                             IN THE COURT OF APPEALS
                                 STATE OF ARIZONA
                                   DIVISION TWO


W. KENT WONDERS and JUDITH A.                  )
WONDERS, as Trustees of the Wonders            )
Family Trust of 9/13/91,                       )         2 CA-CV 2003-0090
                                               )         DEPARTMENT A
                      Plaintiffs/Appellants,   )
                                               )         OPINION
                      v.                       )
                                               )
PIMA COUNTY, a body politic,                   )
                                               )
                       Defendant/Appellee.     )
                                               )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C20013005

                            Honorable Carmine Cornelio, Judge

                                        AFFIRMED


Robin C. Carter, Attorney-at-Law, P.C.
 By Robin C. Carter                                                              Tucson
                                                      Attorneys for Plaintiffs/Appellants

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


F L Ó R E Z, Judge.
¶1            Appellants Kent and Judith Wonders, as trustees of the Wonders Family Trust,

appeal from the trial court’s grant of summary judgment in favor of Pima County in an action

the Trust brought challenging the legality of Pima County’s native-plant preservation

ordinance. We affirm.

¶2            The Trust is the developer of two subdivisions in Pima County—a 20.3-acre,

nineteen-lot subdivision known as Critter Land I, and a 154-acre, 148-lot subdivision known

as Critter Land II. Under Ordinance No. 1998-39, incorporated into the Pima County Zoning

Code at chapter 18.72 (the “Ordinance”), a landowner seeking to develop land like the Trust’s

must choose one, or a combination, of three designated native-plant preservation methods or

obtain a variance from Pima County’s Board of Adjustment. See Pima County, Ariz., Code

§§ 18.72.050 (C) and 18.72.090 (1985).

¶3            The Trust did not seek a variance, but instead, as a condition for having its

subdivision plats approved, submitted a native-plant preservation plan that complied with the

Ordinance. The Trust then filed a complaint for inverse condemnation and a request for

declaratory judgment, alleging that the Ordinance effects a regulatory taking of its property

under the Fifth Amendment to the United States Constitution and article II, § 17 of the

Arizona Constitution, that the Ordinance is unconstitutionally vague, and that it conflicts with

preemptive state law. The parties filed cross-motions for summary judgment, and the trial

court granted Pima County’s motion. On appeal from that judgment, the Trust argues the




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Ordinance is preempted by state statute and results in an unconstitutional taking of its

property.

¶4            Preliminarily, Pima County argues the Trust’s claims are barred by its failure

to seek a variance from the board of adjustment. The trial court did not address the Trust’s

claim that the Ordinance is unconstitutionally vague because it concluded the Trust had not

exhausted available administrative remedies. But the court did address on the merits the

Trust’s claim that the Ordinance constitutes a regulatory taking of its property. We conclude

that the trial court correctly applied the doctrine of primary jurisdiction below, although

mislabeling it as the exhaustion doctrine.

¶5            “‘The exhaustion doctrine is concerned with the timing of judicial review of

administrative action.’” Campbell v. Mountain States Tel. & Tel. Co., 120 Ariz. 426, 429, 586

P.2d 987, 990 (App. 1978), quoting 3 Kenneth Culp Davis, Administrative Law Treatise

§ 20.01, at 57 (1958). In this case, however, the Trust has not challenged any administrative

action. The board of adjustment took no action because the Trust did not apply for a variance,

and the Trust does not challenge Pima County’s approval of its subdivision plats. Rather, the

issue presented to the trial court was whether the Trust should have been required to seek a

variance before challenging the Ordinance in court. This is a question of primary jurisdiction.

“In contrast to the exhaustion of remedies doctrine, which governs when administrative action

is subject to judicial review, the doctrine of primary jurisdiction determines whether the court

or the agency should make the initial decision in a particular case.” Id. The “doctrine of


                                               3
primary jurisdiction is a discretionary rule created by the courts to effectuate the efficient

handling of cases in specialized areas where agency expertise may be useful.” Id. at 430, 586

P.2d at 991.

