                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                   MARICOPA COUNTY, Plaintiff/Appellee,

                                         v.

               TARIQ M. RANA, et al., Defendants/Appellants.

                              No. 1 CA-CV 18-0256
                                FILED 2-25-2020


            Appeal from the Superior Court in Maricopa County
                           No. CV 2017-012602
                The Honorable Randall H. Warner, Judge

       AFFIRMED IN PART, REVERSED IN PART; REMANDED


                                    COUNSEL

Scharff PLC, Phoenix
By Spencer G. Scharff
Counsel for Defendants/Appellants

Maricopa County Attorney’s Office, Civil Services Div., Phoenix
By Wayne J. Peck, Joseph Branco, D. Chad McBride
Counsel for Plaintiff/Appellee

Arizona Center for Disability Law, Tucson
By Rose A. Daly-Rooney, Maya S. Abela
Counsel for Amicus Curiae
                       MARICOPA v. RANA, et al.
                         Decision of the Court



                     MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1             Tariq M. and Shahnaza Rana (“Ranas”), and their lessee,
Ascend Behavioral Health and Wellness, LLC (“Ascend”),1 appeal the
superior court’s judgment granting Maricopa County’s request to
permanently enjoin alleged violations of the County’s zoning ordinance
(“MCZO”) relating to group homes. In a separate opinion filed herewith,
we address whether the injunction entered against the Ranas was
overbroad. As stated in the opinion, we vacate the judgment and remand
for entry of a revised injunction. In this memorandum decision, we address
whether the court erred in finding that (1) the Ranas failed to establish
estoppel; (2) the group home ordinance is not unconstitutionally vague; (3)
the residents living in the Ranas’ group home were not indispensable
parties; and (4) discovery sanctions were not justified. For the following
reasons, we affirm those rulings.

                            BACKGROUND

¶2            The Ranas own a nine-bedroom house located on 1.25 acres
in an unincorporated area of the County where group homes are an as-of-
right use. See MCZO §§ 201, 501.2(4), 503. The MCZO defines a “group
home” in part as a “dwelling unit shared as their primary residence by
minors, handicapped or elderly persons, living together as a single
housekeeping unit, in a long term, family-like environment in which staff
persons provide on-site care, training, or support for the residents.” MCZO
§ 201. In 2014, the Ranas submitted a land use application to the County to
use their house as a group home (“the Home”). The County approved the
request, noting that “group homes” are allowed in a zoning district where
the Home is located, subject to compliance with applicable MCZO
regulations.




1      For ease of reference, we refer to the Ranas and Ascend collectively
as “the Ranas,” unless otherwise noted.


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                         Decision of the Court

¶3            In 2017, the County issued a “Notice and Order to Comply”
alleging the Ranas were operating “a group home for adjudicated persons
or a drug rehabilitation home without a special use permit” in violation of
the MCZO. Several months later, the Ranas entered into a compliance
agreement with the County. Noting the existing violation, the County
approved a subsequent application by the Ranas to operate a group home
for the disabled, subject to several conditions.

¶4            After an inspection several weeks later, the County informed
the Ranas they were again violating the MCZO for failure to comply with
the terms of the second zoning approval. The County then initiated this
enforcement action against the Ranas under A.R.S. § 11-815(H), which
allows a county attorney to seek an injunction to “prevent, abate or remove”
any use or proposed use of land that violates a zoning ordinance.

¶5            Following an evidentiary hearing, the superior court ruled in
favor of the County and ultimately entered a final judgment permanently
enjoining the Ranas from operating the group home in violation of the
MCZO. The court stayed the injunction pending appeal, subject to several
conditions, including the prohibition of (1) any on-site staff meetings for
employees other than those working at the Home and (2) any non-
emergency “in-home treatment,” which the court “defined as any physical,
psychological, or mental health treatment or therapy from any licensed
professional.”

                              DISCUSSION

¶6            We accept the superior court’s factual findings unless they are
clearly erroneous, Nordstrom, Inc. v. Maricopa Cty., 207 Ariz. 553, 558, ¶ 18
(App. 2004), but review its legal conclusions de novo, see City of Tucson v.
Clear Channel Outdoor, Inc., 218 Ariz. 172, 182, ¶ 27 (App. 2008).

