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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MBA DEVELOPMENT PARTNERS LLC, 

Plaintiff/Appellant,

v.

CITY OF SCOTTSDALE, et al.,

Defendants/Appellees.

No. 1 CA-CV 19-0309 

Appeal from the Superior Court in Maricopa County

Nos. CV 2017-015460

LC 2017-000454-001

 (Consolidated)

The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Jennings, Strouss & Salmon, PLC, Phoenix

By John J. Egbert

Co-Counsel for Plaintiff/Appellant

Davidson & Kaffer, PLLC, Scottsdale

By Frederick E. Davidson, Chad R. Kaffer

Co-Counsel for Plaintiff Appellant

FILED 8-25-2020
2

Scottsdale City Attorney’s Office, Scottsdale

By Eric C. Anderson, Stephanie Heizer

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Jennifer B. Campbell1 joined and Judge D. Steven Williams 

dissented.

B R O W N, Judge:

MBA Development Partners, LLC (“MBA”) appeals the 

superior court’s judgment affirming a decision of the City of Scottsdale 

Board of Adjustment (“Board”), which upheld the Zoning Administrator’s

(“Administrator”) interpretation of a 1994 zoning ordinance approving a 

planned development. Because the Administrator’s interpretation is the 

only reasonable reading of the ordinance, we affirm. 

BACKGROUND

MBA owns undeveloped real property (“Parcel 6”) in the 

Troon North development area of Scottsdale. That area surrounds the 

Troon North Golf Course and was originally part of a 2,500-acre master 

plan the City approved in the 1980s. In 1994, the Scottsdale City Council 

adopted a resolution amending the general plan to make technical changes 

to the land use plan map but maintained the original intent of the plan for 

the 55 acres of land surrounding the golf course. At the same time, the City 

Council adopted an ordinance changing the zoning from single family 

residential and dividing the land into six parcels, with future development, 

including resorts, conditioned upon various zoning stipulations. 

Stipulation 2 listed, among other things, the acreage, maximum density, 

and maximum unit counts for each parcel. Notably, though, the acreage 

listed in Stipulation 2 was incorrect on several of the parcels, and as most 

pertinent here, Parcel 6. The acreage for Parcel 6 was arguably correct on 

the City’s conceptual site plan, but not in Stipulation 2. The City Council 

1 Judge Jennifer B. Campbell replaces the Honorable Kenton D. Jones, 

who was originally assigned to this panel. Judge Campbell has read the 

briefs, reviewed the record, and watched the recording of the oral 

argument.
MBA v. SCOTTSDALE, et al.

Decision of the Court

3

was made aware of the incorrect figures, but nonetheless approved the 

zoning amendment with the incorrect acreages. 

Parcels 1 through 5 were essentially developed with single 

family residences, leaving the parcel at issue here, Parcel 6, the last 

undeveloped parcel of land. Stipulation 2 listed Parcel 6’s acreage as 1.49, 

rather than the actual 2.56,

2 and listed a maximum number of residential 

units as 22, which equates to 31 resort units.

3 In 2016, MBA acquired Parcel 

6. Later that year, MBA submitted a plan to the City’s Development Review 

Board for approval to build 64 resort units. As part of its initial review, City

staff asked for clarification as to how MBA calculated its proposed unit 

count. MBA clarified that it was basing its count on the total number of 

units that should still have been allowed under Stipulation 2 after taking 

into account the housing density implemented in Parcels 1 through 5, rather 

than Stipulation 2’s specific unit counts and density for Parcel 6 as drafted 

in 1994.

4 

2 The precise acreage of Parcel 6 continues to be a point of 

disagreement between the parties, but the actual acreage is ultimately 

immaterial to our decision. 

3 Residential units and resort units do not directly equate. The 

underlying zoning standards for the parcels provide that resort units 

require a minimum gross land area of 4,100 square feet and residential units 

require a minimum gross land area of 5,770 square feet. Though Stipulation 

2 allows the parcels to depart from these square footage requirements, the 

City Council still based Stipulation 2 on ratios from the underlying zoning.

