IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

GAIL L. PALMER, et al., Plaintiffs/Appellants,

v.

CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 16-0398

Appeal from the Superior Court in Maricopa County

No. LC2015-000477-001

The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

Timothy A. LaSota PLC, Phoenix

By Timothy A. LaSota

Counsel for Plaintiffs/Appellants

Schern Richardson Finter Decker PLC, Mesa

By Michael A. Schern, Adam B. Decker

Counsel for Defendant/Appellee Grand Canyon University

Phoenix City Attorney’s Office, Phoenix

By Paul M. Li

Counsel for Defendant/Appellee City of Phoenix
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

2

OPINION

Judge Patricia K. Norris delivered the opinion of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

N O R R I S, Judge:

¶1 In 2015, Grand Canyon University (“GCU”) asked the City of 

Phoenix to abandon a roadway near its campus that had been dedicated to 

the City for the public’s use in 1926 (the “1926 Dedication”). Over the 

objections of Plaintiffs/Appellants Gail L. Palmer, Janice M. Palmer, and 

Gary S. Perkins-Warinner (the “Landowners”), the City decided to 

conditionally abandon the roadway. On appeal, the Landowners argue the 

City’s decision to conditionally abandon the roadway was contrary to the 

terms of the 1926 Dedication, state law, and the City Code, and, therefore, 

illegal. The Landowners also argue the abandonment method the City 

adopted—a public sale—violated state law and the City Code because the 

City “engineered” the sale to ensure that GCU would be the only bidder.

We reject the Landowners’ arguments and affirm the superior court’s 

judgment in favor of the City and GCU.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2015, GCU submitted an “abandonment application” to the 

City’s Planning and Development Department (“Department”) and 

requested the City abandon part of West Colter Street, an east-west street, 

and part of a street that intersected West Colter Street, North 30th Drive, a 

north-south street (collectively, the “roadway”). GCU owned all the 

property abutting the roadway except for three parcels of property abutting 

West Colter Street, one owned by a third party not involved in this 

litigation,1 and two neighboring parcels owned and used as rental 

properties by the Landowners (collectively, the “private property owners”).

GCU proposed building two guard gates or booths, one on the eastern end 

of West Colter Street and one at the north end of North 30th Drive which

would allow GCU to control access to all of the property abutting the 

roadway, whether owned by it or the private property owners.

 

1The third party did not oppose abandonment of the 

roadway. 
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

3

¶3 The City received the roadway for the public’s use through a 

recorded dedication in 1926 when the “Homeland” subdivision was 

platted. The 1926 Dedication recited the owners had:

caused the . . . property to be surveyed, 

subdivided and platted as shown hereon, which 

said premises so subdivided and platted shall 

hereafter be known as HOMELAND, and that 

the plat as shown hereon sets for the location, 

gives the number and dimensions of each lot 

and block and gives the name and width of roads, 

which said roads so shown are hereby dedicated to the 

use of the public.

(Emphasis added).

¶4 In July 2015, the City’s Abandonment Hearing Officer 

conducted a public hearing on GCU’s abandonment application. At the 

hearing, an attorney representing GCU explained GCU representatives had 

met with the Landowners and others to discuss the requested abandonment

and GCU had agreed to several “stipulations” designed to address various 

access concerns they had raised. Accordingly, GCU’s attorney informed the 

Hearing Officer, that, in addition to building the guard gates, GCU would: 

(1) build an “express/thru” lane so the private property owners and their 

renters, guests, invitees, and service providers (collectively, “related users”) 

could bypass the guard gates; (2) maintain at its expense the roadway’s 

pavement and sidewalks “commensurate with” public roadways in the 

City; (3) grant a permanent, unrestricted, recorded access easement to the

private properties’ owners for their benefit and the benefit of their related 

users; and (4) not restrict pedestrians from accessing or leaving Little 

Canyon Trail, a City maintained trail, at West Colter Street or North 30th 

Drive. Although GCU’s original abandonment application had not 

expressly asked the City to convey title or fee ownership of the roadway to 

GCU, given GCU’s willingness to agree to the stipulations, GCU clearly 

anticipated that, if the City approved the proposed abandonment, the City 

would convey the roadway to it.