¶6             In Campbell, Division One of this court applied the principle set forth by the

United States Supreme Court in deciding issues of primary jurisdiction between federal

administrative agencies and the federal courts.

               “[I]n cases raising issues of fact not within the conventional
               experience of judges or cases requiring the exercise of
               administrative discretion, agencies created . . . for regulating the
               subject matter should not be passed over. . . . Uniformity and
               consistency in the regulation of business entrusted to a particular
               agency are secured, and the limited functions of review by the
               judiciary are more rationally exercised, by preliminary resort for
               ascertaining and interpreting the circumstances underlying legal
               issues to agencies that are better equipped than courts by
               specialization, by insight gained through experience, and by more
               flexible procedure.”

Id., quoting Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S. Ct. 492, 494,

96 L. Ed. 576, 582 (1952) (alteration in original). Given this principle, the trial court acted

within its discretion in exercising its jurisdiction to hear some, but not all, of the Trust’s

claims.

¶7             Among its other powers, the board of adjustment is specifically empowered to

interpret zoning ordinances “when the meaning of any word, phrase or section is in doubt.”

A.R.S. § 11-807(B)(1). Given this express statutory authority, we agree with the trial court




                                                4
that the board should have an opportunity to interpret the Ordinance before any judicial

inquiry into its alleged vagueness.

¶8            The board is also empowered to “[a]llow a variance from the terms of the

ordinance when, owing to peculiar conditions, a strict interpretation would work an

unnecessary hardship, if in granting such variance the general intent and purposes of the

zoning ordinance will be preserved.” A.R.S. § 11-807(B)(2). The Trust has not argued that

it should be entitled to a variance. Indeed, there is no indication in the record that a strict

interpretation of the Ordinance would cause the Trust to suffer an unnecessary hardship or

that a variance could be granted while preserving the intent and purposes of the Ordinance.

Because the Trust’s contentions are general and not based on its particular circumstances, the

board’s expertise and development of a factual record are not necessary to deciding the purely

legal issues presented by the Trust’s preemption and Fifth Amendment claims. Therefore, we

conclude the trial court did not abuse its discretion by addressing whether the Ordinance is

preempted or constitutes a regulatory taking. We also review these issues.

¶9            The Trust first contends that the Arizona Native Plant Act, A.R.S. §§ 3-901

through 3-934 (the “Act”), preempts Pima County’s Ordinance. We consider this issue de

novo. See City of Tucson v. Rineer, 193 Ariz. 160, 971 P.2d 207 (App. 1998). When an issue

affects both local and statewide interests, both the locality and the state may enact relevant

laws. See Babe’s Cabaret v. City of Scottsdale, 197 Ariz. 98, 3 P.3d 1018 (App. 1999). A

state law only preempts conflicting local ordinances when the subject matter of the legislation


                                              5
is of statewide concern and the state has appropriated the field. See Winkle v. City of Tucson,

190 Ariz. 413, 949 P.2d 502 (1997). The existence of a preemptive policy must be clear.

“Absent a clear manifestation of legislative intent to preclude local control, there is no

preemption.” Babe’s Cabaret, 197 Ariz. 98, ¶ 11, 3 P.3d at 1022. And, to be preempted, a

municipal ordinance must actually conflict with governing state law. “‘Mere commonality

of some aspect of subject matter is insufficient . . . .’” Id., quoting City of Prescott v. Town

of Chino Valley, 163 Ariz. 608, 616, 790 P.2d 263, 271 (App. 1989), vacated on other

grounds, 166 Ariz. 480, 803 P.2d 891 (1990).

¶10           In this case, the legislature has not manifested a clear intent to preclude local

control over native-plant preservation. In fact, it has done the opposite. The Act expressly

provides that “[t]he board of supervisors of each county is authorized to adopt and enforce

ordinances not in conflict with law for the preservation of protected groups of plants.” A.R.S.

§ 3-914. When a statute recognizes that there may be local legislation on the same subject

matter, no inference of preemption is warranted. See Rineer, 193 Ariz. 160, ¶ 8, 971 P.2d at

210.