      A.     Equitable Estoppel

¶7            The Ranas argue the County is equitably estopped from
enforcing the MCZO against them. Because application of estoppel is a
question of fact, we defer to the implicit findings of the superior court “so
long as they are not clearly erroneous, even if substantial conflicting
evidence exists.” John C. Lincoln Hosp. & Health Corp. v. Maricopa Cty., 208
Ariz. 532, 537, ¶ 10 (App. 2004).

¶8           To prevail on their claim of equitable estoppel, the Ranas were
required to prove (1) the County engaged in affirmative conduct
inconsistent with this enforcement action; (2) the Ranas actually and


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                          Decision of the Court

reasonably relied on that conduct; (3) the County’s repudiation of its past
conduct caused them substantial detriment; and (4) applying estoppel
would not unduly damage the public interest or adversely affect the
exercise of governmental powers. See Luther Const. Co., Inc. v. Ariz. Dep’t of
Rev., 205 Ariz. 602, 604–05, ¶ 11 (App. 2003). The kind of prior “inconsistent
conduct sufficient to invoke equitable estoppel must be absolute,
unequivocal, ‘bear some considerable degree of formalism under the
circumstances,’ and be taken by or have the approval of a person authorized
to act in the area.” Id. at 605, ¶ 14 (citation omitted).

¶9             The Ranas rely on Pingitore v. Town of Cave Creek, 194 Ariz. 261
(App. 1998), for their contention that the County has engaged in affirmative
conduct inconsistent with its current position that, as operated by Ascend,
the Home lacks a “family-like environment.” There, the town sought to halt
the construction of the plaintiffs’ residence, objecting to their proposed
construction site. Id. at 265, ¶ 23. We concluded that the town’s “issuance
of stop-work orders” was inconsistent with its prior approval of “a variety
of permits and variances . . . that were necessary for the [plaintiffs] to build
at their desired location.” Id. at ¶ 25. The Ranas contend their case is even
clearer than Pingitore based on the County’s approval of their two land use
applications.

¶10             In Pingitore, however, the plaintiffs had repeatedly informed
the Town of the location of their construction site—the precise act that the
town had later sought to prevent. See, e.g., id. at 262–63, ¶¶ 2, 5, 7–9. And
despite knowing the location of the site, the Town’s response to the
plaintiffs’ permit application “did not implicate” the site placement. Id. at
265, ¶ 25. Unlike the plaintiffs in Pingitore, the Ranas’ applications informed
the County only that the Ranas intended to operate a group home, first for
the elderly and then for disabled persons. The applications did not,
however, inform the County that Ascend would hold company-wide staff
meetings at the Home or that it would transport residents of other facilities
to the Home. Because the County never took an absolute, unequivocal,
position as to whether these two practices violated the MCZO, the Ranas
fail to establish estoppel’s first element. The superior court did not abuse
its discretion in finding that the Ranas failed to establish estoppel.

       B.     Vagueness

¶11           The Ranas assert that the failure of the MCZO to define
“family-like environment” renders the phrase unconstitutionally vague
because it does not provide fair notice of what is prohibited and invites
arbitrary enforcement. Recognizing that the group home provision may


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require some interpretation, the County argues nonetheless it should not be
considered void for vagueness.

¶12            A “vague law is no law at all.” U.S. v. Davis, 139 S. Ct. 2319,
2323 (2019). Such a law violates due process because it fails to provide fair
warning about what conduct it prohibits such that it invites arbitrary and
discriminatory enforcement. State v. Cotton, 197 Ariz. 584, 590, ¶ 19 (App.
2000); see also Davis, 139 S. Ct. at 2325 (“Vague statutes threaten to hand
responsibility for defining crimes to relatively unaccountable police,
prosecutors, and judges, eroding the people’s ability to oversee the creation
of the laws they are expected to abide.”). Accordingly, so long as the law is
reasonably clear about what it prohibits, we will not strike it down for
vagueness simply because there is some potential for arbitrary
enforcement. State v. Burke, 238 Ariz. 322, 328–29, ¶ 16 (App. 2015). A law
is typically not unconstitutionally vague if its meaning may be ascertained
“by common understanding and practices,” State v. Cota, 99 Ariz. 233, 236
(1965), rather than “wholly subjective judgments without statutory
definitions, narrowing context, or settled legal meanings,” see U.S. v.
Williams, 553 U.S. 285, 306 (2008) (citing statutory criteria such as
“annoyance” or “indecency”).