Thus, the ratio of resort units to residential units can be rounded to 1.41, 

which is how the Administrator used and interpreted the ratio as being 1.41. 

However, a ratio of 1.43 is occasionally used; for example, the text of 

Stipulation 2, see infra ¶ 7, provides that 385 residential units equates to 550 

resort units, which can be rounded to a ratio of 1.43. City staff also 

interpreted the ratio as 1.43 in the first review comments of MBA’s 

proposed developments. In either case, 22 residential units can be rounded 

to 31 resort units (22 x 1.41 = 31.02; 22 x 1.43 = 31.46).

4 According to MBA’s calculations, Stipulation 2, see infra ¶ 7, simply 

provides the maximum number of residential units allowed among all the 

parcels. MBA determined that the number of units actually built on parcels 

1 through 5 equals 341 residential units, meaning there are 44 residential 

units remaining to reach the threshold of 385 residential units. MBA then 
MBA v. SCOTTSDALE, et al.

Decision of the Court

4

MBA continued through the review process for its proposed 

development, and City staff made no mention of the proposed unit count 

in the second review comments. By 2017, Troon North Association, the 

homeowners’ association for the development area, requested an 

interpretation of the zoning ordinance from the Administrator, seeking 

clarity as to the unit counts allowed on Parcel 6. In response, the 

Administrator issued a letter interpreting the ordinance to mean the 

maximum unit count allowed on Parcel 6, regardless of discrepancies

related to the actual acreage, was 22 units (or 31 resort units), as provided

in Stipulation 2. The Administrator discussed Stipulation 2 and its table in 

detail. He also accounted for the history of the land, the other relevant 

conditions for building on Parcel 6, and explained how the developments 

on parcels 1 through 5 factored into his conclusion. He concluded that 

Stipulation 2’s table “specifically indicates what the maximum densities for 

the 6 parcels are, including the maximum number of dwelling units[,] and 

Parcel 6 is currently allowed 22 dwelling units or 31 resort rooms”; thus, 

exceeding those densities would require approval by the City Council 

through a separate hearing process. 

MBA appealed the Administrator’s interpretation to the 

Board of Adjustment, and after a hearing in November 2017, the Board 

affirmed. Both Troon North Association and MBA challenged the Board’s 

decision by separately commencing special action proceedings in the 

superior court. The Association alleged that none of the units built on 

Parcel 6 could be resort units, and MBA asserted it should be allowed to 

build 48 resort units with 62 resort rooms.

5 The court consolidated the cases

and later dismissed the Association’s petition for lack of standing but 

allowed the Association to participate as amicus curiae. Following oral 

argument, the court affirmed the decision of the Board, explaining in part 

that (1) the zone change stipulations “set the maximum densities per parcel 

and the maximum units per parcel” with a mechanism for redistribution of 

densities subject to staff approval, and (2) read holistically, the plain

language of the ordinance is consistent with the Administrator’s 

multiplied the 44 residential units by the ratio of residential units to resort 

units (MBA used 1.43, see supra n.3). This results in 62.92 resort units, which 

MBA apparently rounded to 64 resort units in its initial proposal. 

5 MBA also alleged the Board abused its discretion by failing to 

consider MBA’s vested rights and the impact of the doctrine of equitable 

estoppel. Those issues have not been raised on appeal. 
MBA v. SCOTTSDALE, et al.

Decision of the Court

5

interpretation that the maximum number of resort units for Parcel 6 is 31, 

absent staff approval of a redistribution. MBA timely appealed. 

DISCUSSION

Our standard of review requires us to determine if the Board’s 

decision was arbitrary and capricious or an abuse of its discretion. Murphy 

v. Town of Chino Valley, 163 Ariz. 571, 574 (App. 1989). But insofar as we 

review issues of statutory interpretation, we review de novo and are free to 

draw our own legal conclusions. Id.

