Bonito Partners, LLC v. City of Flagstaff
270 P.3d 902
Ariz. Ct. App.2012Background
- Bonito owns property adjacent to a City sidewalk in Flagstaff; sidewalk disrepair created a nuisance affecting public safety.
- City notified Bonito in 2009 that Bonito must repair the sidewalk within ten days per City ordinance §8-01-001-0003.
- City repaired the sidewalk if Bonito failed to do so, and would lien the property for the costs per §8-01-001-0007.
- Bonito challenged the ordinance as unconstitutional takings, unlawful taxation, and power-exceeding; asserted lien enforcement and fees as improper.
- Trial court granted summary judgment to City; on appeal, issues were recharacterized as due process vs takings review and the takings question was remanded for Penn Central analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Takings analysis pending due process validity | Bonito argues the lien constitutes a taking. | City contends regulation is valid police power; takings depend on due process first. | Takings issue remanded for Penn Central analysis after valid police-power determination. |
| Is the ordinance a prohibited tax | Bonito contends it is a revenue-generating measure. | City asserts the ordinance abates a nuisance, not revenue-raising. | Not a revenue-raising measure; not an unlawful tax. |
| Local or special law constraint | Bonito claims the ordinance targets a limited class without rational relation. | City argues uniform application to all abutting property owners with sidewalks. | Ordinance not a local or special law. |
| Statutory authority and charter scope | Bonito asserts ordinance exceeds statutory and charter powers. | City asserts powers drawn from Title 9 and charter provisions granting police powers. | Ordinance within statutory and charter authority. |
| Attorneys' fees on appeal | Bonito seeks fees under A.R.S. §§ 12-348(B)(1) and 33-420. | Fees not warranted since ordinance is not a tax nor lien groundless. | Attorneys' fees denied. |
Key Cases Cited
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (U.S. 2005) (takings analysis presupposes valid police power)
- First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (U.S. 1987) (takings requires compensation after proper public purpose)
- Ranch 57 v. City of Yuma, 152 Ariz. 218 (App. 1986) (takings may occur despite police-power validity)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (U.S. 1978) (ad hoc Penn Central standards for regulatory takings)
- Smith v. Mahoney, 22 Ariz. 342 (Ariz. 1921) (distinguishes police power from taxation)
- City of Bridgeport v. United Illuminating Co., 131 Conn. 368 (1930s) (sidewalk regulation and abatement as police power)
- Palmyra v. Morton, 25 Mo. 593 (Mo. 1857) (police power to require sidewalk maintenance)
- Eastern Enterprises v. Apfel, 524 U.S. 498 (U.S. 1998) (consideration of regulatory takings with broad context)