NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c ), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

U

- HAUL CO. OF ARIZONA, an Arizona corporation; FREIGHT SALES, INC., an Arizona corporation dba AUDIO EXPRESS; and EDWARD SANTACRUZ, as Trustee of the Edward Santacruz and Nancy Santacruz Revocable Trust dated 10/27/94

, Plaintiff s /Appellant s ,

v.

CITY OF TEMPE, an Arizona municipal corporation; EL FENIX, LLC, an Arizona limited liability company; EL FENIX II, LLC, an Arizona limited liability company

, Defendant s /Appellee s

.

No. 1 CA

- CV 13

- 0073

Appeal from the Superior Court in Maricopa County No. CV2011

- 008946 The Honorable George H. Foster

, Judge

AFFIRMED

COUNSEL

BRYAN CAVE LLP , Phoenix By Steven A. Hirsch, Stanley B. Lutz Counsel for Plaintiff/Appellant2 Tempe City Attorney’s Office

, Tempe By Judith R. Baumann, Catherine M. Bowman, Clarence E. Matherson, Jr. C ounsel for Defendant/Appellee City of Tempe

Gammage & Burnham, P.L.C., Phoenix By Richard K. Mahrle Counsel for Defendants/Appellees El Fenix

MEMORANDUM DECISION

Judge Jon W. Thompson deliver ed the decision of the Court, in which Presiding Judge Andrew W. Gould, and Judge Peter B. Swann joined.

T H O M P S O N
, Judge:

¶1 In this appeal from a statutory special action, plaintiffs/appellants U

- Haul Co. of Arizon a, Freight Sales, Inc. dba as Audio Express, and Edward Santacruz (collectively A ppellants ) appeal from the superior court’s dec ision in favor of defendants/appellees City of Tempe ( the City )

, and El Fenix, LLC and El Fenix II (collectively the El
Fenix entities ) . The court found that the City did not act in an arbitrary or capricious manner or abuse its discretion when the Tempe City Council

approv ed a rezoning application , a General Plan Amendment

, and a Pl anned Area Development (PAD ) O verlay, dismiss e d two other counts alleging the City violated the gift clause of the Arizona Constitution and violated Arizona Revised Statutes (A.R.S. ) § 9

- 402 (2008) , which requires cities and towns to seek b ids before selling any property, and concluded that the City’s approvals conformed to the General Plan. For the following reasons, we affirm

.

FACTS AND PROCEDURAL HISTORY

¶2 U

- Haul Co. and Audio Express own and operate business es on adjoining parcels north of property owned by the El Fenix entities on Scottsdale Road in Tempe. 1 South of and adjoining the El Fenix property

1 Santacruz is the Trustee of the Edward Santacruz and Nancy Santacruz Revocable Trust dated 10/27/94, which owns the property on which Freight Sales, Inc operates Audio Express.U

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Decision of the Court

3 is a sliver of land owned by the City located alon g the banks of Tempe Town Lake ( the Sliver Parcel )

. The El Fenix property and the Sliver Parcel compri se the Hayden Harbor Property.

¶3 In October 2010, the El Fenix entities applied for amendments to the City’s Zoning Map and General Plan, as well as a PAD overlay , in anticipation of developi ng seven high

- density and mixed

- use towers on the property

. The application incorporated the Sliver Parcel into the proposed development , and t he City of Tempe, as owner of the Sliver Parcel, was a co

- applicant. U

- Haul and Audio Express filed a legal protest against the project. 2 They raised concerns about increased traffic congestion along Scottsdale Road adjacent to their properties and claimed they would be subject to particul arized harm because their property already suffered from extreme traffic congestion and vehicle stacking as well as impaired access from Scottsdale Road , in that vehicles could make only a right turn into their premises and a right turn exiting their premises traveling south and could not access the location at all traveling north

. They further claimed that the project woul d impair their historical ingress and egress over the Fenix property to reach a signalized intersection south of their property at Playa del Norte and Scottsdale Road , noting that they had proposed they be given a perpetual easement over the El Fenix

p roperty, but that the El Fenix entities had not agreed.