Stipulation 2 provides for zoning of all the parcels 

surrounding the golf course, including Parcel 6:

Maximum densities and dwelling unit counts shall be as 

indicated on the approved development plan except that in 

no case shall [the] unit count exceed 385 (for units which are 

not used or available as resort rooms) and 424 units maximum 

(of which at least 90 units shall be used as resort rooms) 

without a subsequent public hearing. The specific location of 

each parcel shall be determined at the time of site plan review.

Redistribution of the units is subject to maximum densities

and Project Coordination staff approval. All such requests 

shall include a revised master development plan and a 

revision to the table on page 2 indicating the parcels with the 

corresponding reduction/increase.

Parcel Gross Acres Zoning Proposed

DU/AC

Max.

DU/AC

Proposed 

# Units

Max.

# Units

1 14.68 R4-R HD 7/ac 7/ac 100 100

2 12.40 R4-R HD 8/ac 8/ac 100 100

3 10.20 R4-R HD 7/ac 7/ac 72 72

4 10.00 R4-R HD 10/ac 10/ac 99 99

5 3.42 R4-R HD 10/ac 10/ac 31 31

6 1.49 R4-R HD 15/ac 15/ac 22 22

Total 52.19 7.7/ac 424 385/424*

*The proposed unit count of 424 represents a mix of 

residential and resort units. The 385 unit maximum is the 

maximum allowed for residential units. If the residential 

units were all converted to resort units the maximum would 

be 550 units.
MBA v. SCOTTSDALE, et al.

Decision of the Court

6

We interpret the 1994 zoning ordinance using the “same rules 

and principles governing the construction of statutes,” with the primary 

goal of ascertaining and giving effect to the intent of the City Council. 

Abbott v. City of Tempe, 129 Ariz. 273, 275 (App. 1981). Intent is most clear 

from the ordinance’s plain language, considered in proper context. Glazer 

v. State (Glazer II), 244 Ariz. 612, 614, ¶¶ 9–10 (2018). To determine whether 

an ordinance is ambiguous, we look to whether it is open to multiple 

reasonable interpretations or whether its meaning is not evident after 

examining the context as a whole. Id. at ¶ 12. “If the [ordinance] is subject 

to only one reasonable interpretation, we apply it without further analysis,”

Glazer v. State (Glazer I), 237 Ariz. 160, 163, ¶ 12 (2015), unless the results are 

absurd or impossible. Bilke v. State, 206 Ariz. 462, 464, ¶ 11 (2003). 

Disagreement by the parties as to the meaning of an ordinance does not 

render it ambiguous. Glazer II, 244 Ariz. at 614, ¶ 12. Here, both MBA and 

the City argue the ordinance is unambiguous and can only be interpreted 

in the manner each party suggests. 

A. The Administrator’s Interpretation is Most Consistent with 

the Table

MBA’s primary argument that the Administrator’s

interpretation is incorrect is based on flawed assumptions about the acreage

and how the number of units was calculated under Stipulation 2. MBA 

argues the Administrator can and should plug in the actual acreage—which 

it now argues is 3.17—for Parcel 6, multiply that acreage by the maximum

dwelling units per acre of 15, and obtain a new maximum number of units. 

This argument relies on the theory that the maximum number of residential 

units, 22, is merely a product of multiplying the gross number of acres by 

the maximum acreage, and the density column containing 15 dwelling units 

per acre is the only fixed column.

6 While that appears to be the case on the 

6 To support this interpretation, at the Board hearing MBA provided 

testimony from a former senior planner for the City who was employed by 

the City at the time the ordinance was drafted. But because the ordinance 

is unambiguous, we have no reason to look to secondary factors such as this 

testimony. See Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 195, 

¶ 9 (2016) (“When a statute is ambiguous, we determine its meaning by 

considering secondary factors, such as the statute’s context, subject matter, 

historical background, effects and consequences, and spirit and purpose.”).

And because we view the Administrator’s interpretation as the only 

reasonable interpretation, we do not address MBA’s or the City’s 

alternative arguments relating to secondary statutory interpretation tools 
MBA v. SCOTTSDALE, et al.

Decision of the Court

7

surface, we cannot conclude the table in Stipulation 2 derives its numbers 

based solely on a math calculation.

