                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


STEVEN WASHBURN and JEANETTE                      )
WASHBURN, husband and wife;                       )
WASHBURN COMPANY, INC., d/b/a                     )         2 CA-CV 2003-0107
WASHBURN CUSTOM BUILDERS; and                     )         DEPARTMENT B
SOUTHERN ARIZONA                                  )
HOMEBUILDERS ASSOCIATION,                         )         OPINION
                                                  )
                         Plaintiffs/Appellants,   )
                                                  )
                    v.                            )
                                                  )
PIMA COUNTY, a body politic,                      )
                                                  )
                         Defendant/Appellee.      )
                                                  )


             APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                     Cause No. C-20030754

                              Honorable Jane L. Eikleberry, Judge

                                           AFFIRMED


Haralson, Miller, Pitt, Feldman & McAnally, P.C.
 By Gerald Maltz and Stephen Golden                                                    Tucson
                                                            Attorneys for Plaintiffs/Appellants

Barbara LaWall, Pima County Attorney
 By Christopher Straub                                                               Tucson
                                                            Attorneys for Defendant/Appellee


E C K E R S T R O M, Judge.
¶1             Appellants Steven and Jeanette Washburn, the Southern Arizona Homebuilders

Association (SAHBA), and Washburn Company, Inc. (collectively the Washburns), appeal from

the trial court’s order granting summary judgment in favor of appellee Pima County. The

Washburns contend on appeal that the county lacked statutory authority to adopt an ordinance

requiring builders of single-family homes to incorporate design features allowing for greater

wheelchair access and that the ordinance violates the Arizona Constitution. We affirm.

                                          Background

¶2             On appeal from a grant of summary judgment, we view the facts and all reasonable

inferences in the light most favorable to the party opposing the motion. Pleak v. Entrada Property

Owners’ Ass’n, 205 Ariz. 471, ¶2, 73 P.3d 602, ¶2 (App. 2003). In February 2002, the Pima

County Board of Supervisors adopted Ordinance 2002-2, the Inclusive Home Design Ordinance,

which was apparently modified by Pima County Ordinance 2002-72. Among its other effects, the

ordinance promulgated building requirements applicable to the construction of new, single-family

homes in unincorporated areas of Pima County. It did so by adopting selected construction

standards found in the American National Standards Institute’s (ANSI) publication A117.1,

Accessible and Usable Buildings and Facilities (the ANSI standards), published by the

International Code Council (ICC). The adopted provisions require that newly constructed homes

incorporate design features that allow people in wheelchairs to more easily enter and use the

homes. These features include “doorways wide enough to permit wheelchair access, electrical

outlets reachable by a wheelchair-bound person, and bathroom walls reinforced to permit

installation of grab bars.” The Washburns admit that requiring these features in multi-family



                                                2
residential facilities and places of public accommodation serves an important government interest

but challenge application of the requirements to single-family homes.

¶3             The Washburns applied for a permit to build a single-family home, but the proposed

design failed to comply with the ordinance, and the county denied the application. They later filed

a declaratory judgment and special action complaint in which they asked the trial court to declare

that the county lacked statutory authority to adopt the ordinance and that it violated both the Equal

Protection and Privacy Clauses of the Arizona Constitution. Ariz. Const. art. II, §§ 8, 13. The

trial court granted the Washburns’ request for resolution of the special action complaint by an

order to show cause (OSC) hearing pursuant to Rule 4(c), Ariz. R. P. Special Actions, 17B A.R.S.

The county filed a motion for summary judgment and objected to resolving the complaint by OSC.

Following arguments on the OSC, the trial court issued an under-advisement ruling, essentially

granting summary judgment in favor of the county. In so ruling, the court concluded that the

resolution of another case in which SAHBA had participated barred the Washburns from

challenging the county’s statutory authority to adopt the ordinance. The court also found that the

ordinance was constitutional. Because it is clear from the record that the trial court denied the

Washburns’ request for declaratory relief, we need not determine whether the trial court erred in

accepting jurisdiction of their special action complaint, an argument the county raised only in its

motion for summary judgment. See Ariz. R. P. Special Actions 1(a) (“Except as authorized by

statute, the special action shall not be available where there is an equally plain, speedy, and

adequate remedy by appeal . . . .”). Our review focuses instead on whether the trial court

properly granted summary judgment in the county’s favor.



