The Arizona Supreme Court issued a unanimous opinion Tuesday finding that the Town of Marana violated state law by assigning the entire cost of upgraded and expanded wastewater treatment facilities to future homeowners through development impact fees.
The fees were challenged by the Southern Arizona Home Builders Association (SAHBA) under Arizona Revised Statute 9-463.05 due to the fact that existing Marana residents also benefited from the improved facilities.
The opinion authored by Justice Clint Bolick reverses a Pima County Superior Court decision and sets aside an Arizona Court of Appeals decision, both of which sided with Marana.
According to Bolick’s opinion, town officials violated state law by requiring new residents to bear the entire cost of the expanded and improved services and facilities. Instead, the statute required a proper allocation of costs be conducted through a “discrete, evidence-based findings of fact” that took into consideration the benefit to existing residents.
The case now goes back to a Pima County judge for further proceedings, at which SAHBA will be free to argue that certain expenses should not be included in development fees at all, while Marana officials may argue that certain expenses pertain exclusively to new development.
This could lead to no change to the development fees or an order for recalculation of those fees.
Court records show that until 2012, Pima County provided sewer and water service to residents of the Town of Marana. That year, after five years of effort, the town obtained operational control over a wastewater reclamation facility (WRF) from Pima County, assuming the facility’s roughly $16.4 million in outstanding debt.
In 2013, Marana acquired legal title to the WRF, including the infrastructure, land, and exclusive rights to the facility’s effluent. Owning the effluent contributes to the 100-year assured water supply required for new development, as it can be used to recharge the aquifer.
Town officials then voted to issue 20-year bonds with an annual debt service of $1.8 million to finance the acquisition of the WRF. The Town also commissioned two infrastructure improvement plans, which assigned half of the acquisition costs to future water customers and the other half to future sewer customers.
Those costs would be paid in the form of development impact fees.
The WRF’s output was initially limited to 380,000 gallons per day (gpd) but the capacity was up to 500,000 gpd by 2017 when town officials approved a Capital Improvement Project encompassing “multi-phase expansion and upgrades” to the water and sewer systems.
Phase 1, which was the subject of SAHBA’s litigation, was undertaken to increase the WRF’s capacity to 1.5 million gpd to serve both existing residents and anticipated development. It also brought Marana into compliance with the Class B+ water quality standard required by its Aquifer Protection Permit.
New water and sewer impact fees were also adopted by Town officials in 2017, still assigning 100 percent of the debt service to future water and sewer customers via development impact fees.
As previously reported by AZ Free News, SAHBA initiated its lawsuit in 2018 seeking a declaratory judgment that the development fees violated ARS 9-463.05 by disproportionately imposing the WRF and Phase 1 expenses on future developers even though current residents were also benefitting from the improvements.
In response, the Town’s attorneys argued the development fees were valid because the expansion and improvements were undertaken to serve future development. A Pima County judge agreed and granted summary judgment in favor of the Town.
According to the judge, “the Town’s chief goal in acquiring the WRF was to obtain its effluent as a water resource in order to secure recharge credits towards water rights as a means for sustaining growth by having access to a 100-year designated water supply.”
The Arizona Court of Appeals affirmed the lower court decision, ruling it was irrelevant that any upgrades and modernization to the WRF would also benefit existing residents.
The Town’s attorneys then went on to oppose having the Arizona Supreme Court consider the case, calling such review “unwarranted.” But the justices announced in April 2022 it would hear the matter, noting the case presented unresolved issues of statewide importance.
Tuesday’s opinion notes the court of appeals “committed two principal errors” in upholding the lower court’s decision in favor of Marana. First was applying a presumption that the Town’s assessment of development fees was valid. Second, the appellate court took the position that the WRF project was “entirely” for purposes of new development, even though Marana officials conceded some costs would benefit existing residents.
“In sum, we conclude that the Town violated § 9-463.05 by making future development bear 100% of the cost of acquiring the WRF; by making future development bear nearly all the cost of upgrading, modernizing, and improving the facility; and by failing to determine what could or could not be included in development fees or to make any proportionate allocation of costs between existing and future development,” the opinion states.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
Two major water rights cases that date back to the 1970s are being reassigned to another judge, the first such change in more than 10 years, the Arizona Supreme Court announced last week.
Judge Scott Blaney of the Maricopa County Superior Court will take over the Gila River System and Source case as well as the Little Colorado River System and Source case, both of which were first litigated in the late 1970s. He replaces Judge Mark Brain effective Feb. 4 as what is commonly known as Arizona’s Water Judge.