¶5 The Landowners objected to the proposed abandonment at 

the hearing, criticizing, among other matters, GCU’s presence in the area, 

GCU’s treatment of them, GCU’s students, and GCU’s failure to obtain an

environmental impact statement. Despite the Landowners’ opposition, the 

Hearing Officer conditionally approved GCU’s abandonment application, 

subject to GCU’s compliance with and performance of the stipulations
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

4

within 18 months. The Landowners and a third party appealed the Hearing 

Officer’s decision to the Phoenix City Council. 

¶6 City officials and Department staff then met with the 

appealing parties and representatives of GCU and discussed the proposed 

abandonment and the appealing parties’ objections. Based on the

discussions, the Department’s Director submitted a memorandum to the 

City Council recommending approval of the proposed abandonment with

modified and additional stipulations. The modified and additional 

stipulations concerned, in part, access issues and, in part, reflected that if 

the City abandoned the roadway, it would do so through a public sale

which, under state law and the City Code, would allow anyone, not just 

GCU, to buy the roadway, subject to any stipulations imposed by the City.

Accordingly, the Director explained the stipulations had been modified to

“correctly portray that any purchaser of the abandonment area must 

comply with all or their portion of the stipulations prior to taking control 

of” the roadway.

¶7 Thus, by way of example, the modified stipulations required 

“[a]ny purchaser . . . [to] provide the private property owners along Colter 

Street . . . with a permanent, unrestricted, recorded access easement to their 

properties for the benefit of the owners and their invitees, guests and any 

service personnel to use the [express/thru] lane at all times.” Similarly, the 

modified stipulations required “any purchaser . . . [to] maintain the

[roadway’s] existing pavement and sidewalk improvements in a condition 

commensurate with public roadways in the City of Phoenix, for so long as 

there remains any private properties (not owned by GCU) within [] the 

abandonment boundaries.” And, the modified stipulations prohibited 

“[a]ny purchaser of any portion of the [roadway from restricting] 

movement of pedestrians utilizing Little Canyon Trail from accessing the 

trail at Colter Street or 30th Drive during hours of operation.” 

¶8 Subject to the modified and additional stipulations in the 

Director’s memorandum (“the final stipulations”), in October 2015 the City 

Council unanimously, but conditionally, approved the proposed 

abandonment. The City Council’s approval was conditional because, as the 

Director explained in his memorandum,

The City will ensure compliance with all 

stipulations and City Council will have final 

review and approval prior to any actual 

[conveyance of the roadway] to any private 

entity. This requested action only lays out a 

course for the purchasing entity to comply with 
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

5

prior to the City Council authorizing a 

conveyance of the [roadway] through a separate 

City Council action. 

¶9 The Landowners then filed a verified complaint in the 

superior court seeking special action relief. As relevant here, in their 

complaint and in subsequent filings in the superior court, the Landowners

argued the City’s conditional abandonment (1) violated the 1926 Dedication

and state law in effect when the roadway was dedicated to the City because 

both required the City to maintain the roadway for the public’s use; (2)

violated state law and the City Code because the roadway was still 

necessary for the public’s use; and (3) violated state law and the City Code 

because the abandonment method approved by the City—a public sale—

had been “engineered” by the City to ensure GCU would be the only bidder

at the sale. 

¶10 After full briefing and extensive oral argument, the superior 

court dismissed the Landowners’ complaint. The court ruled the City had

not proceeded or threatened to proceed “without or in excess of jurisdiction 

or legal authority” and the City’s decision to conditionally approve the 

abandonment had not been arbitrary and capricious or an abuse of 

discretion. See Ariz. R.P. Spec. Act. 3(b)-(c) (special action addresses 

whether a “defendant has proceeded or is threating to proceed in excess of 

jurisdiction or legal authority” or “[w]hether a determination was arbitrary 

and capricious or an abuse of discretion”).