Parcel 5 in particular illustrates that, though the numbers in 

the table correlate somewhat with multiplication, the totals are not direct 

results of the math. Thus, the City Council must have used multiple factors 

in choosing each parcel’s maximum densities rather than relying on a pure 

mathematical formula. But even if the table were based on such a formula, 

nothing in the plain language of Stipulation 2 empowers the Administrator 

to simply insert numbers and perform new calculations. And nothing in 

the table or in the text of Stipulation 2 indicates that density is the only fixed 

number in the table. See infra ¶¶ 15–16.

MBA argues the Administrator’s position cannot stand 

because it renders other numbers in Stipulation 2’s table as surplusage. But 

our charge is to avoid surplusage if possible; in the case of this ordinance, 

surplusage is impossible to avoid. See Ariz. State Univ. Bd. of Regents v. Ariz.

State Ret. Sys., 242 Ariz. 387, 389, ¶ 7 (App. 2017) (“We interpret statutes to 

avoid rendering ‘any of its language mere “surplusage”. . . .’” (emphasis 

added) (citation omitted)). If, as MBA suggests, the proper acreage were 

inserted into the table and multiplied by the maximum density per acre to 

yield a new maximum number of units, the listed maximum number of 

residential units, 22, would be surplusage. But if the ordinance is read asis, Parcel 6’s listed acreage is surplusage because it is incorrect. And under 

MBA’s multiplication-based interpretation, Parcel 5’s listed maximum 

density would also be surplusage, because the maximum number of units 

for that parcel and acreage do not allow the parcel to actually meet the listed 

maximum density. Accordingly, an analysis of what portions of the zoning 

ordinance may or may not be rendered surplusage is not a useful metric for 

us to analyze the ordinance.

Further, MBA’s interpretation would disregard the plain 

meaning of the word “maximum” used in Stipulation 2’s table. The number 

of units MBA seeks to build is substantially more than 22 residential or its 

corresponding 31 resort units, and thus it would violate the maximum of 

22/31 units listed in the table. By contrast, the Administrator interpreted 

the number of units allowed as the same as what the table listed—22 

dwelling units or 31 resort units. Because the table only sets maximums, 

based upon a finding of ambiguity. For the same reason, we do not consider 

earlier interpretations of the ordinance made in connection with 

development plans submitted by the prior owners of Parcel 6. 
MBA v. SCOTTSDALE, et al.

Decision of the Court

8

rather than minimums, there is no corresponding violation of the total 

number of dwelling units when the ordinance is interpreted as allowing 22 

dwelling units. Given the true acreage of Parcel 6, we acknowledge that the 

proposed density of 15 dwelling units per acre cannot be met; but because 

15 dwelling units per acre is a maximum, nothing in the table conflicts with 

allowing a lesser density.7 We do not read the table as being controlled 

solely by the maximum density or the maximum unit counts. Rather, we 

will attempt to harmonize as much of the table as possible, and reading the 

table as subject to both maximums is the only reasonable reading. 

The City Council that approved the ordinance clearly 

contemplated Parcel 6 having a maximum of 22 units; we find nothing 

absurd or impossible in an interpretation that is consistent with the 

maximum number of units on Parcel 6, plainly stated in Stipulation 2. As

long as our interpretation of the ordinance is not absurd or impossible, we 

will apply it. See State Tax Comm’n v. Television Servs., Inc., 108 Ariz. 236, 

239 (1972) (“Where the meaning of a statute does not lead to an 

impossibility or an absurdity such as could not have been contemplated by 

the Legislature, courts follow that meaning even though the result may be 

harsh, unjust, or a mistake in policy.”). Thus, the Administrator’s 

interpretation that Stipulation 2 only allows 22 units is the only reasonable 

reading of the table. 

B. The Administrator’s Interpretation is Consistent with the 

Text of Stipulation 2

MBA argues the Administrator’s interpretation is inconsistent 

with the text of Stipulation 2. First, MBA points to Stipulation 2’s statement 

that “[t]he specific location of each parcel shall be determined at the time of 

site plan review,” as indicating that parcel sizes would change. But this 

requires reading the word “location” as synonymous with the word “size.” 

