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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAY AND LINDSAY - 11, LLC, 

Plaintiff/Appellant,

v.

TOWN OF GILBERT,

Defendant/Appellee.

No. 1 CA-CV 20-0443 

Appeal from the Superior Court in Maricopa County

No. CV2018-011285

The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Berry Riddell, LLC, Scottsdale

By Jeffrey D. Gross, Michael W. Zimmerman

Counsel for Plaintiff/Appellant

Gust Rosenfeld, PLC, Phoenix

By Charles W. Wirken

Counsel for Defendant/Appellee

FILED 5-4-2021
RAY AND LINDSAY v. GILBERT

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge David B. Gass and Judge Michael J. Brown joined.

W E I N Z W E I G, Judge:

¶1 Ray and Lindsay, LLC (“R&L”) appeals the superior court’s 

entry of judgment on the pleadings for the Town of Gilbert and award of 

attorney fees. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Because the superior court dismissed the lawsuit on the 

pleadings under Arizona Rule of Civil Procedure 12(c), we accept and thus 

recount “the allegations of the complaint as true.” Muscat by Berman v. 

Creative Innervisions LLC, 244 Ariz. 194, 197, ¶ 7 (App. 2017).

2005 Development Agreement

¶3 Greater Phoenix Income Properties (“GPI”) owned and 

intended to develop a vacant parcel (“Property”) in the Town. When so 

developed, GPI understood it would need “to construct certain 

improvements.”

¶4 GPI and the Town entered into a development 

reimbursement agreement (“Agreement”) in April 2005. The Agreement 

expressly bound all successors and was recorded to notify prospective 

purchasers about its obligations. The Town promised “to construct” capital 

improvements for the Property, and GPI promised to reimburse the Town 

for nearly $760,000 in improvements, including roadway improvements, 

design fees, construction management fees, irrigation costs and power 

costs. The Agreement explained that the Town would not record “the final 

plat for any portion of the Property and [would] withhold[] permits and 

municipal services to the Property until the funds [were] fully received.” A 

lien was recorded on the Property to secure the debt, which the Town 

promised to release once paid.

¶5 The Town approved the Agreement by resolution, citing its 

authority under A.R.S. § 9-500.05 to “enter into development agreements 

relating to the development of property in the Town.”
RAY AND LINDSAY v. GILBERT

Decision of the Court

3

R&L Acquires the Property and Sues the Town

¶6 R&L bought the Property from GPI in December 2016.

Around 13 months later, R&L asked the Town to reduce the reimbursement 

amount under the Agreement and release the lien. R&L claimed the 

Agreement was an assessment under A.R.S. § 9-243, which abated in 2015 

because the Property remained undeveloped after 10 years. The Town 

refused, and R&L sued for a declaratory judgment that the assessment and 

lien had expired.

¶7 The superior court granted the Town’s motion for judgment 

on the pleadings and awarded attorney fees to the Town. R&L timely 

appeals. We have jurisdiction. See A.R.S. § 12-2101(A)(1).

DISCUSSION

¶8 We review de novo an order granting judgment on the 

pleadings and will affirm if it is correct for any reason. Muscat by Berman, 

244 Ariz. at 197, ¶ 7. We also interpret statutes de novo. Duff v. Lee, 250 

Ariz. 135, 138, ¶ 11 (2020).

I. Assessments and Development Agreements

¶9 Although contained in a development agreement authorized 

by § 9-500.05, R&L argues the reimbursement requirement was an 

involuntary assessment under § 9-243. We thus begin by describing and 

comparing assessments and development agreements.

¶10 Assessments. Arizona cities and towns may impose

assessments under § 9-243—without mutual assent—shifting the costs for 

public improvements (streets and sidewalks) from all taxpayers to local 

businesses and landowners who need the improvements:

The council may by ordinance require the proprietor or owner 

of any property within the town at the time of the 

development of the property to construct streets within and 

adjacent to the property. If the council determines that such 

streets are necessary before the development of the property, 

the council may order these improvements to be constructed 

by the town at its expense and the expense shall be assessed 

against the property.

A.R.S. § 9-243(B).
RAY AND LINDSAY v. GILBERT

Decision of the Court

4

¶11 The legislature created a framework for municipalities to 

impose assessments and for landowners to appeal them. See A.R.S. § 9-

243(D) (“The determination of necessity by the council resulting in the 

assessing of property under this section may be appealed by any aggrieved 

party to the superior court.”).

¶12 Assessments are time-limited to protect landowners from 

paying to construct streets and sidewalks they never need or use: “Any 

assessment under this section shall abate if the property has not been 

developed within ten years of the assessment.” A.R.S. § 9-243(C). The 

Town cannot extend or exceed its powers beyond that granted by the 

legislature. Town of Florence v. Florence, __ Ariz. __, 2021 WL 1099043 at *4

(Ariz. App. Mar. 23, 2021).

¶13 Development agreements. By contrast, Arizona cities and 

towns may negotiate development agreements with developers under § 9-

500.05 to attract and induce development. Id. (“By authorizing cities and 

towns to enter development agreements, the legislature expanded the landuse toolbox of local governments to attract large investments from 

developers who demand more certainty and less risk—sheltering the 

developers from oscillating public preference and unpredictable political 

winds.”). Mutual assent is needed to enter or amend a development 

agreement. See A.R.S. § 9-500.05.