¶11           The Trust contends, however, that § 3-914 actually manifests the legislature’s

intent to preclude or limit local regulation on the subject. It argues that, as a property owner,

it has a common law or natural law right to destroy plants on its own property, that the Act

“confirms” this right by not prohibiting destruction on private property, and that, because the




                                               6
Ordinance prohibits destruction in certain circumstances, it conflicts with “the law.”

Therefore, it argues, § 3-914 actually invalidates the Ordinance.

¶12           We reject this argument. Not only does the plain language of § 3-914 authorize

county ordinances not in conflict with the Act, but Pima County is also empowered to enact

zoning ordinances that restrict common law property rights. A.R.S. § 11-802; see also

Sandblom v. Corbin, 125 Ariz. 178, 184, 608 P.2d 317, 323 (App. 1980) (governmental body

has authority to act “in derogation of common law property rights” through zoning ordinances

adopted in compliance with procedural prerequisites). The Ordinance does not conflict with

“the law” simply because it is a zoning ordinance, and the Trust has not argued that the

adoption of the Ordinance was procedurally flawed. Nor is it important, as the Trust

contends, that the Act itself is not a zoning enabling act, because Pima County’s zoning

authority does not emanate from the Act. See id. Although the Act does not prevent the

destruction of native plants on private property, neither does it confirm or confer an

inalienable right to do so.

¶13           Moreover, the Ordinance does not actually conflict with the Act. To conflict

under a preemption analysis, a municipal ordinance must be incapable of “peaceful

coexistence” with state legislation. See City of Prescott, 163 Ariz. at 616, 790 P.2d at 271.

In other words, a conflict exists only where a statute and ordinance are mutually exclusive,

so that compliance with both is impossible. See Babe’s Cabaret. That is not the case here,

and the Trust does not argue otherwise. It asserts only that the Ordinance is more restrictive


                                              7
than the Act. Although we agree with that assertion, we reject the Trust’s conclusion that,

therefore, the Act and the Ordinance conflict. Arizona courts have long held that, where the

state has not appropriated the field, local ordinances do not conflict with state law simply

because they are more restrictive. See City of Phoenix v. Breuninger, 50 Ariz. 372, 72 P.2d

580 (1937); City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 164 P.2d 598 (1945);

Rineer, 193 Ariz. 160, 971 P.2d 207; see also Babe’s Cabaret.

¶14           The Trust relies on legislative history to argue that the language used in § 3-914,

authorizing ordinances “not in conflict with law,” does not permit ordinances to be more

restrictive than the Act. It notes that the Arizona senate rejected a proposed amendment to

Senate Bill 1086 that would have changed the proposed language of § 3-914 to read: “County

boards of supervisors and governing bodies of incorporated cities and towns of this state may

adopt and enforce ordinances to preserve protected groups of plants provided such ordinances

are equal to or more stringent than the provisions of this chapter.” See S. 1086, 39th Leg., 1st

Reg. Sess. (Ariz. 1989); Natural Resources and Agriculture Comm., 39th Leg., Senate

Amendments to S. 1086, 1st Reg. Sess., at 3 (1989). The Trust asserts that, by not passing the

amendment, the legislature “categorically considered and rejected” the possibility that county

ordinances could be more restrictive than the Act.

¶15           We are unable to make the inference the Trust urges merely from the

legislature’s failure to adopt the proposed language change. Our conclusion is bolstered by

the fact that the legislature described the purposes and policies behind the Act as to:


                                               8
                     1. Promote awareness of the uniqueness of native Arizona
              plants and the potential for their preservation and salvage.

                      2. Encourage the salvage of native Arizona plants to the
              greatest extent feasible by preserving their existence through and
              after the process of real estate development.

                     3. Protect native Arizona plants from vandalism, theft,
              over depletion and unnecessary destruction.

                     4. Promote the conservation of native Arizona plants.

1989 Ariz. Sess. Laws, ch. 294, § 2. Pima County’s ordinance is consistent with these stated

purposes.