                                                 3
                                       Standard of Review

¶4             Summary judgment is proper if the evidence presented by the party opposing the

motion has so little probative value, given the required burden of proof, that reasonable jurors

could not agree with the opposing party’s conclusions. Ariz. R. Civ. P. 56(c)(1), 16 A.R.S.,

Pt. 2; Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). In reviewing a

grant of summary judgment, we determine de novo whether any genuine issues of material fact

exist and whether the trial court erred in applying the law. Bothell v. Two Point Acres, Inc., 192

Ariz. 313, 316, 965 P.2d 47, 50 (App. 1998).

                                            Preclusion

¶5             The Washburns first contend the trial court erred in determining either res judicata

or collateral estoppel precluded them from asserting their statutory claims. These doctrines, also

referred to as claim and issue preclusion, preclude a party from relitigating a claim or an issue as

a result of previous litigation. See Smith v. CIGNA HealthPlan of Ariz., 203 Ariz. 173, ¶¶22,

25, 52 P.3d 205, ¶¶22, 25 (App. 2002). The county relies on the outcome of a lawsuit filed in

the United States District Court for the District of Arizona in which SAHBA had participated. See

Garber v. Pima County, No. CV 02-489 TUC FRZ (order filed October 11, 2002). The district

court found that the plaintiffs, including SAHBA, had failed to state a claim upon which relief

could be granted but ultimately dismissed the case for lack of subject matter jurisdiction. See id.

¶6             Relying on Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371,

60 S. Ct. 317, 84 L. Ed. 329 (1940), the county argues that the Washburns were precluded from

bringing this action because they failed to appeal the district court’s determination that it lacked

subject matter jurisdiction over the federal lawsuit. In that case, the defendant had filed a

                                                 4
voluntary bankruptcy action to allow it to reorganize its debt. After the reorganization plan was

approved by the defendant’s creditors and affirmed by the district court, the Supreme Court

declared unconstitutional the statute under which the bankruptcy court had proceeded. The

plaintiff creditor then filed an action in the district court to collect on bonds originally issued by

the defendant that had been extinguished under the reorganization plan. The plaintiff prevailed

in the trial court, but the Supreme Court reversed, holding that, at the time of the bankruptcy

proceedings, the district court had possessed “authority to pass upon its own jurisdiction[,] and

its decree sustaining jurisdiction against attack, while open to direct review, is res judicata in a

collateral action.” Chicot County Drainage Dist., 308 U.S. at 377, 60 S. Ct. at 320, 84 L. Ed.

at 334 (emphasis added).

¶7             Unlike in Chicot County Drainage District, however, the district court in the federal

case ruled that it lacked subject matter jurisdiction over the merits of that case. Although SAHBA

could have challenged that ruling on direct appeal, it instead filed this action. Citing Wages v.

Internal Revenue Service, 915 F.2d 1230, 1234 (9th Cir. 1990), the Washburns argue that the

district court in the federal case lacked authority to enter a binding decision on the merits once it

determined it lacked subject matter jurisdiction. Wages is a corollary to Chicot County Drainage

District and holds that, once a court determines it lacks subject matter jurisdiction over a particular

case, it has no authority whatsoever to address the merits of the case. Wages, 915 F.2d at 1234

(“[A] Judge who concludes that subject matter jurisdiction is lacking has no power to rule

alternatively on the merits of a case.”). Because the district court in the federal case ruled that it

lacked subject matter jurisdiction over that action, it was precluded from addressing the merits.

Id. Accordingly, neither res judicata nor collateral estoppel precluded the Washburns from

                                                  5
bringing this action. The Washburns’ failure to appeal the district court’s dismissal is immaterial.

Although the trial court erroneously agreed with the county that the Washburns were precluded

from bringing their statutory claims, we will affirm the judgment if it was correct for any reason.

Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996). Accordingly, we turn

to the merits of the Washburns’ statutory claims.

                                     Statutory Interpretation

¶8             The legislature authorized counties to adopt building codes but “limited [that

authority] to the [adoption of] . . . [a]ny building, electrical or mechanical code that has been

promulgated by any national organization or association that is organized and conducted for the

purpose of developing codes.” A.R.S. § 11-861(A), (C)(1). The Washburns challenge the

county’s adoption of the ANSI standards, which, through mandatory language, set forth a

comprehensive collection of rules for builders to facilitate building access to people confined to

wheelchairs. The Washburns contend that the county could not adopt the ANSI standards under

§ 11-861 because ICC neither titled nor classified those standards as a “code.” Whether the

legislature authorized the county to adopt requirements like the ANSI standards is a question of

law subject to our de novo review. See Hohokam Irrigation and Drainage Dist. v. Ariz. Pub.