DISCUSSION2

I. The 1926 Dedication and the City’s Authority to Abandon a 

Roadway Dedicated to Public Use.

¶11 The Landowners argue, as they did in the superior court, that 

the City was not entitled to conditionally abandon the roadway because it 

had been dedicated in 1926 “to the use of the public.”3 The 1926 Dedication 

 

2Because the dispositive issues in this appeal present issues of 

law, our review is de novo. Nat’l Collegiate Student Loan Trust 2007-2 v. Rand, 

241 Ariz. 169, 171, ¶ 7, 384 P.3d 1249, 1251 (App. 2016) (citation omitted).

3The Landowners argued in the superior court that the City 

did not own fee title to the roadway but instead held only an easement for 

use of the roadway because the 1926 Dedication had been a common law 

and not a statutory dedication. See generally Pleak v. Entrada Prop. Owners
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

6

did not, as the Landowners argue, prohibit the City from abandoning the 

roadway.

¶12 When the owners dedicated the roadway to the public’s use 

in 1926, the statute that governed the 1926 Dedication required a landowner 

who wished to subdivide property into tracts of 20 acres or less to have the 

property surveyed and platted and “by proper dedication, dedicate the 

avenues, streets, parks, plazas, public grounds and alleys to the public for 

their general use.” 1913 Arizona Civil Code § 5313. Section 1895 of the 1913 

Civil Code provided that upon the “filing” of a map or plat, the “fee of all 

streets . . . and other parcels of ground reserved therein to the use of the 

public, shall vest in such town, if incorporated, in trust, for the uses therein

named and expressed.” Accordingly, under these statutes, the City became 

the fee owner of the roadway and, consistent with the language of the 1926 

Dedication, received the roadway in trust for the public’s use.4

¶13 But the City’s receipt of the roadway in trust for the public’s 

use did not mean it could not abandon it. Section 1897 of the 1913 Civil 

Code also authorized a city to “vacate,” that is, abandon, city streets and 

other public property (“[C]ities and common councils in cities shall have 

the [power to] lay out and establish, open, alter, widen, extend, grade, pave 

or otherwise improve streets, alleys, avenues, sidewalks, parks and public 

grounds, and vacate the same.”). Thus, the statutes in effect in 1926 granted 

 

Ass’n, 207 Ariz. 418, 421, ¶ 8, 87 P.3d 831, 834 (2004) (under common law, 

landowner may dedicate land for a proper public use; effect of common law 

dedication is that the public acquires an easement to use the property for 

the specified purpose while the fee remains with the dedicator); Allied Am.

Inv. Co. v. Pettit, 65 Ariz. 283, 289-90, 179 P. 437, 440-41 (1947) (when, 

pursuant to statute, landowner records plat showing streets, alleys, parks,

and other property reserved for the public’s use, fee vests in town, if 

incorporated). Based on this distinction, the Landowners argued the City 

could not abandon the roadway because the City did not own it. The 

superior court ruled the 1926 Dedication was a statutory dedication, and 

the Landowners have not challenged that ruling on appeal. 

4The parties have agreed that the 1913 Civil Code governs the 

legal effect of the 1926 Dedication. The parties have been less than clear, 

however, whether the 1913 Civil Code or the statutes in effect when the City 

approved the conditional abandonment control the validity of the 

conditional abandonment. We do not need to decide which statutory 

scheme controls as the dedication and abandonment statutes have 

remained the same since 1913. See infra ¶ 14.
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

7

a city the right to receive property in fee for the public’s use and the right to 

vacate—or abandon—city-owned public property.

¶14 From the enactment of the 1913 Civil Code to the present, the 

Legislature has continued to grant cities the right to receive property in fee 

for the public’s use and the right to vacate city-owned public property. 