¶4 T he Development Review Commission held public hearings on January 25, 2011 and February 22, 2011 , and t he Tempe City Council held public hearings on March 10, 2011, and March 24, 2011

. U

- Haul and Audio Express appeared and testified at each hearing. T h ey requested that the City require as a condition of approval that the El Fenix entities give U

- Haul and Audio Express a permanent easement to allow access to their properties from the Playa del Norte intersection. The Mayor expressed concern that such a condition would convey a gift of value

w ithout compensation to the City in violation of the gift claus e of the
Arizona Constitution. The traffic engineer for El Fenix entities opined that the driveway U

- Haul was seeking would create a potential safety haz ard on the property

. U

- Haul asserted that granting such a condition was appropriate for the safety of th e public; however, the Mayor expressed the view that the benefit sought was more for the convenience of the businesses north of the project than it was for public safety.

2 When a legal protest is filed, a zoning map amendment must be passed by a three

- fourths vote of the Tempe City Council. Tempe Zoning & Dev. Code § 6

- 502(C).U

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Decision of the Court

4 ¶5 On March 24, 2011 , the Tempe City Council, by a 7

- 0 vote, adopted Resolution No. 2011.06, ame nding the City’s General Plan with respect to the Hayden Harbor Property from open space to mixed

- use high density and passed O rdinance No. 2011.05 amending the Zoning
M ap to designate the Hayden Harbor Property as a Mixed

- U se H igh Density District with a Planned Area Development Overlay ( collectively the M arch 2011 Development Approvals )

. The City Council imposed certain conditions on the project, but did not impose a requirement that U

Haul and Audio Express be given an easement across the El Fenix

prope rty.

¶6 Appellants filed a special action pursuant to A.R.S. § 9

- 462.06(K) (2008) seeking review of the City’s decision. Appellants ’ four

count complaint claimed that the City’s decision was arbitrary, capri cious and an abuse of discretio n ; that the City had included the Sliver Parcel in the project and bestowed on the E l Fenix entities benefits in the form of tax credits , rebates

, and waivers arising from a Development and Disposition Agreement (DDA ) with Playa D el Norte, L.L.C., the El Fenix

ent ities ’ predecessor developer, and that such benefits constitute d illegal subsidies under the Gift Clause of the Arizona Constitution ; that by allowing the Sliver Parcel to be incorporated into the project, the City had transferred the Sliver Parcel without competitive biddin g in violation of
A.R.S. § 9

- 402 ; and that the effect of the City’s adoption of Resolution No. 2011.06 and Ordinance No. 2011.05 was a compensable regulato ry taking of their properties. Appellants sought an injunction to enjoin enforcem ent of the resolution and ordinance.

¶7 T he City filed a motion to dismiss Appellants ’ claims for violation of the Gift Clause and for failure to ob tain competitive bidding before transferring the Sliver Parcel , asserting that the claims were moot or not ripe for adjudication. The City argued that the complained

- of benefits in the Playa DDA expired in 2005 by the terms of the DDA itself

, so any promises of benefits in that agreement were null and void , and that the Sliver Parcel could not be the s ubject of a Gift Clause violation because the Ci ty of Tempe still owned the pro p e rty

. Tempe also argued that

, because the Sliver Parcel was still owned by the City

, Appellants ’ claim that the City had transferred it without competitive bidding failed. Ap pellants responded that the status of the b enefits under the Playa DDA

was not dispositive and that the actions of the City i n allowing the Sliver Parcel to be rezoned in support of the project without receiving comparable consideration supported the claim for a violation of the Gift Clause. Appellants further argued that in allowing the Sliver Parcel to be
inc orporated into the project, the City effectively precluded complianceU

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Decision of the Court

5 with the fair bidding requirement. The court granted the City ’s partial
motio n to dismiss, finding that the counts were not ripe for adjudication.