Serv. Co., 204 Ariz. 394, ¶5, 64 P.3d 836, ¶5 (2003).

¶9             The principal goal in interpreting a statute is to ascertain and give effect to the

legislature’s intent. Pleak, 205 Ariz. 471, ¶7, 73 P.3d 602, ¶7. To do so, we first examine the

statute’s language. Lowing v. Allstate Ins. Co., 176 Ariz. 101, 103-04, 859 P.2d 724, 726-27

(1993). Because § 11-861 is silent as to what the legislature intended a “code” to comprise, we

find the statute ambiguous and consider other factors such as the statutory scheme, the statute’s

                                                 6
subject matter, historical context, effects and consequences, and spirit and purpose.           See

Sanderson Lincoln Mercury, Inc. v. Ford Motor Co., 205 Ariz. 202, ¶11, 68 P.3d 428, ¶11 (App.

2003).

¶10            “Statutes relating to the same subject matter should be read in pari materia to

determine legislative intent and to maintain harmony.” Goulder v. Ariz. Dep’t of Transp. Motor

Vehicle Div., 177 Ariz. 414, 416, 868 P.2d 997, 999 (App. 1993), aff’d, 179 Ariz. 181, 877 P.2d

280 (1994). The Washburns note that A.R.S. § 9-802, enacted about thirty years before § 11-861,

arguably allows cities to adopt, among other things, building regulations of the nature the county

adopted here. In connection with that section, the legislature provided that a code is

               a published compilation of rules or regulations prepared by a
               technical trade association and includes any building code, electrical
               wiring code, health or sanitation code, fire prevention code,
               inflammable liquids code, code for slaughtering, processing and
               selling meat and meat products or for production, pasteurizing and
               sale of milk and milk products, or other code which embraces rules
               and regulations pertinent to a subject which is a proper subject of
               municipal legislation.

A.R.S. § 9-801(1). The Washburns point to the broad function-based language the legislature

used to define adoptable codes in this section relating to municipalities, contrast it with the lack

of any specific definition for “code” in the section relating to counties, and argue that the

difference demonstrates the legislature’s intent to provide counties with markedly less discretion

in crafting an appropriate building code.      Specifically, the Washburns note that cities are

authorized to adopt any “published compilation of rules or regulations prepared by a technical

trade association,” § 9-801(1), but argue that counties may only adopt guidelines that are

specifically characterized by national technical organizations as “codes.”


                                                 7
¶11              We presume the legislature is aware of existing statutes when it enacts new statutes,

and we presume the legislature intends to change the law when it substantively changes the

language of a statute. Prudential v. Estate of Rojo-Pacheco, 192 Ariz. 139, 149, 962 P.2d 213,

223 (App. 1997); Brousseau v. Fitzgerald, 138 Ariz. 453, 455, 675 P.2d 713, 715 (1984).

However, we do not view the mere failure of the legislature to amplify the meaning of the word

“code” in § 11-861(C)(1), the provision relating to counties, as reflecting an intent to discard its

previous understanding of the meaning of that word as articulated in the provision relating to

cities.

¶12              In Rotter v. Coconino County, 169 Ariz. 269, 818 P.2d 704 (1991), our supreme

court discussed the relationship between a county zoning ordinance that regulated nonconforming

uses and the state enabling statutes. The court noted that, while the legislature had expressly

announced that the “‘elimination of nonconforming uses in a zoned [municipal] district is for a

public purpose,’” id. at 276 n.7, 818 P.2d 711 n.7, quoting A.R.S. § 9-462.02, the legislature had

never articulated a similar policy with respect to county zoning decisions. The court found,

however, that both governmental subdivisions were similarly enabled to exercise their police

powers to zone and to determine suitable permissible uses. Id. In the absence of express

legislation to the contrary, the court declined to announce a nonconforming use policy that varied

between types of governmental authorities. Instead, the court found that the legislature had

intended to adopt a uniform land-use policy and did not limit a county’s authority to exercise its

police power merely because the legislature had less artfully articulated the scope of county

authority. Id.