Black’s Law Dictionary defines “location” as “[t]he specific place or position 

of a person or thing”; accordingly, it would be inappropriate to read the 

word “location” as indicating anything more than the specific site of the 

physical boundaries of the parcel. Location, Black’s Law Dictionary (11th 

ed. 2019). The drafters may have contemplated that the actual boundaries 

of each parcel could differ slightly on the ground in comparison to on 

paper, but this does not indicate that the drafters intended the gross acreage 

7 As written in Stipulation 2’s table, this is also true for Parcel 5.
MBA v. SCOTTSDALE, et al.

Decision of the Court

9

of the parcels to change. The fact that Parcel 6 could have a maximum of 

22 units does not render this allowance meaningless. 

Next, MBA points to Stipulation 2’s allowance for a 

“redistribution of units” as evidence that Parcel 6’s unit allocation could 

change. But this phrase does not indicate a possible wholesale departure 

from the table or Parcel 6’s maximums; it must be read in conjunction with 

the table. And indeed, this only allows changes in a specific condition—when 

there is to be redistribution among multiple parcels. Nothing in the record 

indicates redistribution was ever requested by the owner of any of the six 

parcels, and thus the redistribution provision has no applicability here. To 

be sure, the provision indicates that redistribution is subject to “maximum 

densities,” which could be read as an indication that the drafters of the 

ordinance viewed density as the most critical factor in Stipulation 2’s table. 

But the plain language only indicates that density is a critical factor in the 

case of redistribution; nothing in the text of Stipulation 2 requires, or even 

suggests, the inference that density is always the controlling factor in the 

development. Further, it is unclear which “maximum densities” this 

sentence is referring to, because the provision itself would violate the table 

in Stipulation 2, even if density were the fixed column in the table.

8 We do 

not view the distribution provision as dictating that maximum densities is

the fixed column in the table. 

Finally, MBA argues Stipulation 2’s statement that

“maximum densities and dwelling unit counts shall be as indicated on the 

approved development” means there is built-in flexibility to the ordinance. 

But this sentence fragment must be examined in context of the entire

sentence:

Maximum densities and dwelling unit counts shall be as 

indicated on the approved development plan except that in 

no case shall [the] unit count exceed 385 (for units which are 

8 If a redistribution were used to increase the unit count for a parcel, 

the increase would, by definition, violate the maximum density per acre set 

in the table. For example, the actual development on Parcel 1 is 86 units, 

but the maximum number of units allowed in the table is 100. So if the 

owner of Parcel 2 sought to increase the maximum unit count available (100 

units) by redistributing all or some of the 14 units from Parcel 1, Parcel 2’s 

new unit count could be anywhere from 101 to 114 units. But this would 

yield a density per acre of 8.1 at a minimum and 9.2 at a maximum, violating 

the table’s numbers. Thus, it is unclear how redistribution could be “subject 

to” the table’s maximum densities.
MBA v. SCOTTSDALE, et al.

Decision of the Court

10

not used or available as resort rooms) and 424 units maximum 

(of which at least 90 units shall be used as resort rooms) 

without a subsequent public hearing.

The sentence must also be read in conjunction with the rest of Stipulation 2; 

it allows densities and dwelling unit counts to change, but nothing in the 

plain language of the sentence allows departure from the maximums 

established elsewhere in the Stipulation. Therefore, the Administrator’s 

interpretation that 22 residential units (or 31 resort units) is the maximum 

allowed is not inconsistent with this sentence. MBA also argues this 

sentence establishes an express requirement that 90 units be developed as 

resort units and the Administrator’s interpretation reflects this 

requirement. But it is the present status of the parcels that eliminates this 

requirement; as the Administrator stated in his interpretation letter, “the 

originally-planned 90 resort units can no longer be achieved.” And to that 

end, it may well be that if Parcel 6 were the first site developed in the area, 

a different interpretation as to the maximum allowed unit counts would be 

reasonable. But because of the structure of this ordinance, the completed 

developments on Parcels 1 through 5 have, of course, affected Parcel 6. Still, 

we view the Administrator’s interpretation as the only reasonable 

interpretation under the circumstances. 

