COUNTY OF COCHISE v. SEBASTIAO FARIA and MARIA FARI Dba FARIA DAIRY ( 2009 )

FILED BY CLERK
JUN 16 2009
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
COUNTY OF COCHISE, a Political ) 2 CA-CV 2008-0146
Subdivision of the State of Arizona, ) DEPARTMENT A
)
Plaintiff/Counterdefendant/ ) OPINION
Appellee, )
)
v. )
)
SEBASTIAO FARIA and MARIA F. )
FARIA dba FARIA DAIRY, )
)
Defendants/Counterclaimants/ )
Appellants. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CV 2007-00716
Honorable Stephen M. Desens, Judge
AFFIRMED
Edward G. Rheinheimer, Cochise County Attorney
By Britt W. Hanson Bisbee
Attorneys for Plaintiff/
Counterdefendant/Appellee
Jennings Strouss & Salmon, PLC
By Brian Imbornoni Phoenix
Attorneys for Defendants/
Counterclaimants/Appellants
H O W A R D, Presiding Judge.
¶1 Appellants Sebastiao Faria and Maria Faria, dba Faria Dairy, appeal from the
trial court’s order granting summary judgment in favor of appellee Cochise County and
enjoining the Farias from using a parcel of real property to run a heifer pen-feeding
operation. The Farias claim the court erred in ruling that their use of the property was not
exempt from county zoning regulation as a “general agricultural purpose[]” pursuant to
A.R.S. § 11-830(A)(2), and that A.R.S. § 11-821.01(A) authorized the county to regulate
their use of the property. We conclude that uses included under § 11-821.01 are not “general
agricultural” uses under § 11-830, and affirm.
Facts
¶2 We view the facts in the light most favorable to the party opposing summary
judgment and draw all reasonable inferences arising from the evidence in favor of that party.
Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996). The Farias
own real property on both sides of Kansas Settlement Road in Cochise County. In 2003, the
Farias began operating a dairy farm on the part of the property that is located east of the road
and that is zoned as HI (Heavy Industry). In 2006, the Farias constructed feeding pens on
the property on the west side of the road, which is zoned as RU-4 (Rural District, minimum
site area four acres). The feeding pens consist of two parallel rows of pens that are
approximately one-half mile in length. Troughs run through the pens to channel urine,
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manure, feed and detritus into a detention basin.1 The Farias began using the west property
to raise heifers born on the dairy farm. The pens are used for supplemental feeding of the
heifers and the heifers are also permitted to graze on approximately 300 acres of adjoining
land. Most heifers raised on the west property are eventually transferred back to the dairy
farm for use as milk cows. Approximately 3,000 heifers are being raised on the west
property at any given time.
¶3 The Cochise County planning department sent the Farias a notice of zoning
violation for operating a commercial feed lot without a permit. In response, the Farias
applied for a special use permit, which was denied. The Farias appealed to the Cochise
County Board of Supervisors and contended they did not need a special use permit because
the feeding pens fell within the definition of “general agricultural purpose” under § 11-
830(A)(2). The Farias asserted they were not waiving this position but that they also wished
to proceed with the appeal to try to obtain a special use permit and thereby avoid further
litigation. The Board of Supervisors denied the appeal. The Farias continued to operate the
pen-feeding facility on their land.
¶4 Subsequently, the county sued the Farias alleging they were in violation of a
zoning regulation and requesting an injunction. The Farias counterclaimed, seeking, inter
1
The facts relating to the structural description of the feeding pens are taken from the
county’s statement of facts filed with its motion for summary judgment. The Farias objected
to the relevance of and foundation for these facts and filed a corresponding motion to strike
materials offered in support of the county’s statement. However, the Farias subsequently
withdrew their motion to strike the relevant materials and have never disputed the accuracy
of the facts alleged.
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alia, declaratory relief. The parties filed cross-motions for summary judgment. The trial
court denied the Farias’ motion for summary judgment, found the heifer feeding was a like
business under § 11-821.01(A), granted the county’s motion, and enjoined the Farias from
using the property as a “pen feeding operation for its heifers.”
