IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

CONTRERAS FARMS LIMITED LLC, Plaintiff/Appellant,

v.

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

No. 1 CA-CV 18-0553 

Appeal from the Superior Court in Maricopa County

No. LC 2015-000267-001

The Honorable Connie Contes, Judge

AFFIRMED

COUNSEL

Gillespie, Shields, Goldfarb, Taylor & Houk, Phoenix

By Kristina B. Reeves, April Maxwell

Counsel for Plaintiff/Appellant

Burch & Cracchiolo PA, Phoenix

By Daryl Manhart, Andrew Abraham, Casey S. Blais

Co-Counsel for Defendants/Appellees

Phoenix City Attorney’s Office, Phoenix

By Brad Holm

Co-Counsel for Defendants/Appellees

FILED 10-29-2019
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

2

OPINION

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

which Judge Kenton D. Jones and Judge Lawrence F. Winthrop joined.

B R O W N, Judge:

¶1 Contreras Farms Limited, LLC (“CFL”) appeals the superior 

court’s order finding that under state law CFL was not entitled to 

administratively appeal a requirement to construct a water main pursuant 

to Phoenix City Code § 37–33(a). For the following reasons, we affirm. 

BACKGROUND

¶2 Arizona law, by statute, gives property owners the right to an 

administrative appeal when a city or town requires “a[n] exaction as a 

condition of granting approval for the use, improvement or development 

of real property.” A.R.S. § 9-500.12(A)(1).1 The right to pursue such an 

appeal, however, “does not apply to a[n] . . . exaction required in a 

legislative act by the governing body of a city or town that does not give 

discretion to the administrative agency or official to determine the 

[exaction’s] nature or extent.” A.R.S. § 9-500.12(A)(1). In this case, we 

address the interplay between § 9-500.12 and a specific mandate in Phoenix 

City Code § 37–33(a) that requires developers to “furnish and install . . . all 

 

1 The word “exaction” is not defined under § 9-500.12, but it has been 

broadly described as a land-use decision that “condition[s] approval of 

development on the dedication of property to public use.” City of Monterey 

v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702 (1999); see also LandUse Exaction, Black’s Law Dictionary (10th ed. 2009) (“A requirement 

imposed by a local government that a developer dedicate real property for 

a public facility or pay a fee to mitigate the impacts of the project, as a 

condition of receiving a discretionary land-use approval.”). The City does 

not dispute that its decision requiring CFL to construct a water main 

constitutes an exaction. Thus, our analysis does not depend on the precise 

meaning of the term; instead, we address only whether CFL was entitled to 

appeal, pursuant to § 9-500.12, the City’s requirement that CFL construct a 

water main.
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

3

water mains . . . within the boundary of the development as well as the 

streets bounding the entire development.” 

¶3 The material facts relevant to this issue are undisputed. Near 

the end of 2013, Entellus, Inc., a civil engineering firm, submitted plans to 

the City of Phoenix Planning & Development Department (“Department”) 

on CFL’s behalf to build a charter school at 4275 West Baseline Road (the 

“Property”), located at the southeast corner of the 43rd Avenue and 

Baseline intersection.

2 As relevant here, the Department responded that 

there were no issues as to the existing 12-inch water main along Baseline 

Road but that under “City Code 37–33 . . . [a] 12-inch main extension will 

be required to be installed from Baseline to the south property line” along 

43rd Avenue. Shortly thereafter, CFL started construction of the charter 

school project. 

¶4 Meanwhile, Entellus filed a technical appeal with the Water 

Services Technical Appeals Committee (“Committee”) requesting that “the 

requirement to install a [] 12 [inch] water main extension in 43rd Avenue be 

deleted.” Entellus explained that (1) an existing water main was 

operational in the original alignment of 43rd Ave; (2) the City’s water 

system was already operating “very robustly in the vicinity of the school 

site”; and (3) because the school would be connecting to the water main on 

Baseline, it would not use or benefit from the required main along 43rd 

Avenue. The Committee denied the technical appeal “on the basis that 

[§ 37–33] requires all projects to install water mains along each of its project’s 

boundaries within paved public streets.” (Emphasis added.)

¶5 Entellus contacted the Committee, asking what the next level 

of appeal would be. The Committee informed Entellus that § 37–33 could 

not be waived, but CFL could attempt to “demonstrate how the intent of 

the Code was already met,” and the Director “may modify or interpret the 

code in a way that agrees with your rationale.” The Committee noted, 

however, it would be difficult to show that deleting the required water 

main extension would fit within the Code’s intent because “the City Code 

is pretty clear when requiring that all developments bound their site[s] with 

 

2 The City of Phoenix (“City”) relocated a portion of 43rd Avenue

sometime before December 2013 such that the centerline of the 43rd Avenue 

right-of-way located south of Baseline Road was now aligned with the 

centerline of the 43rd Avenue right-of-way lying north of Baseline Road. 

The realignment resulted in a traditional four-corner intersection.
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

4

water.” (Emphasis added.) CFL did not appeal the Committee’s decision 

and proceeded with constructing the 43rd Avenue water main.