¶8 The parties submitted briefs on Appellants ’ claim that the City acted arbitrarily. Appellants argued among other things, that City acted improperly by being a co

- applicant with the El Fenix entities

. Appellants asserted that the project could not proceed without t he Sliver Parcel, owned by the City

, and that the City therefore had to transfer the Sliver Parcel to the El Fenix entities or enter into a joint vent ure agreement , but did not. Appellants contended that the City acted as a co

applicant to avoid taking the necessary proper steps to transfer the property because they were problematic. Appellants argued that by approving the redevelopment plan and the zoning under these circumstances, the City abused its discretion. Appellants further argued that the City acted arbitrarily by not mitigating the adverse impacts the project would have on U

- Haul and Audio Express , particularly regarding increased traffic and lack of access to the Playa Del Norte intersection

, that the M arch 2011 Development Approvals did not conform to the City’s General Plan and did not consider the impact on the Salt River Ou t fall Interceptor , a regional pipeline running under a portion of the El Fenix
entities ’ property that transports was tewater to a treatment facility

, and that the City Council failed to make findings on the r ecord a s required by the Zoning Code.

¶9 The court rejected Appellants ’ arguments regardi ng the Sliver Parcel

, noting that the site plan w as conceptual and sub ject to change and concluding that the premise that the Sliver Parcel was necessary to the rezoning and to the project was not supported by any law or evidence. The court found that th e City Council’s decision not to impose an easement on the El Fenix entities for the benefit of Appellants was not an abuse of discretion , noting that the Council had considered the concerns regarding the traffic and recognized the negative impact, but had indicated an intent to address the concerns during the project development process. The court also found the Council had legitimate concerns regarding granting an easement from one private property owner to another private property owner without compensa tion. The

court rejected Appellants ’ claim that the rezoning did not conform to the General Plan , finding that the record s up ported the Council’s approval. The court noted, however, that the Council had not made fin dings on the record as required by the Temp e Zoning and Development Code, and ordered the Council to make the findings. The City Council made the findings and filed them with the court.U

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Decision of the Court

6 ¶10 The court denied Appellants ’ motion for new trial, and stayed any proceedings on Appellants ’ cl aim fo r a regulatory taking. The court’s judgment included language pursuant to Rule 54(b), Arizona Rules of Civil Procedure

. Appellants appealed. We have jurisdiction pursuant

to A.R.S. § 12

- 2101( A)(1) (Supp. 2013).

DISCUSSION

¶11 Appellants first argue that the trial court erred in dismissing their clai ms that Tempe violated the Gift Clause and the statutory requirements for the sale of property

.
¶12 We review a decision granting a motion to dismiss de novo. Coleman v. City of Mesa , 230 Ariz. 352, 356, ¶ 7, 284 P.3d 863, 867 (2012)

. W e accept as true the facts alleged in the complaint and will affirm the dismissal only if the plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. Fidelity Sec. Life In s. Co. v. State , 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998)

. We do not

, however, accept as true conclusions of law or unwarranted deductions of fact. Folk v. City of Phoenix , 27 Ariz. App. 146, 150, 551 P.2d 595, 599 (1976)

. We resolve reasonable inferences in favor of the plaintiff. McDonald v. City of
Prescott , 197 Ariz. 566, 567, ¶ 5, 5 P.2d 900, 901 (App. 2000)

. In reviewing the decision, w e may consider documents attached to the plea ding because such documents are not “outside the pleading” under Rule 12(b)(6), Arizona Rules of Civil Procedure

. Strategic Dev . & Contr., Inc. v.
7 th & Roosevelt Part ners, L.L.C.

, 224 Ariz. 60, 63, ¶ 10, 226 P.3d 1046, 1049 (App. 2010)

.
¶13 Appellants ’ Count II alleged that the March 2011 Development Approvals violated the Gift Clause of the Arizona Constitution because of tax credits, rebates, and waivers contained in the Playa DDA and because the Approva ls included the Sliver Parcel.

¶14 T he Arizona Constitution directs that no city, town, or municipality can “give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, company,

or corporation .” Ariz. Const. art. 9, § 7

. A government entity violates t he Gift Clause when it receives inadequate consideration for the expenditure of public funds such that the transaction constitutes a gift or subsidy to a private entity. Turken v. Gordon , 223 Ariz. 342, 349, ¶ 30, 224 P.3d 158, 165 (2010 )

.
¶15 Appellant s argue that they adequately stated a claim for a Gift Clause violation based on the inclusion of the Sliver Parcel in theU

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Decision of the Court

7 Mar ch 2011 Development Approvals. They contend that their complaint adequately stated that the Sliver Parcel was a necessary component of the development project and that the City of Tempe received no compensation or consideration from the El Fenix Entities for using the Sliver Parcel.