Discussion
¶5 The Farias argue the trial court erred in granting summary judgment in favor
of the county and enjoining them from using the property for pen-feeding. They contend the
pen-feeding facility is a use for a general agricultural purpose and thus exempt from county
zoning regulation pursuant to § 11-830(A)(2). They further argue that the trial court erred
in concluding the county could regulate their use of the property under § 11-821.01(A).
¶6 Summary judgment is proper when “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P.
56(c)(1). We review de novo whether there are any genuine issues of material fact and
whether the trial court applied the law properly. Brookover v. Roberts Enters., Inc., 215
Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App. 2007). We also review de novo questions regarding
the construction of statutes. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526,
529, 869 P.2d 500, 503 (1994). We review the trial court’s decision to grant injunctive relief
for an abuse of discretion. Cochise County v. Broken Arrow Baptist Church, 161 Ariz. 406,
408, 778 P.2d 1302, 1304 (App. 1989). A court abuses its discretion if its decision is based
on an incorrect interpretation of the law. See Flying Diamond Airpark, LLC v. Meienberg,
215 Ariz. 44, ¶ 27, 156 P.3d 1149, 1155 (App. 2007).
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¶7 The power of a county’s board of supervisors derives solely from state statute.
Hart v. Bayless Inv. & Trading Co., 86 Ariz. 379, 384, 346 P.2d 1101, 1105 (1959). When
a county enacts zoning regulations, it must “adhere to the state statutes which delegate that
power.” Sandblom v. Corbin, 125 Ariz. 178, 184, 608 P.2d 317, 323 (App. 1980). The
statutes delegating power to the counties are set forth in Title 11 of the Arizona Revised
Statutes. Section 11-821(B), which is in chapter six—County Planning and Zoning—directs
the counties to adopt county plans to provide zoning for “various classes of residential,
business and industrial uses.” Section 11-830(A)(2) provides that “[n]othing contained in
any ordinance authorized by this chapter shall . . . [p]revent, restrict or otherwise regulate the
use or occupation of land or improvements for railroad, mining, metallurgical, grazing or
general agricultural purposes, if the tract concerned is five or more contiguous commercial
acres.” The legislature did not define “general agricultural purposes.” It enacted §§ 11-821
and 11-830(A)(2) in 1949. See 1949 Ariz. Sess. Laws, ch. 58, §§ 7, 16.
¶8 In 1963, the legislature added § 11-821.01, entitled “Duty to zone certain area
for canneries, fertilizer plants, refineries, commercial feed lots, meat packing plants, tallow
works, and other like businesses.” 1963 Ariz. Sess. Laws, ch. 94, § 1. Section 11-821.01(A)
states in relevant part:
The county planning and zoning commission shall designate and
zone appropriate areas of reasonable size in which there may be
established with reasonable permanency canneries, fertilizer
plants, refineries, commercial feed lots, meat packing plants,
tallow works, and other like businesses, and the county board of
supervisors shall by ordinance adopt at least one of any such
plans as may be submitted by the commission to the board for
the location of such businesses.
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The legislature did not define or provide a test for “other like businesses.”
¶9 When construing a statute, we must “determine and give effect to legislative
intent.” City of Phoenix v. Phoenix Employment Relations Bd., 207 Ariz. 337, ¶ 11, 86 P.3d
917, 920 (App. 2004). We look first to the plain language of the statute because that is the
best indicator of legislative intent. Mejak v. Granville, 212 Ariz. 555, ¶ 8, 136 P.3d 874, 876
(2006). Because the legislature did not define “general agricultural purposes,” § 11-830 is
ambiguous. Accordingly, we also “‘consider the statute’s context; its language, subject
matter, and historical background; its effects and consequences; and its spirit and purpose.’”
Scheehle v. Justices of the Supreme Court of the State of Arizona, 211 Ariz. 282, ¶ 16, 120
P.3d 1092, 1098 (2005), quoting Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668,
672 (1994). “[E]ach word or phrase of a statute must be given meaning so that no part is
rendered void, superfluous, contradictory or insignificant.” Pinal Vista Props., L.L.C. v.
Turnbull, 208 Ariz. 188, ¶ 10, 91 P.3d 1031, 1033 (App. 2004). When interpreting a
particular term, “‘we apply a practical and commonsensical construction.’” City of Tucson
v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 33, 181 P.3d 219, 230 (App. 2008), quoting
Douglass v. Gendron, 199 Ariz. 593, ¶ 10, 20 P.3d 1174, 1177 (App. 2001).