¶6 In March 2015, CFL sent the City a demand letter requesting 

an exaction appeal under A.R.S. § 9-500.12(A)(1) to challenge the City’s 

decision to require installation of the 43rd Avenue water main. The City 

denied CFL’s request, stating that “[t]he requirement [CFL] wishes to

appeal is mandated by the City Code and therefore not subject to the appeal 

process described in A.R.S. § 9-500.12.” CFL filed a complaint for special 

action in the superior court seeking declaratory relief and damages. The

court granted summary judgment in favor of the City, concluding that “[§]

37–33 . . . is generally applicable, giving no discretion to the City to deviate 

from its City-wide mandate for construction in furtherance of its master 

water grid system.” The court also awarded attorneys’ fees and costs to the 

City. This timely appeal followed. 

DISCUSSION

¶7 CFL argues the superior court erred in granting summary 

judgment because it should have been given the opportunity to challenge 

the City’s water main requirement through an exaction appeal as 

contemplated by § 9-500.12. Summary judgment is proper when the

moving party “shows that there is no genuine dispute as to any material 

fact and the moving party is entitled to judgment as a matter of law.” Ariz. 

R. Civ. P. 56(a). We review de novo the court’s grant of summary judgment,

Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11 (2011), as well as the interpretation 

of statutes and ordinances, City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 

109, ¶ 7 (App. 2001).

¶8 The City required CFL to construct a water main as a 

condition of approving CFL’s proposed construction of a charter school. 

Thus, CFL had the right to challenge that requirement by pursuing an 

exaction appeal with the City unless the water main requirement was (1) 

included in a legislative act, and (2) did not give the City’s officials 

discretion in determining the nature or extent of the required water main. 

See A.R.S. § 9-500.12(A)(1); Am. Furniture Warehouse Co. v. Town of Gilbert, 

245 Ariz. 156, 164, ¶ 30 (App. 2018). 

¶9 Neither party disputes that § 37–33(a) constitutes a legislative

act as required by the first part of § 9-500.12(A)(1)‘s exception. Home 

Builders Ass’n of Cent. Ariz. v. City of Apache Junction, 198 Ariz. 493, 496, ¶ 7 

(App. 2000) (stating the adoption of an ordinance “is a legislative act that 

carries a presumption of validity”). But the second part of the statute 
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

5

requires interpretation of the City’s municipal code to determine whether 

the City has discretion in deciding whether, or to what extent, the water 

main requirement will be imposed. See A.R.S. § 9-500.12(A)(1). We 

interpret § 37–33(a) using the “same rules and principles governing the 

construction of statutes” with the primary goal of “ascertain[ing] and 

giv[ing] effect to the intent of the law-making body.” Abbot v. City of Tempe, 

129 Ariz. 273, 275 (App. 1981). We first look to the plain language of the 

provision and read it in the context of the ordinance as a whole “for 

guidance and [to ensure we] give effect to all of the provisions involved.” 

Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017). If the ordinance is

“subject to only one reasonable interpretation, we apply it without further 

analysis.” Wade v. Ariz. St. Ret. Sys., 241 Ariz. 559, 561, ¶ 10 (2017).

¶10 CFL argues the City has discretion to waive or modify the 

exaction because § 37–33(a) requires developers to have their plans 

approved by the Planning and Development Director, but it does not 

“mandate that a city official must require a developer to construct a water 

main.” Thus, CFL contends the Director may properly approve 

development plans that do not include construction of water mains.

¶11 In relevant part, § 37–33(a) provides: 

In . . . all other developments, other than a single residence on 

a single lot, where the City is to provide water service, the 

developer shall furnish and install in accordance with plans 

approved by the Planning and Development Director all water 

mains . . . within the boundary of the development as well as the 

streets bounding the entire development . . . . In addition, the 

developer shall furnish and install all off-site water mains as 

necessary to complete a looped connection to existing City 

mains as determined by the Planning and Development

Department. All water lines are to be constructed to conform 

with the City’s water distribution master grid system, and are 

to be constructed as a general area improvement whether 

they do, or do not, directly service the property being 

developed. 

(Emphasis added.) In adopting this language, the city council mandated 

that (except for a single residence on a single lot), developers must install 

water mains for streets bounding the development even if the water main 

will not “directly service the property being developed.” See Phx. City Code 

§ 37–33(a); see also Phx. City Code § 1–2 (“The word ‘shall’ is mandatory and 

the word ‘may’ is permissive.”).
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

6

¶12 The city council also mandated that developers have the plans 

for installing the water mains approved by the Department. The logical 

purpose for this requirement is to ensure their plans meet acceptable 

engineering standards and conform with the City’s water distribution 

master grid system. Although the Department can certainly disapprove 

plans that do not conform to those technical requirements, § 37–33(a) does 

not grant the Department discretion to determine that installation of a water 

main bounding the development is not necessary and thereby waive the 

city council’s legislative mandate. In comparison, the Code plainly 

provides the Department discretion regarding off-site water mains because 

developers are only required to “furnish and install” these mains “as 

necessary to complete a looped connection . . . as determined by the Planning 

and Development Department.” See Phx. City Code § 37–33(a) (emphasis 

added); see also Comm. For Pres. of Established Neighborhoods v. Riffel, 213 Ariz. 