¶16 The Sliver Parcel has not, however, been used in the project.
A s alleged by Appe llants

, the Sliver Parcel is owned by the City of Tempe

. T hat ownership has not been altered by the rezoning of the parcel along with the El Fenix entities ’ property. Even if the Sliver Parcel is a necessary component of the project, 3 t he City has not a s yet transferred the Sliver Parcel to El Fenix entities

. There has as of yet been no expenditure or

conveyance by the City requiring consideration.

¶17 Appellants also contend that they stated a valid current claim for a G ift Clause violation based on tax credits, rebates, and waive rs contained in the Playa DDA. T hey argue that the court wrongly considered unsupported factual allegations that the Playa DDA was void and assert that the continuing validity of the DDA is irrelevant to whether the complain t adequately stated a claim

.
¶18 Appellants not only attached a copy of the Playa DDA to the complaint, but also expressly incorporat ed that document by reference. The court could therefore properly consider it , as it was not outside the pleadings

. See Strategic Dev. & Contr., Inc. , 224 Ariz. at 63, ¶ 10, 226 P.3d at 1049

. In Section 5.5.1 of t he Playa DDA

, the parties recognized that the development was economically feasible only by the City of Tempe waiving “fees for all planning and building plan che ck fees, excavating and grading fees, engineerin g fees, and building per mit fees

. ” In Section 5.5.2 the parties acknowledged that the development would be

econom ically fe a sible only by the City of Tempe granting “a sales tax rebate of the City’s share of construction sales taxes . . . and excise sales taxes.” Both sections limited the benefits “to projects for which the City issue[d] a building permit within twenty four (24) months of the eff ective date” of the agreement. The date of the agreement was August 21, 2003

. Appellants ’ complaint recognized that Playa did not develop the property. C onsequently

, any commitment to benefits in the form of tax

3 This assertion has been repeatedly refuted by El Fenix entities
, which has stated that the drawings used for the proceedings showing use of the Sliver Parcel were co nceptual only and that the project could proceed without the Sliver Parcel.U

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Decision of the Court

8 credits or fee waivers expired in August 2005 under the plain terms of the Playa DDA

. Therefore, App ellants could not maintain a claim based on the waivers or tax credits included in that agreement.

¶19 Appellants also argue that the court wrongly concluded that their claim that the City of Tempe violated A.R.S. § 9

- 402 was not ripe. That section provides that a city or town may sell or convey all or any part of its real or personal property, but must first issue a public invitation for bids. A.R.S. § 9

- 402(A), (B) ( 2008)

. Appellants contend the March 2011 Development Approvals effec tively transferred control of the Sliver Parcel to the El Fenix Entities without the City of Tempe having complied with the bid requirement. Appellants acknowledge th at the C ity of Temp e has not actually transferred the Sliver Parcel to the El Fenix entit ies . The Appellants assert though that the March 2011 Development Approvals have precluded fair bidding because the Sliver Parcel has been rendered useless to any potential bidder oth er than the El Fenix entities

.
¶20 Th e court properly found Appellant s’ claim to be premature.
Because t he City of Tempe has not sold or conveyed the Sliver Parcel , it cannot have violated a statute requiring bidding before a sale or

conveyance. What might be done with the Sliver Parcel in the future is speculation. At t his time, t he failure to invite bids on property prior to a sale or conveyance cannot be a violation when no sale or conveyance has occurred. 4

¶21 Appellants ask this court to remand the matter with directions allowing them to amend their complaint. Appell ant s’ claims of violation s of the Gift Clause and of § 9

- 402 are not susceptible to amendment. They are based either on a transfer of the Sliver Parcel

, which has not occurred

, or on benefits provided in the Playa DDA, whi ch have expired. Amendment under these circumstances would be futile.
See Bishop v. State , 172 Ariz. 472, 474

- 75, 837 P.2d 1207, 1209

- 10 (App. 1992) ( court does not abuse discretion in denying a motion to amend where amendment would be futile)

.