C. The Administrator’s Interpretation is Consistent with 

Stipulation 12

MBA asserts the Administrator’s interpretation is inconsistent 

with “other provisions of the ordinance.” See Stambaugh v. Killian, 242 Ariz. 

508, 509, ¶ 7 (2017) (“In construing a specific provision, we look to the 

statute as a whole and we may also consider statutes that are in pari 

materia—of the same subject or general purpose—for guidance and to give 

effect to all of the provisions involved.”). MBA points only to Stipulation 

12, however, and its statement that “[d]ensity will be based on the gross 

development area of each parcel.” But “gross development area” is not the 

same as “gross acreage”; we read this statement as acknowledging that the 

area developed may not be the same as the total acreage of the parcel.

Stipulation 1 contemplates this as well: “[T]he approved density for each 

parcel is subject to drainage, topography, NAOS requirements and other 

site planning concerns . . . . Appropriate design solutions to these 

constraints may preclude achievement of the proposed units or density on 

any or all parcels.” And just because 22 residential units (or 31 resort units) 

are the maximum for Parcel 6 does not mean that density cannot be based 

on the gross development area; the density could always be less than 

Stipulation 2’s provisions, and nothing about that would violate Stipulation 
MBA v. SCOTTSDALE, et al.

Decision of the Court

11

12. Because MBA points to no other provisions with which the 

Administrator’s interpretation is inconsistent, we conclude this

interpretation is the only reasonable way to construe the zoning ordinance, 

and specifically, Stipulation 2. See Premier Physicians Grp., 240 Ariz. at 195, 

¶ 9 (“When possible, we seek to harmonize statutory provisions and avoid 

interpretations that result in contradictory provisions.”).

CONCLUSION

We affirm the superior court’s judgment affirming the 

Board’s decision.

W I L L I A M S, J., dissenting

I respectfully dissent. Here we are tasked to interpret de novo, 

Murphy, 163 Ariz. at 574, a City of Scottsdale zoning ordinance described 

by Scottsdale during oral argument in the following manner: “The way the 

ordinance reads . . . it’s a little weird, quite frankly.” And, while I agree that 

the majority’s interpretation of the ordinance is reasonable, I disagree that 

it is the only reasonable reading of the ordinance. 

MBA’s interpretation is also reasonable, and in my view, the 

more appropriate reading of the ordinance. As delineated, supra ¶ 7, and 

with limited exception discussed below, Stipulation 2 confines the 

development of each parcel to: (1) the “maximum densities” set forth in 

column five of Stipulation 2’s table, and (2) the “dwelling unit counts” as 

set forth in column seven of the table. 

Parcel Gross Acres Zoning Proposed

DU/AC

Max. 

DU/AC

Proposed 

# Units

Max. 

# Units

1 14.68 R4-R HD 7/ac 7/ac 100 100

2 12.40 R4-R HD 8/ac 8/ac 100 100

3 10.20 R4-R HD 7/ac 7/ac 72 72

4 10.00 R4-R HD 10/ac 10/ac 99 99

5 3.42 R4-R HD 10/ac 10/ac 31 31

6 1.49 R4-R HD 15/ac 15/ac 22 22

Total 52.19 7.7/ac 424 385/424*
MBA v. SCOTTSDALE, et al.

Williams, J., dissenting

12

Thus, I agree that, generally, Parcel 6 cannot be developed to a density 

greater than 15 dwelling units per acre and cannot comprise more than 22 

total units. Further, according to the table, the collective number of units 

between all six parcels cannot exceed 385 “residential units,” or 424 units 

comprised of “a mix of residential and resort units.” 