                                                   8
¶13            Like the statute addressed in Rotter, § 11-861 entitles counties to determine and

implement policies intended to further the general health, safety, and welfare of their residents.

See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 47 S. Ct. 114, 118, 71 L. Ed.

303, 310 (1926); Emmett McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, ¶11, 58 P.3d

39, ¶11 (App. 2002). Within the confines of guidelines promulgated by national associations

organized and conducted for the purpose of developing codes, the legislature has enabled both

counties and municipalities to determine regionally tailored building policy, to identify specific

design elements that further policy objectives, and to require builders to incorporate those

elements. Thus, cities’ and counties’ enabling statutes rest on the same underlying policy

considerations.

¶14            Just as the appellants in Rotter asked the supreme court to draw far-reaching

conclusions from the legislature’s inclusion of one clause in a city enabling statute and its omission

from a comparable county enabling statute, the Washburns ask this court to draw a similar far-

reaching conclusion from the legislature’s failure to elaborate on the definition of the word

“code” in § 11-861(C)(1) when it had done so in the comparable statute relating to municipalities.

Following the supreme court’s example in Rotter, we decline to assume any legislative intent from

the mere omission of surplus explanatory language in the statute relating to counties when the two

statutes in question have such obviously similar goals.

¶15            Nor does our function-based reading of the word “code” render superfluous the

second mechanism by which a county may adopt a building code. See State v. McKeon, 201 Ariz.

571, ¶17, 38 P.3d 1236, ¶17 (App. 2002) (“Whenever possible, we construe statutes so as not to

render any clause, sentence, or word superfluous.”). Under that second alternative in § 11-

                                                  9
861(C)(1), a county may adopt the building code of “the largest city in that county” without regard

to whether that code has been “promulgated by a national organization or association.” In finding

that the word “code” carries a similar meaning within the statutes enabling counties and cities to

regulate construction, we do not suggest that the legislature gave all of the same options to both

political subdivisions. A city is authorized to adopt any building code “prepared by a technical

trade association.” § 9-801(1). A county, on the other hand, may adopt codes promulgated only

by a “national organization or association that is organized and conducted for the purpose of

developing codes.” § 11-861(A) and (C)(1). Thus, the legislature authorized cities to adopt

construction regulations published by a significantly broader range of sources, including local and

parochial technical associations. Because a city building code might therefore contain components

that could not be adopted by a county through its own independent authority, a county could not

pursue a policy of uniformity within incorporated and unincorporated portions of its boundaries

without receiving special legislative authority to mimic the code of its largest city.

¶16            In contrast to the Washburns’ suggestion that we should view the “largest city”

clause from § 11-861(C)(1) as an implied limitation on the definition of the word “code,” the

clause shows that when the legislature has intended to constrain a county’s authority to adopt

building codes, it has been able to articulate the nuances of such limitations. The clause requires

a county that has adopted its building code from the “largest city” in the county to also adopt any

subsequent building code changes the city enacts. The legislature has also limited a county’s

ability to adopt fire codes by mandating that such codes must be at least as stringent as the fire




                                                10
code adopted by the state fire safety committee. See § 11-861(C)(2); A.R.S. § 41-2146.1 Given

the willingness of the legislature to lucidly articulate specific limitations on county authority in the

context of adopting building requirements, we will not infer from its silence an intent to limit

counties to the most narrow and hypertechnical definition of the term “code.”

¶17             The Washburns also asserted in oral argument before this court that the legislature’s

use of the word “limited” in § 11-861(C) conveys its intent to narrow the definition of the word

“code” used in the sentence thereafter. Viewed in context, the obvious thrust of that provision

confines counties to the use of building standards “promulgated by any national organization or

association that is organized and conducted for the purpose of developing codes.”2 In short, § 11-

861(C) limits counties’ choice of building regulations to those that have been developed by

knowledgeable professionals—but does not limit the definition of the word “code.” To the

contrary, § 11-861(C)(1) explicitly authorizes a county to adopt “[a]ny building, electrical or

mechanical code” which has the appropriate professional pedigree. (Emphasis added.) Thus, the

Washburns’ assertion that § 11-861(C) impliedly instructs us to construe the word “code” as a

highly technical term of art—rather than by its common usage—finds little support in the language

of the statute itself.