4 The City also argues that, as a Charter City, it is not subject to the requirements of A.R.S. § 9

- 402

. See City of Tucson v. Arizona Alpha of Sigma Alpha Epsilon, Inc. , 67 Ar iz. 330, 335, 195 P.2d 562, 565 (1948)

. Because we find that the statute is inapplicable because Tempe has not conveyed the Sliver Parcel, we do not address this alternative argument.U

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Decision of the Court

9 ¶22 Appellants assert several bases on which it argues that the Tempe City Council acted arbitrarily and capricious ly with respec t to the March 2011 Development Approvals.

¶23 In making zoning decision s , a municipal body acts in a quasi

- administrative and legislative role. Town of Paradise Valley v. Gulf Leisure Corp. , 27 Ariz. App. 600, 60 5, 557 P.2d 532 , 536 (1976)

. In reviewing such decisions, courts are limited to determining whether the decision is arbitrary or capricious, or an abuse of discretion. Murphy v. Town of Chino Valley , 163 Ariz. 571, 574, 789 P.2d 1072, 1075 (App. 1989)

. The reviewing court cannot substitute its opinion for that of the municipal body. Id

. If credible evidence supports the decision, the decision must be affirmed. Austin Shea (Arizona) 7 th St. & Van Buren, L.L.C . v. C ity of Phoenix , 213 Ariz

. 385, 392, ¶ 29, 142 P.3d 693, 670 (App. 2006)

.
¶24 Appellant s conte nd that the City improperly acted as a co

applicant with the El Fenix entities

. 5 They argu e that the project cannot be built without the Sliver Parcel, that the City was therefore required to transfer the Sliver Parcel to the El Fenix entities
, and that because the means of transferring the Sliver Parcel would run afoul of the Gift Clause and A.R.S. § 9

- 402 , the City acted as co

- applicant to allow the El Fenix
entities to obtain rezoning for the project

.
¶25 Appellants’ argument is based on the faulty premise that the Sliver Parcel was necessary to the project. Even if the parties intend that it become part of the development, the testimony before the C ity Council was clear that the development proposal at this stage is conceptual only. The representative for the El Fenix entities told the City Council that they were at the beginning of the planning process, that they were not sure what the site plan w ould be , and that as they moved forward they would determine where the buildings would be placed

. T he record does not

5 The City argues that Appellants have waived this issue by not
rai sing it before the City Council. See Englert v. Carondelet Health Network

, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 772 (App. 2000) ( appellate court generally do es not consider issues raised for the first time on appeal). Appellants, however, were not required to raise the matter before the City Council before challenging the ordinance in court. See Manning v. Reilly , 2 Ariz. App. 310, 313, 408 P.2d 414, 417 (App. 1965) (one need not exhaust administrative remedies to cha llenge an invalid zoning ordinance). Appellants did rais e the issue in superior court.U

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Decision of the Court

10 support the assertion that the project cannot proceed without the Sliver Parcel.

¶26 Furthermore, t he City still owns the Sliver Parcel, an d Appellants offer no authority to suggest that the City cannot apply to have its own property rezoned, whether it does so independently or in conjunction with another applicant.

¶27 Appellants further argue that the City acted arbitrarily and capriciously by failing to require the El Fenix entities to give them an

easement across the El Fenix property as a condition of approving the
M arch 2011 Development Approvals

. Appellants had raised concerns about increased traffic congestion on Scottsdale Road with cars stacking up in front of their properties. They sought to have permanent access across the El Fenix property to reach a traffic light at Playa Del Norte and Scottsdale Road south of Appellants’ property

. 6 The City Council did not impose the requeste d condition for an easement

. The Council did not abuse its discretion.

¶28 Section 6

- 601 of the Tempe Zoning and Development Code provides:

The decision

- making body may impose conditions on any approval . S uch conditions shall be designed to implement th e requirements of this Code, protect the public from potential adverse impacts from the proposed use or development, or to fulfill an identified need for public
services.

Under this provision, the City Council may impose conditions on approval but is not required to do so.