¶14 The legislature identified various forms of development 

agreements, including, as relevant here, “an agreement between a 

municipality and a [landowner]” relating to “[c]onditions, terms, 

restrictions and requirements for public infrastructure and the financing of 

public infrastructure and subsequent reimbursements over time.” A.R.S. 

§ 9-500.05(H)(1)(g). The legislature did not limit the duration of 

development agreements. Rather, the burdens and benefits of development 

agreements inure to “successors in interest and assigns,” and development 

agreements cannot be terminated without mutual assent. A.R.S. § 9-

500.05(A), (C), (D).

II. Abatement

¶15 R&L argues the development reimbursement agreement 

between its predecessor and the Town was really an assessment under § 9-

243, which necessarily abated in 2015 because the Property had “not been 

developed within ten years of the assessment.” See A.R.S. § 9-243(C). This 

argument fails under the plain language of § 9-243 and § 9-500.05. Our 

primary goal with statutory interpretation is to discern and carry out the 
RAY AND LINDSAY v. GILBERT

Decision of the Court

5

legislature’s intent, J.D. v. Hegyi, 236 Ariz. 39, 40, ¶ 6 (2014), which is best 

expressed by the statute’s plain language, Premier Physicians Grp., PLLC v. 

Navarro, 240 Ariz. 193, 195, ¶ 9 (2016). 

¶16 First, the legislature expressly limited § 9-243’s ten-year 

abatement period to “any assessment under this section.” A.R.S. § 9-243(C)

(emphasis supplied). Had the legislature intended this limitation to apply 

more broadly, including to development agreements under § 9-500.05, it 

could and would have said, “under this title.” State ex rel. Fox v. New Phoenix 

Auto Auction, Ltd., 185 Ariz. 302, 308 (App. 1996) (citing A.R.S. § 1-213) 

(recognizing the importance when “the legislature expresses itself using its 

own technical terms,” like “section”).

¶17 Second, the Town did not “require” or “order” GPI and its 

successors to reimburse the improvement costs under § 9-243(B). Rather, 

the parties negotiated and voluntarily agreed to the reimbursement 

obligation as a valid “condition[], term[], restriction[] [or] requirement for 

public infrastructure” financing under § 9-500.05(H)(1)(g). Nor has R&L 

alleged the development agreement is void or voidable as the product of 

duress.

¶18 Third, unlike a unilateral assessment under § 9-243, the terms 

of a development agreement under § 9-500.05 run with the land, bind 

successors in interest and cannot be amended or terminated without 

mutual consent. See A.R.S. § 9-500.05(C), (D).

¶19 R&L relies on Achen-Gardener, Inc. v. Superior Ct., 173 Ariz. 48 

(1992), to argue that “A.R.S. § 9-500.05 does not give cities unfettered 

authority to statutory limitations.” That reliance is misplaced. There, our 

supreme court held that local governments cannot negotiate whether 

compliance with state procurement laws will be required under a 

development agreement. But state procurement laws are mandatory and 

protect taxpayers from self-dealing and cronyism. Id. at 55. Assessment 

laws, by contrast, describe how and when local governments can shift the 

cost of improvements. See Shelby D. Green, Development Agreements: 

Bargained-For Zoning That Is Neither Illegal Contract Nor Conditional Zoning, 

33 Cap. U.L. Rev. 383, 394 (2004). Compare Assoc’d Gen. Contractors of Cal. v. 

San Francisco Unified Sch. Dist., 616 F.2d 1381, 1391 (9th Cir. 1980) 

(procurement laws are “designed to protect the public [coffers] by 

preventing public officials from awarding contracts uneconomically on the 

basis of special friendships”), with 3 Rathkopf’s The Law of Zoning and 

Planning § 44:16 (4th ed.) (both parties benefit from development 

agreements when the municipality negotiates for “fees, dedications, 
RAY AND LINDSAY v. GILBERT

Decision of the Court

6

exactions, and improvements,” and the developer negotiates to “‘lock in’ 

the land use regulations”). We affirm the superior court’s entry of 

judgment on the pleadings.

III. Attorney Fees

¶20 R&L also challenges the superior court’s statutory authority 

to award the Town its attorney fees, which we review de novo. Bennett 

Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 205, ¶ 5 (App. 2014). Finding no 

error, we affirm. 

¶21 The superior court is authorized under A.R.S. § 12-341.01(A) 

to award reasonable attorney fees to the successful party in a “contested 

action arising out of a contract.” The development agreement is a contract 

and the Town prevailed in a lawsuit arising from the development 

agreement. See Florence, 2021 WL 1099043 at *6. Moreover, the

development agreement provided that “the prevailing party shall be 

awarded his reasonable attorney[] fees and costs and collection costs 

incurred” if required to litigate. That provision is enforceable. Bennett 

Blum, 235 Ariz. at 206, ¶ 8 (quoting McDowell Mountain Ranch Cmty. Ass’n 

v. Simons, 216 Ariz. 266, 269, ¶ 14 (App. 2007)).

¶22 Both parties seek attorney fees under A.R.S. § 12-341.01. The 

Town also requests fees under the Agreement. We award the Town its 

reasonable attorney fees as the prevailing party upon compliance with 

ARCAP 21 and deny R&L’s request. 

CONCLUSION

¶23 We affirm.