What is now Arizona Revised Statutes (“A.R.S.”) section 9-1141 (2008) and 

(1956), which authorizes a landowner to dedicate property for public use, 

existed as § 17-1818 in the 1939 Arizona Civil Code, § 3210 in the 1928 

Arizona Civil Code, and, as discussed, § 5313 in the 1913 Civil Code. What 

is now A.R.S. § 9-254 (2008) and (1956), which vests the fee of platted 

property in trust for the public’s use, existed as § 16-231 in the 1939 Civil 

Code, § 395 in the 1928 Civil Code, and, as discussed, § 1895 in the 1913 

Civil Code. And, what is now A.R.S. § 9-276(A)(1) (2008) and (1956), which 

empowers cities to vacate, or abandon, city-owned streets, alleys, avenues, 

and sidewalks, existed as § 16-601 in the 1939 Civil Code, § 408 in the 1928 

Civil Code, and, as discussed, § 1897 in the 1913 Civil Code.

¶15 Consistent with the broad authority it granted to cities to 

abandon city-owned property, in 1961 the Legislature expressly authorized 

a municipal corporation to vacate a roadway if it determined the roadway 

was no longer necessary for public use.5 See 1961 Ariz. Sess. Laws, ch. 105, 

§ 105 (originally codified at A.R.S. § 18-502 (1961)). Now codified at A.R.S. 

§ 28-7202 (2013), this statute states that if “a governing body determines that 

a public roadway owned by the city . . . or a portion of the roadway is not 

necessary for public use as a roadway, the governing body may dispose of 

. . . the roadway . . . .” The City Code contains virtually the same provision:

“When in the discretion of the City Council a public roadway owned by the 

City, or a portion of such a roadway, is no longer necessary for public use 

as roadway, the City Council may dispose of . . . the same . . . .” Phoenix 

City Code § 31-64.

¶16 Thus, in 1926, when the owners dedicated the roadway to the 

City in trust for the public’s use, they did so subject to the City’s right to 

vacate city-owned property. See generally Martini v. Smith, 42 P.3d 629, 633 

(Colo. 2002) (dedication of street for public use was binding on municipality 

under statutes in effect at the time of the dedication but street could be 

vacated by municipality if municipality complied with statutory 

requirements in effect when municipality decided to vacate the street); City 

 

5A roadway “includes all or part of a platted designated 

public street, highway, alley, lane, parkway, avenue, road, sidewalk or 

other public way . . . .” A.R.S. § 28-7201(4) (2013).
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

8

of Detroit v. Judge of Recorder‘s Court of City of Detroit, 234 N.W. 445, 447 

(Mich. 1931) (city acquired land by dedication; subject, at the time of the 

dedication, to city’s right under its charter to alter, vacate, or abolish its 

public places); Belgum v. City of Kimball, 81 N.W.2d 205, 218 (Neb. 1957) 

(when street is dedicated to public’s use in a recorded plat, as authorized 

by statute, dedication is also subject to statute that allows a city to vacate 

streets and alleys); In re Appeal from Passage of Ordinance 4354 of the City of 

Altoona, 388 A.2d 313, 317 (Pa. 1978) (dedication does not impose upon a 

municipality a duty to maintain dedicated roadway in perpetuity; when 

purpose for which the roadway was dedicated no longer exists or the public 

is no longer benefited by the designated use, municipality is empowered to 

vacate the roadway); see also 26 C.J.S. Dedication § 88 (“The power of a 

municipality . . . to vacate property dedicated to public use is dependent on the 

statute and, where a city is given such a power, dedications to it are subject 

to this power since the acceptance of the dedication does not constitute a 

waiver of its right.”) (emphasis added) (footnotes and citations omitted).

¶17 At its heart, the Landowners’ argument—that the 1926 

Dedication and the City’s receipt of the roadway in trust pursuant to § 1895 

of the 1913 Civil Code prevented the City from conditionally abandoning 

the roadway—is premised on the notion that a city may never abandon 

property dedicated to the public’s use, even if the city has determined the 

property is no longer needed for the public’s use. Under their argument, a

city would be required to hold in perpetuity dedicated property even if the

character of the neighborhood or surrounding property changed. The 

Arizona Supreme Court, however, all but rejected that argument in Reese v. 