¶29 T he provision is intended to apply to protect the public from negative impacts from a development. Despite Appellants’ assertion that the City Council acted arbitrarily in not imposing the condition in light of the potential dras tic impact of the project on the traveling public, Appellants do not explain how the easement they requested would ease the anticipated traffic congestion or benefit any members of the public

6 Although A ppellants refer to being allowed “continued” access across the El Fenix property, they have no actual easement and have not asserted prescriptive rights.U

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Decision of the Court

11 other than their b usinesses and their customers. The Mayor reco gnized this discrepancy, noting that traffic studies showed only twenty or thirty vehicles entering and exiting the U

- Haul property per day, expressing skepticism that the easement would change the traffic congestion in any way, and concluding that the req uested easement would provide value to
U

- Haul and Audio Express only. Both t he Mayor and another councilman expressed concern about imposing a condition on one private party for the ben efit of another private party. The Mayor also suggested that a more

a ppropriate time to address and resolve traffic issues would be at a future date when an actual design for construction on the site was being prepared.

¶30 In addition , t he traffic consultant for the El Fenix entities acknowledged that traffic was congested a nd that the development would have a major impact on future tr affic conditions at three inter sections in the area

, including the intersection at Playa Del Norte and Scottsdale Road. That consultant also testified

, however

, that the easement requested by Appellants would create a potential safety hazard because vehicles traveling on the proposed easement would have to join an existing q ueue at the development’s driveway waiting for the light at the
intersection.

¶31 The reco rd here contains evidence to support the City Council’s decision to not impose an easement on El Fenix entities for the benefit of Appellants . The City therefore did not abuse its discretion in denying Appellants’ request.

¶32 Appellants also argue that the City Council failed to consider the impact of the proposed development on the Salt River Outfall (SRO) Interceptor , a pipeline located on the H ayden Harbor Property and

oper ated by the Subregional Operatin g Group (SROG). This claim lacks
merit.

¶33 The Mar ch 2011 Development Approvals included seven conditions, one of which provided:

Prior to final acceptance of the re quest to relocate the Salt River Outfall (SRO) Interceptor and its easement, located near the northwest portion of the property, the Sub

- Regional Operating Group (SROG) Advisory Committee of the Joint Municipal Water Reclamation System shall review the

req uest to make a determination of approval on any changes related to the interceptor. This approval shall be completedU

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Decision of the Court

12 prior to issuance of any building permits which may affect the area within the easement of the SRO Interceptor.

Clearly, the City Counci l considered the SR O Interceptor and addressed

any concerns by requiring approval by SROG before the City will issue building permits on any project

.
¶34 Appellants also argue that the City Council abused its discretion because it failed to make required fin dings under the City’s Zoning and Development Code. Under Section 6

- 502(B), “findings of fact justifying the decision shall be noted for the record.” Tempe Zoning & Dev. Code § 6

- 502(B)

. A z oning ordinance enacted without substantial compliance with statutory requirements is void. Manning v. Reilly , 2 Ariz. App. 310, 313, 408 P.2d 414, 417 (App. 1965)

.
¶35 The City Council here failed to make finding s at the time of its decision. The Council did, however, comply with the substantive requirements of § 6

- 502. The Council conducted public hearings, gave the applicants the opportunity to explain the project, gave the protestors the opportunity to explain their opposition, applied the appropriate standard requiring a three

- fourths majority for approval because of the legal protest, and rendered its decision. Tempe Zoning & Dev. Code 6

- 502(A), (B), (C). Although the City Council failed to make the required fin dings for the record at the time, it has since done so , and Appellants have raised no argument finding fault with those findings. Given the Council’s compliance with the procedural requirements in the conduct of the hearings, we view the failure to make its findings at the time of the hearin g to be a technical failure, now remedied, that does not require finding the ordinance void.

¶36 Appellants also argue that the March 11 Development Approvals do not comply with the City’s General Plan and therefore the City Council abused its discretion in adopting them. They also contend that the rezoning violates the policies and intent behind the General Plan.