¶16           Next, we hold the Ordinance is not a regulatory taking of the Trust’s property.

The Trust argues that the Ordinance is invalid on its face under Palazzolo v. Rhode Island,

533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001), as a taking, and Dolan v. City of

Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), as an exaction. We review

the constitutionality of a zoning ordinance de novo. See Little v. All Phoenix S. Cmty. Mental

Health Ctr., Inc., 186 Ariz. 97, 919 P.2d 1368 (App. 1995).

¶17           “The Takings Clause of the Fifth Amendment, applicable to the States by the

Fourteenth Amendment, prohibits the government from taking private property for public use

without just compensation. . . . [A] regulation which ‘denies all economically beneficial or

productive use of land’ will require compensation under the Takings Clause.” Palazzolo, 533

U.S. at 617, 121 S. Ct. at 2457, 150 L. Ed. 2d at 607, quoting Lucas v. S.C. Coastal Council,

505 U.S. 1003, 1015, 112 S. Ct. 2886, 2893, 120 L. Ed. 2d 798, 813 (1992) (internal citations


                                              9
omitted). Article II, § 17 of the Arizona Constitution provides like protection. See Ranch 57

v. City of Yuma, 152 Ariz. 218, 731 P.2d 113 (App. 1986) (finding reasonable use test

articulated by Arizona Supreme Court in City of Phoenix v. Fehlner, 90 Ariz. 13, 363 P.2d

607 (1961), consistent with federal constitutional requirements). “Where a regulation places

limitations on land that fall short of eliminating all economically beneficial use, a taking

nonetheless may have occurred, depending on a complex of factors,” Palazzolo, 533 U.S. at

617, 121 S. Ct. at 2457, 150 L. Ed. 2d at 607, which are articulated in Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631

(1978).

¶18           We address only whether the Trust has been deprived of all economically

beneficial use of its property.1 It has not presented a clear argument under the Penn Central

factors, and, because it presented only a facial challenge to the Ordinance below, the record

necessary for an analysis of those factors has not been developed. See Lucas, 505 U.S. at

1015, 112 S. Ct. at 2893, 120 L. Ed. 2d at 812-13 (while categorical treatment appropriate

where regulation denies all economically beneficial use of land, analysis under Penn Central

requires factual inquiry).



       1
        Within its Takings Clause argument, the Trust also states that the monitoring
provision of the Ordinance must be struck down “as a regulatory taking, as an involuntary
servitude, or as a disguised development fee.” The Trust does not elaborate, however, and
it is unclear if the Trust intends by this statement to advance an argument beyond its
assertions under Palazzolo and Dolan, which we address below. To the extent this is a
separate argument, the Trust cites no authority for it; therefore, we do not consider it.

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¶19           The Trust concedes that it has not been deprived of all economically beneficial

use of its land if each of the two parcels is considered as a whole. Indeed, the Trust’s plans

include developing nineteen lots on the 20.3 acres in Critter Land I and 148 lots on the 154

acres of Critter Land II. It does not allege that the Ordinance has changed the existing zoning

classifications, the number of lots allowed on each parcel, or the type or number of structures

each lot will support under those classifications. Rather, it alleges only that it has been

deprived of all economically beneficial use of that portion of Critter Land II, approximately

thirty percent, that it designated as natural open space in order to comply with the Ordinance.

It argues Palazzolo supports its contention that we must consider this thirty-percent portion

in isolation for purposes of our analysis under the Takings Clause. We disagree.

¶20           The plaintiff in Palazzolo owned property near the Rhode Island coast. The

bulk of his property was designated as coastal wetlands, which would have required

substantial filling in order to support any significant structure on the portion of the property

so designated. Applicable regulations prohibited filling the property without a “special

permit” from the Rhode Island Coastal Resources Management Council, which had refused

plaintiff’s request. A small portion of the property (the “upland” portion), however, could

have supported at least one residential structure without any fill. Because the plaintiff was

able to build a residential structure of significant value on this portion of the property, the

Court affirmed the trial court’s determination that the plaintiff had not been deprived of all

beneficial use of his property. The plaintiff argued that, because the upland parcel was


                                              11
distinct from the wetlands portions of his land, he should have been permitted to assert a

deprivation limited to the latter. But the Court did not consider this argument because it had

not been raised below. 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592.