¶10 “‘We presume the legislature is aware of existing statutes when it enacts new
statutes.’” Home Builders Ass’n of Cent. Ariz. v. City of Maricopa, 215 Ariz. 146, ¶ 15, 158
P.3d 869, 874 (App. 2007), quoting Washburn v. Pima County, 206 Ariz. 571, ¶ 11, 81 P.3d
1030, 1035 (App. 2003). When “statutes relate to the same subject and are thus in pari
materia, they should be construed together with other related statutes as though they
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constituted one law.” Pima County by City of Tucson v. Maya Constr. Co., 158 Ariz. 151,
155, 761 P.2d 1055, 1059 (1988); see also State ex rel. Thomas v. Ditsworth, 216 Ariz. 339,
¶ 12, 166 P.3d 130, 133 (App. 2007) (pari materia rule “‘applies even where the statutes were
enacted at different times, and contain no reference . . . to [each] other’”), quoting State ex
rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970). Statutes granting
zoning authority to the counties, and zoning ordinances enacted pursuant to that authority,
will be strictly construed in favor of property owners. Robinson v. Lintz, 101 Ariz. 448, 451,
420 P.2d 923, 926 (1966); Jones v. County of Coconino, 201 Ariz. 368, ¶ 11, 35 P.3d 422,
425 (App. 2001).
¶11 According to its plain language § 11-821.01 protects the types of businesses
listed by ensuring they have a zone within which to operate. See Mejak, 212 Ariz. 555, ¶ 8,
136 P.3d at 876 (statute’s plain language best indicator of legislative intent); Milton R.
Schroeder, Public Regulation of Private Land Use in Arizona: An Analysis of its Scope and
Potential, Law & Soc. Order 747, 789 (1973) (observing protective nature of § 11-821.01).
The wording in the title of § 11-821.01, “[d]uty to zone,” and the wording in subsection (A),
“[t]he county planning and zoning commission shall designate and zone appropriate areas
of reasonable size . . . with reasonable permanency” (emphasis added), show that the
legislature has created an affirmative duty on the part of counties to allow the types of
businesses listed to operate somewhere in each county. The requirement that counties
designate appropriate areas, and that such areas be reasonably permanent, ensures that
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counties cannot enact ordinances prohibiting these businesses in each and every county, and
thus the entire state, under general statutory zoning authority.2 See § 11-821.
¶12 If the legislature believed commercial feedlots and like businesses fell within
the category of “general agricultural purposes” under § 11-830(A)(2), then the legislature
would not have needed to extend the protection afforded by § 11-821.01 to commercial
feedlots or businesses that are “like” commercial feedlots. See Home Builders, 215 Ariz.
146, ¶ 15, 158 P.3d at 874 (legislature presumed aware of existing statutes when enacting
new one). Such businesses already would be protected from zoning regulations by the
exemption in § 11-830(A)(2). If that were true, then including commercial feedlots in § 11-
821.01(A) would have been superfluous.
¶13 At oral argument, the Farias postulated that, because both §§ 11-830 and 11-
821.01 were designed to protect commercial feedlots in some way, these statutes offered
“redundant protection” to feedlots and similar uses. The Farias further suggested that it
would not make sense to use one protective section to restrict the protection afforded by
another protective section. “Redundant protection” is one plausible or practical explanation
for the two statutes. But the Farias could not offer, and we have not found, any authority for
2
This analysis is slightly different than that in the county’s brief. The county treated
§ 11-821.01 as though its purpose is to give the counties the authority to generate restrictions
on the types of businesses listed, which implicitly suggests that before the statute was enacted
the counties had no authority to regulate them. But § 11-821 provides broad authority to the
counties to regulate land use and no zoning statute other than § 11-830 exempts any
particular use from regulation. Thus, the types of businesses listed in § 11-821.01 were
subject to regulation by the counties before that statute was enacted. See Schroeder, Law &
Soc. Order at 789 (§ 11-821.01 protective of activities listed). At oral argument, the county
agreed this interpretation was correct.