However, Stipulation 2 does allow a parcel to be developed 

in excess of the maximum number of units specified in column seven of the 

table subject to certain parameters. And, in my view, the majority’s 

emphasis on column seven fails to adequately consider other crucial 

language of the ordinance vital to its interpretation. In particular, the 

following provisions must be noted when considering Stipulation 2’s table:

Maximum densities and dwelling unit counts shall be as 

indicated on the approved development plan except that in no 

case shall [the] unit count exceed 385 (for units which are not used 

or available as resort rooms) and 424 units maximum (of which at 

least 90 units shall be used as resort rooms) without a subsequent 

public hearing.

. . . 

The proposed unit count of 424 represents a mix of residential 

and resort units. The 385 unit maximum is the maximum 

allowed for residential units. If the residential units were all 

converted to resort units the maximum would be 550 units.

. . . 

Redistribution of the units is subject to maximum densities and 

Project Coordination staff approval.

(Emphasis added.) I read Stipulation 2 to identify two overarching 

requirements which the city council deemed absolute in the development 

of the six parcels. First, the total number of dwelling units combined 

between all six parcels cannot, absent a subsequent public hearing, exceed 

385 residential units, or a mixture of residential and resort units totaling 424, 

or arguably 550 resort units.9 Second, while dwelling units on any given 

parcel may exceed the maximum number set forth in column seven of the 

9 If MBA’s proposed 62 resort units were developed, the total number of 

units combined among all six parcels would still be less than Stipulation 2’s 

maximum of 424.
MBA v. SCOTTSDALE, et al.

Williams, J., dissenting

13

table, no parcel may be developed in excess of the density restrictions 

prescribed in column five of the table. 

Further, it is beyond dispute that column two of the table, 

which sets forth the “gross acres” of each parcel: (1) is not accurate, (2) was 

not accurate when the ordinance was enacted, and (3) the city council knew 

of the inaccuracies but still chose to enact the ordinance with the following 

provision: “The specific location of each parcel shall be determined at the 

time of site plan review.”(Emphasis added.) 

As implied by the majority, “location” is not defined in the 

ordinance. The majority relies upon Black’s Law Dictionary to define the 

same, supra ¶ 14, and concludes that, “[t]he drafters may have 

contemplated that the actual boundaries of each parcel could differ slightly 

on the ground in comparison to on paper, but this does not indicate that the 

drafters intended the gross acreage of the parcels to change.” (Emphasis added.) 

I respectfully disagree. Because the ordinance does not identify the location 

of any parcel, rather only lists gross acreage, in my view the majority’s 

interpretation of “location” is too narrow. Certainly the drafter’s caveat that

“the specific location of each parcel shall be determined at the time of site plan 

review” contemplated a future determination of not just each parcel’s 

“actual boundaries,” as the majority concludes, but also contemplated a 

future determination of the land within those boundaries; which is to say, a 

parcel’s gross acreage. (Emphasis added.) An August 2017 survey revealed 

the gross acreage of Parcel 6 to be 3.1707 acres, not the much smaller 1.49 

acres listed in column two of the table. 

The majority also points out, consistent with both Stipulation 

1 and Stipulation 12, that “density,” as set forth in column five of the table, 

“will be based on the gross development area of each parcel,” and further 

notes that “’gross development area’ is not the same as ‘gross acreage.’” I 

agree. However, the portion of Parcel 6’s gross acreage which qualifies as 

“gross development area” is not at issue before us. That matter is reserved 

for MBA and Scottsdale to determine.

Finally, the majority concedes its interpretation renders 

portions of the ordinance as surplusage. However, “we must read the 

[ordinance] as a whole and give meaningful operation to each of its 

provisions.” Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 35 (1998). “That is to say, we 

must avoid interpreting [an ordinance] so as to render any of its language 

mere ‘surplusage,’ but rather, must give meaning to ‘each word, phrase, 

clause, and sentence . . . so that no part of the [ordinance] will be void, inert, 

redundant, or trivial.’” Herman v. City of Tucson, 197 Ariz. 430, 434, ¶14 
MBA v. SCOTTSDALE, et al.

Williams, J., dissenting

14

(App. 1999) (quoting Walker v. City of Scottsdale, 163 Ariz. 206, 210 (App. 

1989)). 