The cases Blaney is taking over are general stream adjudication proceedings to determine the extent and priority of water rights in the Gila River system (Maricopa County case nos. W-1, W-2, W-3, and W-4), and in the Little Colorado River system (Apache County Superior Court case no. 6417).
The Gila River General Stream Adjudication civil case began in the 1970s as a series of petitions to the Arizona State Land Department to determine, or adjudicate, conflicting surface water rights for the Salt, Verde, Gila, and San Pedro rivers.
The petitions were eventually transferred to the superior courts of the individual counties where the petitions were originally filed, but a 1981 Arizona Supreme Court order consolidated all four cases into the Gila River case. The justices also ordered the matters would be heard in Maricopa County.
Similarly, the Little Colorado River Adjudication began in the late 1970s when mining company Phelps Dodge Corp. filed a petition with the state land department to determine water rights to the Little Colorado River system and source. The litigation was later transferred to the Apache County Superior Court as the county where the largest number of potential claimants reside.
Blaney, a graduate of the University of Arizona James E. Rogers College of Law, served on the civil and family court benches of Maricopa County Superior Court since 2018. Prior to that, Blaney worked in private practice from 2003 to 2015 before becoming State Judge Advocate for the Arizona National Guard and general counsel for the Arizona Department of Emergency & Military Affairs (DEMA).
The state’s Water Judge is assisted by an appointed Special Master who hears disputes arising out of the cases, such as objections to hydrographic survey reports and other legal and factual issues designated by the judge.
Court records show the current Special Master is Susan Ward Harris, who was appointed in 2015. She has a master’s degree in hydrology from the University of Arizona’s College of Science as well as a Master of Law degree from Georgetown University.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
The Arizona Supreme Court ruled Wednesday that gubernatorial candidate Kari Lake must start her election challenge appeal at the Arizona Court of Appeals – Division 1, rejecting Lake’s argument for a transfer of the case in hopes of expedited handling.
The order declining Lake’s request to bypass a three-judge panel at the court of appeals in Phoenix noted “no good cause appears to transfer the matter to this court.” It also noted there had already been a scheduling order issued in case with possible oral argument slated for Jan.24.
It is a decision Lake appears to have accepted.
My court case will be going before the Appeals Court prior to the Arizona Supreme Court because it's already been scheduled for review.
This decision was done without prejudice & I am confident the case will end up in their hands eventually.
The defendants in Lake’s election challenge include the five members of the Maricopa County board of supervisors, the county’s two elections directors, and Recorder Stephen Richer. Katie Hobbs was also a defendant in her official capacity as Arizona Secretary of State at the time of the election.
The courts have now substituted Adrian Fontes as the defendant in his role as the new secretary of state, although Hobbs remains a defendant in her personal capacity as a contestee for governor.
Lake filed on Dec. 30 to have the Arizona Court of Appeals overturn the findings made by Judge Peter Thompson of the Maricopa County Superior Court, who denied Lake’s election challenge on Dec. 24 after a two-day trial.
Then, as reported by AZ Free News, Lake’s attorneys filed a petition the next day to transfer the appeal directly to the Arizona Supreme Court.
The three judges assigned to the panel that will hear Lake’s appeal are Maria Elena Cruz, Angela K. Paton, and Peter B. Swann.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
It appears that Rep. Paul Gosar (R-AZ-09) wasn’t a white supremacist posing a real threat of violence after all.
On Tuesday, Rep. Alexandria Ocasio-Cortez (D-NY-14) was captured engaging in a friendly conversation with Gosar. This interaction occurred a little over a year after she accused Gosar of white supremacy and threats of violence for posting a meme video portraying her and other Democrats as slain anime villains. Her claims of fear resulted in Gosar’s censuring and removal from two committees.
So then I says "The combustion engine was actually a miracle of engineering that people take for granted today…" pic.twitter.com/oloHkBjlGo
Ocasio-Cortez later clarified to reporters that the floor conversation with Gosar concerned Democrats’ support for Rep. Kevin McCarthy (R-CA-20) or Rep. Hakeem Jeffries (D-NY-08) as House Speaker. She toldMSNBC that Gosar spoke to her to keep GOP leadership “honest,” dispelling McCarthy’s claim that he had Democrats’ support.
