Statutory Authority to Pass Ordinance Imposing Development Fees
9-463.05(A) permits a municipality to "assess development fees to offset costs to the municipality associated with providing necessary public services to a development."
Although that statute clearly grants municipalities power to assess development fees for specific purposes within certain limitations, the question remains whether one of those purposes may be to finance public school capital needs.
In City of Scottsdale II, our supreme court found the phrase "necessary public services" in 9-463.05(A) to include water service, upholding a municipality's assessment of a development fee that would assist the municipality in complying with state statutes governing municipal water use.
Similarly, sewer service would likely also be considered a necessary public service.
See A.R.S. 9-276(A)(3) and (21) (authorizing construction and repair of sewers).
Whether "necessary public services" under the statute should be construed to allow a municipality to impose such a fee for school capital finance purposes appears to be an issue of first impression in Arizona.
Although the court stated in City of Mesa v. Home Builders Ass'n of Central Arizona, Inc., 111 Ariz. 29, 523 P.2d 57 (1974) that the tax involved in that case was imposed "on every person constructing a dwelling unit or a mobile home or trailer space," id. at 30, 523 P.2d at 58, the court did not have to determine whether such a tax could be applied to someone not in the business of building residences because the party objecting to the tax represented those who were. Section 9-240(B)(18) applies only to those "carrying on any business, game or amusement, calling, profession or occupation."
The Ordinance, in contrast, is not limited to those constructing a residence as part of their business or profession, but, rather, applies to issuance of any building permit.
See Apache Junction City Code 7-2-7. the Ordinance's application extends beyond the scope of 9-240(B)(18) and, therefore, cannot be based on it.
se provisions only give towns and cities, respectively, the power to define and abate nuisances. the record does not reflect that the structures to which the Ordinance applies constitute nuisances, that is, something that unreasonably interferes with another's enjoyment of his or her property and causes damage thereto, see Graber v. City of Peoria, 156 Ariz. 553, 753 P.2d 1209 (App. 1988), or that the trial court so concluded.
Section 9-276(A)(23) authorizes cities to make "local improvements by special assessments, by special taxation or otherwise, as they shall by ordinance prescribe."
A local improvement within the meaning of the statute is one that benefits primarily the adjacent or nearby assessed property, as opposed to the public at large, and thereby "peculiarly benefits" the assessed property. Home Builders Ass'n of Central Arizona, Inc. v. Riddel, 109 Ariz. 404, 407, 510 P.2d 376, 379 (1973);
see also City of Scottsdale II (in contrast to development or impact fees, a special assessment requires concrete plans that will result in immediate benefit to landowner on which assessment is levied).