¶21            We assume the Trust bases its similar argument, which it did raise below, on

the Court’s recognition in Palazzolo that it has elsewhere “expressed discomfort” with the

“rule” it set forth in earlier cases that “the extent of deprivation effected by a regulatory action

is measured against the value of the parcel as a whole.” See Palazzolo, 533 U.S. at 631, 121

S. Ct. at 2465, 150 L. Ed. 2d at 616. However, despite its expressed “discomfort,” the

Supreme Court nonetheless recognized and applied that “rule” in Palazzolo, and we apply it

here. Moreover, the Trust has cited no case applying to a similar regulation the alternative

analysis they urge us to employ here.

¶22            The only other case the Trust has cited in support of its argument is readily

distinguishable. In Corrigan v. City of Scottsdale, 149 Ariz. 553, 720 P.2d 528 (App. 1985),

vacated on other grounds, 149 Ariz. 538, 720 P.2d 513 (1986), a city zoning ordinance

defined a perimeter within which no development could occur. The ordinance divided the

plaintiff’s contiguous property into two separate zones. All land within the “no development”

area was to be used solely for conservation of open space and legally secured for such

conservation by easement or dedication. We have no similar circumstance here. Further, in

Corrigan the city had recognized that compensation was required and had awarded property

owners “density credits” based on the amount of each owner’s land that fell within the


                                                12
conservation zone. The court determined that the density credits there did not constitute just

compensation. See id.

¶23           Neither Corrigan nor Palazzolo supports the Trust’s contention that we should

consider only the thirty-percent portion of land set aside for natural open space in determining

whether it has been deprived of all economically beneficial use of its land. When each of the

two parcels is viewed as a whole, the Trust clearly is able to make beneficial use of its land,

and we therefore conclude no regulatory taking has occurred.

¶24           Finally, the Trust argues that the Ordinance is an invalid exaction under Dolan.

In Dolan, the Supreme Court recognized that, “[u]nder the well-settled doctrine of

‘unconstitutional conditions,’ the government may not require a person to give up a

constitutional right . . . in exchange for a discretionary benefit conferred by the government.”

512 U.S. at 385, 114 S. Ct. at 2317, 129 L. Ed. 2d at 316. In Dolan, the plaintiff had applied

for a permit to enlarge her store and expand a paved parking area. The city conditioned the

permit on the plaintiff’s dedication of portions of her property for public use. The Court

found that, for such a condition to be valid, there must be an “essential nexus” between the

city’s legitimate interest and the anticipated effects of development. Id. at 386-87, 114 S. Ct.

at 2317-18, 129 L. Ed. 2d at 316.

¶25           The Arizona Supreme Court, however, has held that “Dolan applies to ‘a

[municipality’s] adjudicative decision to impose a condition tailored to the particular

circumstances of an individual case’ but not to ‘a generally applicable legislative decision.’”


                                              13
GST Tucson Lightwave, Inc. v. City of Tucson, 190 Ariz. 478, 486, 949 P.2d 971, 979 (App.

1997), quoting Home Builders Ass’n of Cent. Ariz. v. City of Scottsdale, 187 Ariz. 479, 486,

930 P.2d 993, 1000 (1997). Further, unlike Dolan, this case does not involve any required

dedication for public use. The Ordinance does not prohibit the Trust from exercising its right

to keep others off its property. We find the requirements set forth in Dolan inapplicable to

this case.

¶26           The judgment of the trial court is affirmed.



                                                  __________________________________
                                                  M. JAN FLÓREZ, Judge

CONCURRING:



_______________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge



_______________________________________
JOSEPH W. HOWARD, Judge




                                             14