        1
       The underlying policy of these provisions—promoting a minimum measure of uniformity
between adjacent jurisdictions—is inapplicable here.
        2
         The Washburns do not dispute that ANSI is a “national organization or association”
organized for the purpose of developing and promulgating regulations for the construction of
homes. Thus, they do not challenge the professional pedigree of ANSI in this regard. Rather,
they argue that ANSI promulgates “standards” rather than codes. Their challenge to ANSI as a
qualified organization under § 11-861(A) and (C)(1) thus depends on a broader question we
address here—whether the legislature intended the word “code” to include comprehensive sets of
standards such as those promulgated by ANSI.

                                                  11
¶18            The Washburns also assert that, because § 11-861 requires counties to adopt

building “codes” promulgated by nationally recognized organizations, we should interpret the term

consistently with the term’s meaning within the construction industry. However, we attribute no

specialized meaning to statutory language unless the legislature has clearly conveyed its intent that

we do so. Kilpatrick v. Superior Court, 105 Ariz. 413, 421, 466 P.2d 18, 26 (1970) (“Words are

to be given their usual and commonly understood meaning unless it is plain or clear that a different

meaning was intended.”); see also A.R.S. § 1-213 (“Words and phrases shall be construed

according to the common and approved use of the language.”). Thus, the focus of our inquiry is

not whether the terms “code” and “standard” have acquired an industry-specific meaning but

whether the legislature intended the term “code” within § 11-861(C)(1) to convey an industry-

specific meaning. Because there is nothing in the statutory history or the statute’s language in

§ 11-861(C)(1) suggesting the legislature intended to imbue the terms “code” and “standards” with

mutually exclusive, industry-specific definitions the Washburns proffer, we cannot agree with the

Washburns’ suggestion. If the legislature had intended to use the word “code” as an industry-

specific term of art so as to substantially limit the options of county governments in their choice

of nationally promulgated building specifications, it would have articulated that intention.

Certainly, the legislature could not have expected counties to divine such an intent from a mere

use of the word “code” in the statute.

¶19            Nor do we find any caveat in the ANSI standards themselves indicating they could

not constitute a “code” within the meaning of § 11-861(C)(1). The foreword to the ANSI

standards provides in part that the standards, “when adopted as a part of a building code, would

be compatible with the building code and its enforcement.” According to the Washburns, this

                                                 12
language demonstrates that the ANSI standards were not intended to stand by themselves as a

“code.” But the Washburns’ argument presupposes that a county could never amend or augment

its current building code in a minor fashion without adopting a new comprehensive building code.

We find nothing in § 11-861(C)(1) that prevents the county from amending or augmenting its

comprehensive building regulations with self-contained “codes,” promulgated by appropriate

national organizations, that address discrete components of home construction. Moreover, the

above-quoted foreword to the ANSI standards demonstrates ANSI’s expectation that the standards

would have an equal status to other parts of a pre-existing building code once adopted.

¶20            We are also not persuaded to reach a contrary result merely because initially the

ANSI standards were not applicable to single-family homes. See ANSI standards § 101 (“These

criteria are intended to be consistent with the intent of only the technical requirements of the

Federal Fair Housing Act Accessibility Guidelines.”); 42 U.S.C. § 3603(b)(1) (Fair Housing Act

does not apply to most single-family homes). Notwithstanding the original application of the

ANSI standards, those standards include a provision that suggests ANSI drafted the standards to

be capable of flexible application to different types of “dwelling units” in various settings.

Furthermore, the foreword demonstrates that ANSI anticipated the need to be compatible with

other types of building codes and drafted the standards with this in mind. Indeed, the very use of

the term “standard” connotes compatibility with complementary regulations. We address the

Washburns’ other claims regarding the county’s application of the ANSI standards to single-family

homes in the context of their challenges to the ordinance’s constitutionality.

¶21            We also find no policy-based explanation for why the legislature would have

intended to limit the breadth of the word “code” as used in § 11-861(C)(1). Without question,

                                                13
counties are generally empowered to regulate the construction of homes consistent with

specifications suggested by appropriate national bodies. A county’s ability to do so depends upon

its power to mandate the incorporation of particular design elements. The Washburns do not

dispute that counties may enact guidelines regulating the construction of new homes.3 Although

they strenuously argue that a county may only adopt a set of requirements labeled as a “code” but

not a set of requirements labeled as “standards,” they point to no procedural differences or

differences in professional or scientific scrutiny between the manner in which ANSI promulgated

the standards adopted here and the manner in which, for example, the ICC promulgates the