247, 249–50, ¶ 8 (App. 2006) (“[W]e assume that when the legislature uses 

different language within a statutory scheme, it does so with the intent of 

ascribing different meanings and consequences to that language.”); cf. Am. 

Furniture Warehouse, 245 Ariz. at 164, ¶ 31 (concluding the town’s

imposition of a fee “necessarily involve[d] discretion” because the amount 

of the fee was determined by the property’s categorization, but the 

ordinance “[did] not define the categories or provide guidance in 

determining which category to use”). As it relates to CFL’s request for an 

exaction hearing, § 37–33(a) is subject to only one reasonable 

interpretation—an owner seeking to develop property must install water 

mains along each street that bounds the proposed development. 

¶13 CFL argues nonetheless that the City’s determination that a

12-inch main was necessary involved a “pure exercise of discretion” 

because the “City could have ordered a 10-inch, 8-inch, 6-inch, 4-inch or any 

other size” water main. Similarly, CFL argues that “[t]he selection of both 

the starting point and ending point” of the water main involved discretion. 

As the City notes, however, CFL has waived these arguments by failing to 

raise them in the superior court. See Englert v. Carondelet Health Network, 

199 Ariz. 21, 26, ¶ 13 (App. 2000) (stating “we generally do not consider 

issues, even constitutional issues, raised for the first time on appeal”). The 

only issue properly before us is whether CFL is entitled to an exaction 

appeal hearing based on the requirement that it install a water main along 

43rd Avenue. We further note that CFL never requested an exaction 

hearing based on the size or length of the water main; it only challenged 

whether the water main had to be installed. Thus, we decline to address 

whether a party may be entitled to an exaction appeal based on the specific 

technical requirements for installing a water main.
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

7

¶14 CFL further contends that if § 37–33(a) does not allow for the 

exercise of discretion, then it is legally invalid because it conflicts with two 

statutes, A.R.S. §§ 9-463.05 and 15-189.01, that CFL contends place limits on 

development fees. But CFL fails to cite any authority supporting the notion 

that a uniformly applied requirement to construct a water main could 

qualify as a development fee. And the statute authorizing the imposition 

of development fees, A.R.S. § 9-463.05, contains no language suggesting 

that it applies to these facts. 

¶15 Nor are we persuaded that § 37–33(a) conflicts with the plain 

language in either cited statute. See also Outdoor Sys., 201 Ariz. at 110, ¶ 11

(explaining that our goal in construing the interplay between state statutes 

and ordinances is to avoid finding a conflict). The only possible relevance 

of § 9-463.05 to this case is subsection (B)(11), which contemplates that a 

municipality may require construction of certain facilities “as a condition of 

development approval,” and in such a scenario, the municipality “shall 

provide a credit toward the payment of a development fee.” CFL has not 

identified any portion of the record indicating the City required it to pay a 

water development fee and that CFL constructed the water main with the 

expectation of a credit towards the fee.

¶16 Finally, § 15-189.01(A) states that “[c]harter schools shall be 

classified the same as public schools . . . for the purposes of . . . site plan fees

and development fees.” The statute’s plain language does not exempt

public charter schools from paying development fees or building

infrastructure when required by city or town ordinances. See Kyrene Sch. 

Dist. No. 28 v. City of Chandler, 150 Ariz. 240, 243–44 (App. 1986) (concluding 

a “water system development fee” and a “wastewater system development 

fee” were development “fees” and not taxes; therefore, the school district 

was not immune from paying them). Additionally, CFL’s reliance on 

Apache Junction for the proposition that municipalities cannot impose 

development fees upon public schools is misplaced. In that case, we held 

that a city could not impose development fees upon residential 

developments for the purpose of public-school financing. 198 Ariz. at 500, 

501, ¶¶ 19, 21. Apache Junction is therefore irrelevant to the resolution of the 

issue in this case. 

¶17 In sum, we hold that the water main requirement at issue here 

is a legislative act that does not afford a city official or agency discretion to 

determine its nature or extent; therefore, CFL was not entitled to an exaction 

appeal under A.R.S. § 9-500.12(A)(1). Given this holding, we need not 

address the other arguments raised by the parties.
CONTRERAS FARMS v. PHOENIX, et al.

Opinion of the Court

8

CONCLUSION

¶18 We affirm the superior court’s order granting summary 

judgment and the related award of attorneys’ fees and costs in favor of the 

City. The City requests attorneys’ fees incurred in connection with this 

appeal pursuant to A.R.S. § 9-500.12(H), which states that the superior court 

has the “authority to award reasonable attorney fees incurred in the 

[administrative exaction] appeal and trial pursuant to this section to the 

prevailing party.” Because nothing in that language authorizes this court 

to award attorneys’ fees, we deny the City’s request.