As I see it, we must look to other statutes. The powers and duties of the several County Boards of Supervisors are set out in various statutory sections, including A. R.S. § 11-251 (General Powers), § 11-802 (County Planning and Zoning), and § 11-806.01 (Subdivision Platting). A.R.S. § 11-802 states that the Board shall plan and provide for the future growth and improvement of its area of supervision by way of regulations and ordinances covering zoning and subdivision platting, “. . .in order to conserve and promote the public health, safety, convenience and general welfare . . . .” In my opinion this section, together with the others mentioned, do give by implication the legal authority to the County Board of Supervisors to enact an ordinance providing for proof of availability of water before approval of a proposed subdivision. County supervisors possess only powers expressly conferred by statute or necessarily implied therefrom.
See Ricca v. Bojorquez,
13 Ariz.App. 10, 473 P.2d 812 (1970) ;
Board of Supervisors of Apache County v. Udall,
38 Ariz. 497, 1 P.2d 343 (1931);
Maricopa County v. Southern Pacific Co.,
63 Ariz. 342, 162 P. 2d 619 (1945);
Peters v. Frye,
71 Ariz. 30, 223 P.2d 176 (1950). It is also true that implied powers of county boards of supervisors do not exist independently of the legislative grant of express powers, because the only function of an implied power is to aid in carrying into effect a power expressly granted.
Associated Dairy Products Co. v. Page,
68 Ariz. 393, 206 P.2d 1041 (1949). In the instant case we must agree with appellant that due to the uniqueness and critical need for water in the State of Arizona it is implied that the Board may enact an ordinance requiring proof of availability of water in furtherance of its duty to conserve and promote
the public health, safety, and general welfare, an express legal power of the Board.
My position is that under the law the Board can enact an ordinance or regulation requiring proof of availability of water before approval of a subdivision and that in the instant case there is no presently existing regulation or ordinance providing a standard by which to determine if Glenarm had in fact proved the availability of adequate water for its subdivision. I would hold that because there is an absence of a specific standard provided in an enactment, the action of the Board of Supervisors in denying approval of the subdivision plat was arbitrary and unreasonable.
As to the remaining issues, I am compelled to agree with the trial court that there is ample evidence in the record to show that Glenarm had complied with all then-existing requirements.