International Building Code. Both publications define minimum design criteria to implement

public policy goals in the building of structures; both anticipate that local governmental authorities

will tailor the criteria to promote regionally prioritized public policy; and, once adopted, both

contain mandatory language for how the construction must occur. Thus, we are given no plausible

explanation as to why the legislature would have intended to make the hypertechnical distinction

that the Washburns now urge in challenging the county’s authority to adopt the ANSI standards

as a code. To accept the Washburns’ construction of § 11-861(C) would require us to exalt form

over substance. For the foregoing reasons, we find that the county has not exceeded its statutory

authority in adopting the ANSI standards here because those collected standards constitute an

example of “[a]ny building . . . code that has been promulgated by any national organization . . .

that is organized for the purpose of developing codes.” § 11-861(C)(1).




       3
         During oral argument, the Washburns presented us with an example of a “code” that, in
their view, a county would be authorized to adopt, “the 2000 International Residential Code.”

                                                 14
¶22            In a related argument, the Washburns also assert the county lacked the authority

to adopt only portions of the ANSI standards. But they cite no authority for this proposition, and

we defer to the determination of the Board of Supervisor that the community’s interests were

advanced by adopting only specific portions of the ANSI standards. See Ariz. Fence Contractors

Ass’n v. City of Phoenix, 7 Ariz. App. 129, 130-31, 436 P.2d 641, 642-43 (1968) (building codes

valid exercises of municipality’s police power). Moreover, the ANSI standards themselves

contemplate, through a so-called scoping provision, the need for governmental authorities to adapt

those standards to the specific needs of their communities. Accordingly, a governmental authority

that enacts a tailored version of the ANSI standards operates in conformity with the intentions of

the professional organization that promulgated the standards. In so doing, the county complies

with the requirement of § 11-861(C)(1) that building regulations be consistent with standards set

forth by a qualified “national organization.” We therefore determine that § 11-861(C)(1) enables

counties to adopt individual building design criterion “promulgated by any national organization

or association that is organized and conducted for the purpose of developing codes” that the county

determines advances the general health, safety, and welfare of its residents.

                                      Constitutional Claims

¶23            As they did below, the Washburns next claim the ordinance violates a homeowner’s

right to privacy in his or her home under the Privacy Clause, article II, § 8 of the Arizona

Constitution. Although they concede that the government possesses the right to adopt building,

fire, and mechanical codes that provide for the protection of the general population, they question

whether the county can constitutionally impose costly design requirements on all new private

homeowners “that have value to less than 1% of the population.” They further assert the

                                                15
ordinance “deprives new homeowners and builders of the fundamental right to design private

homes . . . by imposing design criteria that invade the exercise of personal, private, and aesthetic

choices for personal private living spaces.”

¶24            Homeowners do not have “a right to be completely free from governmental

regulation of the use and occupancy of [their] real property.” State v. Watson, 198 Ariz. 48, ¶9,

6 P.3d 752, ¶9 (App. 2000). Our courts have already determined that building codes that affect

the exercise of homeowners’ “personal, private, and aesthetic choices” are a proper exercise of

police power. Id. at ¶14. Accordingly, we agree with the trial court that the ordinance does not

unconstitutionally infringe on a homeowner’s right to privacy.

¶25            In a related argument, the Washburns contend the ordinance violates their rights

under Arizona’s Equal Protection Clause, article II, § 13 of the Arizona Constitution, because it

burdens only those people constructing new homes. The level of scrutiny we apply to a

discriminatory law depends upon whether that law affects a fundamental right or a suspect class

or enacts a gender-based classification. Simat Corp. v. Ariz. Health Care Cost Containment Sys.,

203 Ariz. 454, ¶15, 56 P.3d 28, ¶15 (2002). Other than pointing to their fundamental right to

privacy, the Washburns point to nothing that would subject the ordinance to heightened scrutiny.

Because we have already found that the ordinance does not unconstitutionally affect the right to

privacy, and because the county has not engaged in any suspect classification in burdening builders

of new homes, we uphold the ordinance “so long as there is a legitimate state interest to be served

and the legislative classification rationally furthers that interest.” Id. The Washburns bear the

burden of establishing the unconstitutionality of the ordinance. See Empress Adult Video and

Bookstore v. City of Tucson, 204 Ariz. 50, ¶2, 59 P.3d 814, ¶2 (App. 2002).