¶13         We first note that because our interpretation of the MCZO
does not rely on County employees’ testimony describing informal
working definitions of terms in the MCZO, we do not consider the Ranas’
vagueness arguments that are premised on these internal definitions.

¶14           Though enforcing the MCZO may require some analysis, it is
not unconstitutionally vague. The MCZO provides fair warning of what it
requires: residents of a group home must live in a family-like environment.
The meaning of that phrase has been explained in the opinion. The Ranas
have not cited, nor has our research revealed, any case where a court found
that phrase void for vagueness. Unlike “wholly subjective” standards, the
group home definition does not depend entirely on personal notions but
instead on objective facts about a home’s living arrangement and
community impact. Common understandings, experiences, and practices
give a reasonable person the ability to ascertain what conduct might be
prohibited. Accordingly, the Ranas’ vagueness challenge fails.

       C.     Failure to Join Indispensable Parties

¶15           The Ranas argue that the County’s failure to join the Home’s
residents as parties renders any judgment void under Arizona Rule of Civil




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Procedure (“Rule”) 19(a), an issue raiseable for the first time on appeal.
Gerow v. Covill, 192 Ariz. 9, 14, ¶ 19 (App. 1998).

¶16             To resolve this issue, we must decide if each of the Home’s
residents was a “required party” under Rule 19(a)(1). Id. at 15, ¶ 22.
Because joining the residents would not deprive the court of subject-matter
jurisdiction, if each resident is a “required party,” their absence “is a
jurisdictional defect and deprives the court of the power to adjudicate as
between the parties already joined.” See Connolly v. Great Basin Ins. Co., 6
Ariz. App. 280, 284 (1967). The Ranas do not argue that the residents’
presence in the lawsuit was required under Rule 19(a)(1)(A) or Rule
19(a)(1)(B)(ii); therefore, we need only determine whether the residents
“claim[] an interest relating to the subject of the action and [are] so situated
that disposing of the action” in their absence will impede their ability to
protect that interest. Ariz. R. Civ. P. 19(a)(1)(B)(i). The Ranas specifically
assert that the residents’ absence from the case has prevented the residents
from protecting their interest in their home and avoiding “the emotional,
psychological harm they would suffer from their eviction.”

¶17            Assuming the residents’ interest in the manner in which
Ascend used the group home before the injunction issued is cognizable
under Rule 19, their absence does not require reversal because that is the
same interest that the Ranas and Ascend have sought to defend. It is
unreasonable to conclude the Ranas and Ascend would not seek to
vigorously defend against the injunction or to make all arguments against
it. Cf. Shermoen v. U.S., 982 F.2d 1312, 1318 (9th Cir. 1992); Makah Indian
Tribe v. Verity, 910 F.2d 555, 558–60 (9th Cir. 1990). The County’s failure to
join the residents therefore created no jurisdictional defect because the
residents were not required parties.

       D.     Expenses as a Sanction for Failure to Admit

¶18            The Ranas argue the superior court erred by declining to
sanction the County under Rule 37(e) for failing to admit two of the Ranas’
requests for admission. Specifically, the Ranas assert the County’s refusals
to admit (1) that all of the residents had a serious mental illness and (2) that
seriously mentally ill persons can live in a “family-like environment” were
not justified by any reason listed under Rule 37(e). The County asserts that
the court’s decision was within its discretion.

¶19            “If a party fails to admit what is requested under Rule 36 and
if the requesting party later proves the matter true,” the court must order
the “non-admitting party [to] pay the reasonable expenses . . . incurred in



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                        MARICOPA v. RANA, et al.
                          Decision of the Court

making that proof” upon the motion of the requesting party unless: (1) the
request is “objectionable under Rule 36(a)”; (2) the admission “was of no
substantial importance”; (3) the non-admitting party had reasonable
grounds to believe “it might prevail on the matter”; or (4) “other good
reason.” Ariz. R. Civ. P. 37(e). We review decisions under Rule 37 for an
abuse of discretion. Furrh v. Rothschild, 118 Ariz. 251, 255 (App. 1978).

