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Bonito Partners, LLC v City of Flagstaff - 2/21/2012

Arizona Court of Appeals Division One Holds that Courts in Takings Clause Cases Must First Examine the Government Action at Issue Under the Due Process Clause Before Undertaking a Takings Clause Analysis and Also Holds That a City Ordinance Requiring Private Owners to Pay for Repairs to Sidewalks Abutting their Property Is a Valid Exercise of Police Power and is Not an Unconstitutional “Special Tax” or “Local or Special Law,” and that Arizona Statutes Give Cities the Authority to Enact Such Ordinances


The appellant, Bonito Partners, LLC (“Bonito”), owns land in Flagstaff that is adjacent to a city sidewalk. The sidewalk fell into disrepair and the city sent a letter to Bonito notifying it that under city ordinances, Bonito was required to repair the sidewalk within ten days or the city would repair the sidewalk, charge Bonito for the cost of the repairs, and place a lien on Bonito’s property if Bonito failed to pay. Bonito responded by telling the city to “[p]lease proceed with the repairs.  Do not wait for Bonito Partners, LLC to do the work.”  The city repaired the sidewalk and sent a bill to Bonito. Bonito did not pay, and the city recorded a lien on Bonito’s property. Bonito sued, arguing that the city ordinance requiring landowners to repair sidewalks effected an unconstitutional taking of private property without just compensation. Bonito also argued that the ordinance was an unlawful tax and exceeded the city’s authority granted by Arizona statute and the city charter. The trial court granted summary judgment in favor of the city and Bonito appealed.

The Court of Appeals affirmed in part and vacated and remanded in part. The Court held that the parties and the trial court had conflated two related takings clause issues and that before courts undertake an analysis under the Takings Clause, they must first determine whether the government action at issue was a valid exercise of police power under the Due Process Clause of the Fourteenth Amendment. Quoting a decision from Connecticut, the Court held that the legislature may “place the burden of the upkeep of sidewalks which would otherwise rest upon the community upon the abutting owner, provided it does not act arbitrarily or unreasonably,”  and that the ordinance at issue was “neither arbitrary nor unreasonable and [was], therefore, a valid exercise of the City’s police power.” The Court then conducted an analysis under the Takings Clause and found that no per se taking had occurred because Bonito had not suffered a permanent physical invasion nor a complete deprivation of all economically beneficial uses of its property.

The Court pointed out that neither the trial court nor the parties to the case had addressed the factors listed by the U.S. Supreme Court in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) for determining when a government action constitutes a regulatory taking. The Court thus vacated the trial court’s holding on this issue. Additionally, because a Penn Central inquiry is fact intensive, the Court remanded the issue back to the trial court “to determine whether the City’s lawful exercise of its police powers nonetheless constituted an unconstitutional taking.”

Bonito also argued that the city ordinance was unconstitutional under the state constitution because it was a “special tax.” The Court rejected this argument, holding that the ordinance was not a special tax because it did not have a revenue-generating purpose. Bonito further argued that the city ordinance was unconstitutional under the state constitution because it was an impermissible “local or special law.” The Court also rejected this argument because the city ordinance furthered “a legitimate governmental objective of abating public sidewalk nuisances” and because it applied “uniformly to all property owners with public sidewalks adjacent to their properties.” Bonito’s last argument was that the city ordinance improperly exceeded the scope of authority granted to the city by statute and by the city charter. The court rejected this argument, citing statutes granting authority to cities to abate nuisances, to compel property owners to clear obstructions from sidewalks, to require property owners to build sidewalks, and granting cities exclusive control over sidewalks.

Judge Hall authored the opinion; Judges Brown and Norris concurred.

Posted by: James Rogers

Posted On: 2/28/2012