De Mund (“Reese I”), 74 Ariz. 140, 245 P.2d 284 (1952). 

¶18 There, a plat recorded in 1880 dedicated to the public all

streets and alleys that abutted blocks of subdivided property. Id. at 141, 245 

P.2d at 285. Approximately 70 years after the City of Phoenix accepted the 

dedication, the City decided to abandon and convey one of the alleys to a 

private party. Id. The plaintiff sued the private party and the City, asserting

the conveyance of the alley to the private party was void because the 

abandonment “was not done for the public good.” Id. After noting that the 

City had acted in a legislative capacity in deciding to abandon the alley, the 

court concluded the City’s charter—which authorized the City to both 

accept and vacate street dedications—allowed the City to vacate the alley

and thus: “[T]he action of the council was within its declared powers.” Id. 

at 143, 245 P.2d at 286.

¶19 As in Reese I, the City’s decision to conditionally abandon the 

roadway was within its declared powers, both under the 1913 Civil Code, 

current statutes, and, indeed, under the City’s current charter and City 
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

9

Code. See Charter of the City of Phoenix, Ch. IV, section 49 (2016) (City may 

“accept dedications of streets” and “vacate such dedications”); Phoenix 

City Code § 31-64 (City may vacate a roadway if that roadway is no longer 

necessary for public use).

¶20 The Landowners rely on several out-of-state cases in arguing 

the City was barred from conditionally abandoning the roadway because 

the roadway had been dedicated to the public’s use. The cases cited by the 

Landowners recognize that, in general, a governmental entity holds 

dedicated property in trust for the public to be used for the purposes 

specified in the dedication.6 Arizona courts have also acknowledged that 

general rule. Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 290, 179 P.2d 437, 441 

(1947); City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 375, 379, 697 P.2d 

1125, 1129 (App. 1984). But none of these authorities addressed whether a 

governmental entity may, pursuant to statutory authorization, abandon 

that property if it determines the property is no longer needed for the 

public’s use.

¶21 Finally, if we were to accept the Landowners’ argument, 

A.R.S. § 28-7202, see supra ¶ 15, would become meaningless as a municipal 

corporation would never be able to abandon a roadway that had originally 

been dedicated to public use. See Carbajal v. Indus. Comm’n, 223 Ariz. 1, 3, ¶ 

10, 219 P.3d 211, 213 (2009) (citing Ariz. Dep’t of Revenue v. Action Marine, 

Inc., 218 Ariz. 141, 143, ¶ 10, 181 P.3d 188, 190 (2008)) (appellate courts 

should not interpret statutes such that statutory words or phrases are 

meaningless, unnecessary, or duplicative) (quotation omitted).

¶22 In short, under Arizona law, the City was not precluded from 

conditionally abandoning the roadway even though, pursuant to the 1926 

Dedication, the City received the roadway in trust for the public’s use. The 

owners made the 1926 Dedication subject to the City’s right to abandon cityowned property—a right, we underscore, that exists to this day.

II. The Landowners May Not Challenge the City’s Legislative Decision 

to Abandon the Roadway without Special Damages.

¶23 The Landowners argue the City was not entitled to

conditionally abandon the roadway under A.R.S. § 28-7202 and the City 

 

6City Council of Augusta v. Newsome, 89 S.E.2d 485 (Ga. 1955); 

Schien v. City of Virden, 126 N.E.2d 201 (Ill. 1955); 2000 Baum Family Trust v. 

Babel, 793 N.W.2d 633, 637-40 (Mich. 2010); Ruggieri v. City of E. Providence,

593 A.2d 55 (R.I. 1991); Roeder Co. v. Burlington N., Inc., 714 P.2d 1170 (Wash. 

1986). 
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

10

Code because the roadway is still necessary for public use. In making this 

argument, the Landowners point to several of the final stipulations that, for 

example, require the purchaser of the roadway to grant the private property 

owners along West Colter Street an access easement and prohibit the 

purchaser from taking steps that would limit the public’s access to Little 

Canyon Trail. See supra ¶ 7. As a matter of law, however, the Landowners 

are not entitled to challenge the City’s legislative decision to conditionally 

abandon the roadway because they did not allege or otherwise present any 

evidence that the conditional abandonment had caused or would cause 

them special damages.