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the proposition that this court can interpret two related sections as redundant. Rather, as
previously noted, we assume the legislature knew about existing law, see Home Builders, 215
Ariz. 146, ¶ 15, 158 P.3d at 874, and did not enact a redundant statute. See Deer Valley
Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 8, 152 P.3d 490, 493 (2007) (courts
interpret statutes so no part will be redundant).
¶14 We also acknowledge the initial appeal of the Farias’ contention, emphasized
at oral argument, that the general agricultural purposes exemption in § 11-830(A)(2) includes
the Farias’ use and precludes application of any zoning ordinance, including ordinances
contemplated under § 11-821.01. The Farias contend that it is therefore simply unnecessary
to consider § 11-821.01 when determining the scope of the county’s zoning authority in this
case. But because the legislature has not defined “general agricultural purposes,” we are
required to construe that statutory language. See Stein v. Sonus USA, Inc., 214 Ariz. 200, ¶ 3,
150 P.3d 773, 774 (App. 2007) (court applies rules of statutory construction to ambiguous
statute).
¶15 Because “commercial feedlots” are uses of an agricultural nature of some kind,
their inclusion in § 11-821.01 means that both § 11-821.01 and § 11-830(A)(2) relate to the
same subject. As noted above, statutes relating to the same subject must be construed
together “as though they constituted one law.” See Maya Constr., 158 Ariz. at 155, 761 P.2d
at 1059. To ignore § 11-821.01 in this case would essentially divest the inclusion of
“commercial feedlots” and “other like businesses” in § 11-821.01 of any effectiveness, which
we cannot do. See id.
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¶16 Additionally, because § 11-821.01(A) does not refer to the size of the parcel
used, its language does not support the Farias’ argument that it was intended only to protect
commercial feed lots and like businesses of less than five commercial acres. When § 11-
821.01 was enacted, § 11-830 protected general agricultural uses of “not less than two
contiguous acres.” 1949 Ariz. Sess. Laws, ch. 58, § 16. The statutes would not comport with
common sense if they provided for the regulation of small feedlots occupying less than two
acres, if such uses even exist, but exempted much larger feed lots—that would be of much
greater concern to neighboring land owners—from all zoning regulations.
¶17 Because we will not, as noted earlier, construe a statute in a way that renders
any part superfluous, see Pinal Vista Props., 208 Ariz. 188, ¶ 10, 91 P.3d at 1033, or
nonsensical, see Clear Channel Outdoor, 218 Ariz. 172, ¶ 33, 181 P.3d at 230, we conclude
that § 11-830(A)(2) does not protect commercial feedlots and like businesses and that § 11-
821.01 was enacted to do so. Accordingly, we conclude the legislature did not intend the
term “general agricultural purposes” in § 11-830(A)(2) to include commercial feedlots or
businesses like commercial feedlots.3
¶18 Based upon the foregoing analysis, if the Farias’ use of the property constitutes
a commercial feedlot or a business that is “like” a commercial feedlot, then it is not exempt
from regulation under § 11-830(A)(2). The Farias did not argue below that their business
3
To the extent this decision does not interpret §§ 11-821.01 and 11-830 as the
legislature intended, we note that the “‘legislature retains the power to correct us.’” Hancock
v. Bisnar, 212 Ariz. 344, ¶ 22, 132 P.3d 283, 288 (2006), quoting Galloway v. Vanderpool,
205 Ariz. 252, ¶ 17, 69 P.3d 23, 27 (2003).
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was not an “other like business” under § 11-821.01 and the trial court found that it was.
Because the Farias did not factually dispute the contention that their use was an “other like
business” before the trial court, or in their opening brief on appeal, that argument is waived.
See Brookover, 215 Ariz. 52, n.2, 156 P.3d at 1162 n.2 (appellate court will not consider
arguments not presented to trial court at time trial court considered summary judgment
motion); Dawson v. Withycombe, 216 Ariz. 84, n.11, 163 P.3d 1034, 1050 n.11 (App. 2007)
(arguments not raised in opening brief waived).
Conclusion
¶19 In light of the foregoing, we affirm the trial court’s grant of summary judgment
in favor of the county. We further affirm the trial court’s order enjoining the Farias from
maintaining their pen feeding operation on the subject property.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
____________________________________
PHILIP G. ESPINOSA, Judge
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