On her floor convo with Rep. Gosar earlier, AOC tells me that McCarthy made claims within the GOP conf. that some Ds would walk away to lower the threshold. Gosar was asking AOC for clarification — would she walk away? “We would never do that,” AOC told me. Jeffries all the way. pic.twitter.com/yDsbJjFIPU
The fallout from Gosar’s meme occurred in November 2021. Ocasio-Cortez derided Gosar, insisting that the meme portrayed Gosar’s “fantasy” of killing her. She also claimed that institutions don’t protect women of color.
“White supremacy is for extremely fragile people and sad men like him, whose self concept relies on the myth that he was born superior because deep down he knows he couldn’t open a pickle jar or read a whole book by himself,” tweeted Ocasio-Cortez.
So while I was en route to Glasgow, a creepy member I work with who fundraises for Neo-Nazi groups shared a fantasy video of him killing me
And he’ll face no consequences bc @GOPLeader cheers him on with excuses.
Outcry from Democrats resulted in Gosar’s censure, which took four hours of debate to reach.
The congressman was removed from two committees: the National Resources Committee and the Oversight and Reform Committee. Gosar’s censure broke an 11-year dry spell for censures. Only two Republicans voted with Democrats to censure Gosar: Reps. Adam Kizinger (R-IL-16) and Liz Cheney (R-WY).
WATCH: Complete remarks by Rep. Paul Gosar (@RepGosar) during House debate on his censure.
"I do not espouse violence towards anyone. I never have. It was not my purpose to make anyone upset." pic.twitter.com/a6JI4xxqgt
During the censure vote, Ocasio-Cortez claimed the meme was an incitement to violence. Since the meme’s posting, Ocasio-Cortez hasn’t been subject to any publicized attacks.
WATCH: Complete remarks by @RepAOC@AOC during U.S. House Debate on Resolution to Censure Rep. Paul Gosar.
"What is so hard, what is so hard about saying that this is wrong? This is not about me. This is not about Rep. Gosar. But, this is about what we are willing to accept." pic.twitter.com/nqV8ElU3d3
On New Year’s Day, Kari Lake asked the Arizona Supreme Court to take up her case challenging the 2022 midterm election. The request for special-action appellate review marks a final effort to prevent transition of power proceedings ahead of Governor-Elect Katie Hobbs’ inauguration on Thursday.
Lake’s team filed their appeal with the Arizona Court of Appeals last Wednesday, alleging that suppressed and illegal votes outnumbered Hobbs’ 17,100 lead. Lake is pushing for a new election.
“A new governor is scheduled to be seated under a cloud of electoral uncertainty and impropriety,” stated Lake.
The embattled GOP candidate’s team cited “extraordinary circumstances” as the reason for their request, characterizing the Election Day tabulator-printer fiasco as a “targeted attack” on voters as well as citing the upcoming swearing-in ceremony.
Lake’s appeal insisted that the court should distinguish the election content standards: namely, clear-and-convincing versus preponderance-of-evidence, the use of latches for the right to violate laws in future elections, and that unconstitutional elections would qualify as misconduct.
We would recommend this thread to anyone still pretending that what happened in November was a free & fair election.
The amount of evidence of intentional misconduct on Election Day and the weeks following is overwhelming.
Lake asserted that Maricopa County officials offered “changing and conflicting testimony” that they alleged was proof of intentional malfeasance on Election Day, including chain of custody violations and improper signature review for mail-in ballots. The appeal included a remark made by the county’s counsel, Thomas Liddy, in his closing argument.
“You reap what you sow,” said Liddy, in reference to Election Day voters.
The longer @katiehobbs is allowed to pretend she's governor, the more damage she does to our institutions.
Serious countries don't allow fundamentally unserious people to pretend that they are leaders.
Especially morally vacant and intellectually vapid ones like Hobbs.
Lake claimed that controversy over this most recent election jeopardizes the republic: a seeming counter to Democrats’ claim that scrutinizing elections jeopardizes democracy.
“A significant majority of voters no longer trust the outcomes of elections in Arizona. A functioning republic cannot exist for long in these circumstances,” read the appeal.
Polls support Lake’s claim concerning election distrust. Rasmussen Reports found that 72 percent of likely voters agreed with Lake’s claims that Election Day problems resulted in disenfranchisement, with 45 percent strongly agreeing.
Tufts University polling conducted the week after the midterm election discovered that distrust in elections correlated with age. Younger voters tended to trust the legitimacy of elections more greatly than older voters, especially concerning the 2020 election. Their polling also discovered that younger generations were far less likely to identify with one specific political party, but didn’t view Democrats as “too extreme” compared with older generations.
Although Hobbs’ team points to Monday as the inauguration day, the official ceremony remains on Thursday.