Although I view MBA’s reading of the ordinance to be the 

more reasonable interpretation, because the ordinance is open to more than 

one reasonable interpretation, it is, by definition, ambiguous. See Glazer, 244 

Ariz. at 614, ¶ 12 (indicating a statute “is ambiguous when it is open to 

multiple reasonable interpretations”). “When a statute [or ordinance] is 

ambiguous, we determine its meaning by considering secondary factors, 

such as the statute’s context, subject matter, historical background, effects 

and consequences, and spirit and purpose.” Premier Physicians Grp., 240 

Ariz. at 195, ¶ 9. When looking at secondary factors, we may accept prior 

administrative interpretation “where long continued and in cases of 

ambiguity.” City of Mesa v. Killingsworth, 96 Ariz. 290, 296 (1964); see also

U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 212 (App. 1989) (indicating 

we need not defer to a board of adjustment’s interpretation when “there is 

no showing of a long-standing interpretation by the agency”). A review of 

Scottsdale’s long-standing interpretation of the ordinance is beneficial and 

should be dispositive.

Before the Administrator’s interpretation of the ordinance in 

2017, nothing in the record indicates Scottsdale has interpreted the 

ordinance consistent with their position here. To the contrary, since its 

inception, Scottsdale has consistently interpreted the ordinance to more 

closely align with MBA’s reading of the same. 

In 1995, the year after the ordinance was amended, Scottsdale 

approved 35 resort units to be built on Parcel 6, more than the 31 resort 

units Scottsdale currently argues is the maximum allowed. It is unclear 

from the record what gross acreage was attributed to Parcel 6 at that time. 

Regardless, the approved project was never constructed. 

In 2007, a previous owner of Parcel 6 submitted a proposal to 

the City’s Development Review Board for the development of Parcel 6, 

which was determined to be approximately 2.5 acres at that time. Scottsdale 

acknowledged that 37 units were allowed and then unanimously approved 

the building of 48 resort units. Thus, Scottsdale must have generally agreed 

with MBA’s calculations here that 37 dwelling units could have translated 

into, perhaps, as many as 52 resort units (2.5 acres x 15 dwelling units/acre 

= 37.5 dwelling units; 37 dwelling units x 1.43 = 52.91 resort units). Again, 

the approved project was never constructed.

In July 2016, MBA acquired Parcel 6. In October 2016, MBA 

submitted an application for a 64 resort unit development. In November 
MBA v. SCOTTSDALE, et al.

Williams, J., dissenting

15

2016, as part of its first review comments, Scottsdale sought clarification 

from MBA noting that “37 units were historically allocated for use on this 

site” and requested MBA to explain how 37 dwelling units could be 

increased to 64 resort units. MBA responded and resubmitted the project 

plans in June 2017 seeking approval for 62 resort units. In July 2017, as part 

of its second review comments, Scottsdale made no further inquiry 

regarding number of units allowed on Parcel 6 and arguably intimated 

MBA’s request was within the maximum number of units allowed when it 

directed MBA to modify the site plan to account for “three (3) [refuse 

enclosures] based on one enclosure per 20 units.” That same month, a thirdparty opposing MBA’s development requested that the Administrator 

interpret the ordinance. In August 2017, the Administrator issued an 

interpretation, and for the first time, Scottsdale took the position that Parcel 

6 could not be developed in excess of “22 dwelling units or 31 resort units.”

Scottsdale’s long-standing treatment of the ordinance is more 

closely harmonized with MBA’s reading of the ordinance than its own 

position here. Indeed, Scottsdale has historically interpreted the ordinance 

to allow the development of Parcel 6 subject to: (1) the gross acreage of 

Parcel 6, (2) the maximum density restrictions set forth in column five of 

the table, and (3) the combined dwelling units among all six parcels, 

comprised of a mixture of residential and resort units, totaling no more than 

424. Any other reading of the ordinance is a clear deviation from 

Scottsdale’s long-continued interpretation and results in an injustice to the 

property owner.

In my view, the Administrator’s interpretation of the 

ordinance, and subsequent affirmation by both the Board and the superior 

court, should be vacated.