¶20           The County refused to admit or deny that all the Home’s
residents were seriously mentally ill, asserting that “medical records . . . are
confidential and [the County] does not have access to the information
necessary to form a response.” The superior court found this was a “good
reason” under Rule 37(e)(4). Contending that the court abused its
discretion, the Ranas point out that the County’s verified amended
complaint explicitly alleged that the residents were “classified by the State
of Arizona as ‘seriously mentally ill.’” But the complaint alleged only that
the residents are considered seriously mentally ill by the State, and the
County did not purport to have knowledge of whether this classification
was, in fact, accurate. The court thus acted within its discretion in
concluding the County’s lack of access to confidential medical records was
a “good reason” to decline to take a definitive position on the matter in a
legal proceeding. Ariz. R. Civ. P. 37(e)(4).

¶21           The County also failed to admit or deny whether individuals
with serious mental illness can live in a family-like environment, asserting
the question “call[ed] for a medical diagnosis and because the response can
differ from person to person.” The superior court denied sanctions because
this admission was not of substantial importance to the case under Rule
37(e)(2). Because the disposition of the enforcement action turned on
whether the residents actually lived in a “family-like environment,” the
court did not abuse its discretion in finding that the County’s opinion of
whether, in the abstract, seriously mentally ill individuals can do so was “of
no substantial importance.” Ariz. R. Civ. P. 37(e)(2).

       E.     Fair Housing Act

¶22           As interpreted by the County, the Ranas contend the group
home ordinance “violates the [federal] Fair Housing Act because its state-
license requirement has a disparate impact on individuals with serious
mental illness.” See 42 U.S.C. §§ 3602, 3604. According to the Ranas, the
County’s position that a behavioral health residential facility cannot
constitute an as-of-right group home unlawfully excludes individuals with
a serious mental illness from benefitting from group-home living. For the
reasons explained in our separate opinion, we conclude that Ascend is not


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                        MARICOPA v. RANA, et al.
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precluded from offering its residents on-site individual and group
counseling, which means that its seriously mentally ill residents are not
categorically excluded from living in an as-of-right group home. They can
continue living in the Home subject to compliance with our opinion and
other pertinent provisions of the MCZO. Accordingly, we do not address
the Ranas’ claim that the County’s interpretation of the ordinance violates
the Fair Housing Act.

       F.     Issues Related to Remand

¶23           The Ranas argue the equities weighed against injunctive relief
because other remedies were available and the injunction harms both the
residents and the public interest. In response, the County asserts that A.R.S.
§ 11-815(H) does not permit the superior court discretion to decline to issue
an injunction once the County established a violation of the MCZO.

¶24            The Ranas’ contention relating to balancing of the equities
relies on asserted consequences of the injunction that are no longer at issue,
such as eviction of the residents. Thus, we do not address that argument.
For purposes of our remand, however, we address whether the superior
court lacked any discretion to consider alternative remedies. We reject the
County’s argument that the court had no discretion. As the County admits,
the violations alleged here were not nuisances per se because use of the
Home (as a group home) would have been an as-of-right use in different
areas of the County. See MCZO §§ 804, 805, 901; City of Tucson, 218 Ariz. at
187, ¶ 53 (A nuisance per se is an act, occupation, or structure that is a
nuisance whenever and wherever it is found). If a violation does not
constitute a nuisance per se, courts may “balance the equities in deciding
whether to enjoin a zoning violation.” Id. at 187, ¶ 55.

¶25           The Ranas also contend that the injunction failed to meet the
specific requirements of Rule 65(d)(1). They assert that vague language in
the judgment makes it impossible to tell what is forbidden and what is
required. Because we are vacating the injunction and remanding for entry
of a new injunction that prohibits staff meetings and use of the Home for
functions or care involving residents from other facilities, the Ranas’
argument is moot.

       G.     Attorneys’ Fees and Costs

¶26          The Ranas request an award of attorneys’ fees incurred on
appeal pursuant to A.R.S. §§ 12-341.01, 12-348, and 12-349. The Ranas have
not explained how § 12-341.01 applies here. Regardless, because both
parties have been partially successful on appeal, neither is the prevailing


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                       MARICOPA v. RANA, et al.
                         Decision of the Court

party for purposes of awarding fees under § 12-341.01 or 12-348, or for
purposes of awarding taxable costs. We deny the Ranas’ request for
attorneys’ fees made under § 12-349 because nothing in this appeal merits
sanctions.

                             CONCLUSION

¶27           Based on the foregoing, we affirm the portion of the superior
court’s ruling addressing estoppel, vagueness, discovery sanctions, and
indispensable parties. As stated in the opinion, we vacate the court’s
judgment and remand for further proceedings.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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