                                                16
¶26             To the extent the Washburns argue the Board of Supervisors had no rational basis

for concluding that private home designs should facilitate access to people confined to wheelchairs,

we disagree. “[I]f the court can hypothesize any rational reason why the legislative body made

the choice it did, the statute or ordinance is constitutionally valid. This test validates statutes even

if the legislative body did not consider the reasons articulated by the court.” Haines v. City of

Phoenix, 151 Ariz. 286, 290, 727 P.2d 339, 343 (App. 1986). While reasonable minds might

differ over whether government should impose these types of design criteria on those building new

homes, the propriety of that public policy decision must be made through the political process by

duly elected officials.

¶27             The uncontested evidence established that approximately one percent of the

population is confined to wheelchairs, but the county points out that a much larger percentage will

suffer a disability at some point in their lives. Although all age groups are affected by disability,

the county introduced evidence that approximately forty-one percent of people over the age of

sixty-five have some form of disability. Disability is a growing problem both nationally and

locally, and the county also introduced evidence that Arizona’s population of people over the age

of sixty is expected to triple by 2025. Although many of these disabled people will not be

confined to wheelchairs, the county concluded from these figures that the number of people

confined to wheelchairs is rising.        For these reasons, the county addressed a legitimate

governmental interest when it adopted a building code designed to increase the number of homes

accessible to those in wheelchairs. Cf. Arizona Fence Contractors Ass’n, 7 Ariz. App. at 131-32,

436 P.2d at 642-43 (adopting building code valid exercise of municipality’s police power).



                                                  17
¶28            The Washburns also argue that the ordinance is not rationally related to further the

county’s interests. Again, we disagree. “A perfect fit is not required; a statute that has a rational

basis will not be overturned ‘merely because it is not made with “mathematical nicety, or because

in practice it results in some inequality.”’” Big D Constr. Corp. v. Court of Appeals, 163 Ariz.

560, 566, 789 P.2d 1061, 1067 (1990), quoting Bryant v. Continental Conveyor & Equip. Co.,

156 Ariz. 193, 197, 751 P.2d 509, 513 (1988), quoting Uhlmann v. Wren, 97 Ariz. 366, 388, 401

P.2d 113, 128 (1965); see also Standhardt v. Superior Court, ___ Ariz. ___, ¶35, 77 P.3d 451,

¶35 (App. 2003). Although it is true that not all of the people affected by disabilities will benefit

from the wheelchair access provisions of the ordinance and, although those conducting renovations

of existing homes are not required to comply with the ordinance, a regulation may rationally

advance a governmental interest despite the fact that it is underinclusive. See Bowen v. Owens,

476 U.S. 340, 348, 106 S. Ct. 1881, 1886, 90 L. Ed. 2d 316, 324 (1986).

¶29            The Washburns lastly contend the ordinance does not rationally advance the

county’s interests because it places the financial design burdens on homeowners who will probably

never be confined to wheelchairs. But the county submitted to the trial court the results of a study

suggesting that complying with the ordinance would cost only about $100. In addition, § 103.1

of the ordinance provides that the county may waive any design requirement if a building official

determines that the cost of complying with the requirement exceeds $200. Indeed, the Board of

Supervisors found that the cost of including the ordinance’s designs into a new home was

substantially less than the cost of renovating a home to accommodate a person confined to a

wheelchair. On this record, the Board of Supervisors could have rationally concluded that the

benefit to the community in providing for the disabled justified the comparatively minimal cost of

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implementing the required design features. Although the Washburns now contest the accuracy of

the county’s assertions as to the costs of these renovations, they failed in the trial court to

introduce controverting evidence regarding the cost of compliance. See Ariz. R. Civ. P. 56(e),

16 A.R.S., Pt. 2. The Washburns, therefore, have failed to establish that there were genuine

issues of material fact precluding summary judgment. See Orme Sch., 166 Ariz. at 309, 802 P.2d

at 1008. Because the ordinance rationally advances a legitimate governmental interest, the trial

court did not err in concluding that the ordinance does not violate Arizona’s Equal Protection

Clause.

¶30           Affirmed.



                                                __________________________________________
                                                PETER J. ECKERSTROM, Judge

CONCURRING:



_______________________________________
PHILIP G. ESPINOSA, Chief Judge



_______________________________________
JOHN PELANDER, Presiding Judge




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