¶24 In Reese I and in Reese v. De Mund (“Reese II”), 75 Ariz. 66, 251 

P.2d 887 (1952), the Arizona Supreme Court addressed whether a property 

owner could challenge a municipal corporation’s legislative decision to 

abandon dedicated property. As discussed, there, the City decided to 

vacate and abandon property it had received through a dedication. See 

supra ¶ 18. Recognizing that in deciding to vacate and abandon the property 

the City had acted in a legislative capacity, Reese I, 74 Ariz. at 142-43, 245 

P.2d at 285-86, the court explained it could not “question the wisdom or 

discretion or advisability of [the City’s] action except for fraud or other 

illegality or absence of jurisdiction to abandon” unless the property owner 

could show special damages from the abandonment. The court stated: “[I]n 

the absence of absolute illegality a property owner may not complain of the 

act of a municipality in abandoning a street unless he shows some special 

damage resulting to him from such action.” Id. at 143, 245 P.2d at 286; see 

also Reese II, 75 Ariz. at 67, 251 P.2d at 887 (affirming superior court’s 

dismissal; damages alleged were “not different in either degree or kind 

from those suffered by the public, generally, and can constitute no basis for 

the cause of action claimed”).

¶25 Here, the record before us contains no evidence the 

Landowners have suffered or will suffer any special damages.

¶26 The Landowners argue, nevertheless, that GCU waived the

special damages requirement because it did not raise the requirement in a 

timely manner in the superior court. GCU did not, however, waive the 

issue. “[A] party must timely present his legal theories to the trial court so 

as to give the trial court an opportunity to rule properly.” Payne v. Payne, 12 

Ariz. App. 434, 435, 471 P.2d 319, 320 (App. 1970) (citations omitted). 

Counsel for GCU timely raised the special damages requirement in the 

superior court during oral argument, and the court and the parties 

extensively discussed the requirement and Reese I during the argument. 

Further, during the argument, counsel for the Landowners acknowledged 

that the “record below”—a reference to the administrative record presented 
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

11

to the superior court—did not contain any testimony from the Landowners

that the conditional abandonment would have an adverse impact on their 

“properties as rentals.”7

¶27 Under these circumstances, the Landowners were not in a 

position to “question the wisdom or discretion or advisability” of the City’s 

decision to conditionally abandon the roadway. Reese I, 74 Ariz. at 142, 245 

P.2d at 285.

¶28 Finally, to the extent the Landowners are arguing the 

conditional abandonment is illegal because the roadway is still necessary 

for the public’s use, see supra ¶ 23, this argument is, at its core, nothing more 

than a challenge to the City’s legislative decision making. Reese I recognized

that a municipal corporation acts in its legislative capacity when it decides 

to abandon a roadway, and a property owner who fails to present evidence 

of special damages cannot challenge that action except for fraud, other 

illegality, or the absence of jurisdiction to abandon. 74 Ariz. at 142, 245 P.2d 

at 285. Here, the Landowners made no showing they fell within any of these 

exceptions to the special damages requirement.

III. The Validity of the Conditional Abandonment Under A.R.S. § 28-

7204 and Phoenix City Code Provision § 31-64.

¶29 The Landowners argue the conditional abandonment violates

state law, A.R.S. § 28-7204 (2013), and the City Code, § 31-64(b), because the 

abandonment method approved by the City—a public sale—was

engineered to ensure that GCU would be the only bidder at the sale. As 

they see the situation, through the final stipulations, the 

 

7After the Landowners acknowledged the record contained 

no evidence the conditional abandonment would have an adverse impact 

on their “properties as rentals,” the Landowners told the superior court 

they could “call” Appellant Palmer “if that would be helpful to the court.” 