¶37 The Tempe Zoning and Development Code provides that no General Plan Amendment shall be approved unless it substantially conforms to the followin g criteria:

1. Appropriate short and long term public benefits;

2. Mitigate impacts on land use, water infrastructure of transportation;U

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Decision of the Court

13 3. Helps the city attain applicable objectives of the General Plan;

4. Provides rights

- of

- way, transit facilities, open space, recreational amenities or public art;

5. Potentially negative influences are mitigated and deemed acceptable by the City Council; and

6. Ju dgment of the appropriateness of the amendment with regard to market demands, and impacts on surroundi ng area, service, fiscal, traffic, historic properties, utilities and public facilities.

Tempe Zoning & Dev. Code § 6

- 302(D). Without elaborating, Appellants assert that the March 2011 Development Approvals d o not substantially conform to any of these criteria.

¶38 A ccording to the development plan presented to the Council , the completed project , on land currently vacant, would sti mulate the economy of the area. A development including office space, shops,

restaurants , and entertainment facilities would increase demand for commercial services on and off

- site, increasing the City’s tax base

. The project intended to provide access to the open space and recreational
amenities of Town Lake and to create a garden

- like environme nt with pockets of open space. These features conform to the stated criteria.

¶39 In addition, the Tempe General Plan 2030, adopted in 2003, projected that the area i n question would be mixed

- use. The Staff Summary Report (SSR ) for the City Council’s March 24 hearing not ed that the request ed amendments would more accurately align the properties intended for development from those properties intended to be open

space, con sistent with the General Plan. In explaining why the rezoning would be in the public intere st and why it would conform to and facilitate th e General Plan, the SSR stated that the rezoning would be consistent with the General Plan Land Use maps and provide the property with necessary infrastructure and improvements that benefit Tempe’s goal for development around Town Lake. In recommending approval of the General Plan Amendment, Zoning Amendment, and PAD Overlay, the SSR expressly found that t he request met the criteria. Specifically, the SSR found that the project met t he Projected Land U se a nd Projected Residential Density for the site under the General Plan a nd that the Zoning Amendment was compat ible with similar projects around the Tempe Lake vicinity.U

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Decision of the Court

14 ¶40 The record contained adequate evidence from which the City Council could conclude that the requested amendments were consistent with the General Plan. This court is not in a position to second guess the City in making such a decision. See Murphy , 163 Ariz. at 574, 789 P.2d at 1075

.
¶41 Appellants also assert that , because the project was no t intended to begin vertical construction until 2015, the City Council’s decision violated a development polic y for the Rio Salado Specific Area Plan , which provid ed :
Land speculation is strongly discouraged. Developers should be prepared to begin subst antial (i.e. vertical) construction of at least the first phase of any project within two years of Council approval.

The City Council imposed a condition on the El Fenix entities requiring them to complete a building permit application by February 24, 20 15, with the intent to commence construction, or the zoning co uld revert back to

open space. The Council thereby allowed the El Fenix entities two years longer than the policy indicates.

¶42 The policy does not impose a mandatory deadline requiring developers to build within two years ; rather it states that applicants “should be prepared” to build within two years . The policy also does not constrain the City Council from modifying the deadline. The Council her e was advised that the Rio Salado Specific Area Plan applied, as evidenced by a copy of the policies being included in the SSR s for both the March 10 and March 24 hea rings before the City Council. Although it does not appear that the policies were discuss ed at either hearing, t he Mayor noted in another context that funding for the project in the existing economy would be difficult

. H e also noted that the owners were attempting to bring the property out of a bad financing situation invo lving bankruptcy

so they could move forward toward development, which would benefit the community. We cannot find that the City Council’s decision to allow time in excess of the Rio Salado S pecific Area Plan policies was an abuse of discretion.

CONCLUSION

¶43 We affirm the sup erior court’s dismissal of Appellants’ claims for violation of the Gifts Clause and for failing to invite bids for the sale of the Sliver Parcel. Appellants ’ claims fail because t he City did not transfer the property and because the alleged gifts under th e Playa DDAU

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Decision of the Court

15 have expired. We find no abuse of discretion in the City Council’s approval of the General Plan Amendment, the Zoning Amendment, and the PDA Overlay. We further find that the record supports the conclusion that the March 2011 Development Appr ovals conform to the General Plan. The superior court’s ruling is affirmed.