Citing Robertson v. Superior Court, 136 Ariz. 441, 442, 666 P.2d 540, 542 (App. 

1983) (in special action filed in the superior court, that court is limited to 

reviewing the administrative record), GCU objected to Palmer testifying, 

asserting the superior court was limited to reviewing the record made 

before the City, as the Landowners had filed a petition requesting special 

action relief. The superior court did not rule on GCU’s objection to Palmer’s 

testimony as the Landowners then acknowledged that “the crux” of their 

case was that the City had acted illegally. At that point, the Landowners did 

not reiterate their offer to present testimony regarding special damages, nor 

did they make any offer of proof.
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

12

City and Grand Canyon have engineered an 

auction in which there will be only one bidder—

Grand Canyon. If someone other than Grand 

Canyon buys the property, that person has to 

agree, at its own expense, to do every single 

thing Grand Canyon wants done to the 

property. . . . One does not have to go out on 

much of a limb to predict that if this “sale” does 

go forward, there will be only one bid—Grand

Canyon’s.

Although the Landowners have, in convincing fashion, argued the final

stipulations will discourage anyone other than GCU from purchasing the 

roadway, neither A.R.S. § 28-7204 nor the corresponding City Code 

provision, § 31-64(b), restrict or limit the stipulations a city may impose 

when exercising its legislative authority to abandon a roadway.

¶30 After a municipal corporation decides a roadway is no longer 

necessary for public use, it may abandon the roadway by conveying the 

roadway to an abutting landowner, see A.R.S. § 28-7205 (2013) and City 

Code § 31-64(a), or, if the roadway is in a planned development, by 

conveying the roadway to a planned development owners association, see

A.R.S. § 28-7206 (2013) and City Code § 31-64(d), or, as discussed, to the 

successful purchaser at the public sale under A.R.S. § 28-7204 and City Code 

§ 31-64(b).

¶31 When the City elects to proceed by sale, A.R.S. § 28-7204 and 

the corresponding City Code provision require it to provide notice in 

advance of the date of the sale to the public and abutting owners. The 

statute and corresponding City Code provision require that the notice 

describe the roadway or portion of the roadway to be sold, refer to the 

statute and code provision, and “[s]tate that a person may submit purchase 

offers and that abutting owners have preference rights pursuant to this 

article.” A.R.S. § 28-7204(C).

¶32 On its face, neither A.R.S. § 28-7204 nor the corresponding

City Code provision mandate the substance or content of any stipulation

the City may impose on the purchaser of the roadway. The statute and 

corresponding City Code provision concern notice—notice of the sale to the 

public and the abutting owners and the content of the notice. The 

Landowners’ argument that the final stipulations violate A.R.S. § 28-7204 

and the corresponding City Code provision requires us to read into those 

provisions requirements that are not otherwise within them and to expand 

those provisions to matters that simply do not fall within the statutory and 
PALMER, et al. v. PHOENIX/GCU

Opinion of the Court

13

code language. We cannot do that. Cicoria v. Cole, 222 Ariz. 428, 431, ¶ 15, 

215 P.3d 402, 405 (App. 2009) (court “will not read into a statute something 

that is not within the manifest intent of the legislature as indicated by the 

statute itself” and will not extend a statute to matters that do not fall within 

its express provisions) (citation omitted).

CONCLUSION

¶33 We affirm the superior court’s judgment dismissing the 

Landowners’ complaint against GCU and the City. We deny GCU’s request 

for fees on appeal fees pursuant to A.R.S. § 12-349 (Supp. 2016), which 

authorizes a court to assess fees as a sanction. Although we have affirmed 

the superior court’s judgment dismissing the Landowners’ complaint, their 

appeal was not frivolous. As the prevailing parties on appeal, we award

GCU and the City costs on appeal as authorized by law contingent upon 

their compliance with Arizona Rule of Civil Appellate Procedure 21.