Vista Verde v. Maricopa County

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VISTA VERDE HOMEOWNERS ASSOCIATION, an Arizona non-profit
corporation; FIRST AMERICAN TITLE INSURANCE COMPANY, a
California corporation, As Trustee under Trust No. 8422; and RIO VERDE
SERVICES, INC., a Minnesota corporation, Plaintiffs/Appellants,

v.

MARICOPA COUNTY, a political subdivision of the State of Arizona,
Defendant/Appellee.

No. 1 CA-TX 14-0014
FILED 11-24-2015

Appeal from the Superior Court in Maricopa County
No. TX2012-000072
The Honorable Christopher T. Whitten, Judge
The Honorable Dean M. Fink, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Mooney, Wright & Moore, Mesa
By Paul J. Mooney, Bart S. Wilhoit
Counsel for Plaintiffs/Appellants

Maricopa County Attorney’s Office, Phoenix
By Peter Muthig
Counsel for Defendant/Appellee
 VISTA VERDE et al. v. MARICOPA COUNTY
Decision of the Court

MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.

B R O W N, Chief Judge:

¶1 Vista Verde Homeowners Association, First American Title
Insurance Company, and Rio Verde Services (collectively, “Vista Verde”),
appeal the tax court’s entry of summary judgment in favor of Maricopa
County (“the County”) on Vista Verde’s challenge to a 2009 property tax
assessment. For the following reasons, we affirm in part, vacate in part,
and remand for further proceedings.

BACKGROUND

¶2 On October 28, 2011, Vista Verde filed a notice of claim
challenging the Maricopa County Assessor’s (“Assessor”) valuation of
thirty-one parcels of real property located within the Vista Verde Unit One
residential subdivision (“the Property”) for tax years 2009, 2010, and 2011,
and requesting valuation of the Property as “common area,” which would
substantially lower the tax assessement. The Assessor accepted Vista
Verde’s proposed valuation correction as to the 2011 tax year, but rejected
the proposed valuation corrections for the prior years. Vista Verde then
filed a petition for review with the Arizona State Board of Equalization
(“the Board”). At a hearing before the Board, the County agreed to a
revised 2010 assessment of the Property, but denied the proposed 2009
correction, and the Board found no error in the County’s assessment of the
Property for 2009.1

1 It is undisputed that the Property’s actual use and legal classification
on January 1, 2008, the valuation date for tax year 2009, was identical to its
actual use and legal classification on January 1, 2009, the valuation date for
tax year 2010. Under the Assessor’s “internal policy,” a property’s use may
be reclassified as “common area” if the property is “deeded over” to a
homeowners’ association by June 30th of the relevant tax year. The County
characterizes the Assessor’s decision to reclassify the Property for the 2010

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¶3 Vista Verde then filed a complaint in tax court appealing the
Board’s denial of its claim. Specifically, Vista Verde asserted the Property
should have been identified as residential common area pursuant to
Arizona Revised Statutes (“A.R.S.”) section 42-134022 and assessed
accordingly. Vista Verde further argued that the Assessor erred in valuing
the Property because, by statute, the Property’s full cash value may not
exceed its market value and current usage must be considered in
determining the full cash value.

¶4 As the litigation ensued, Vista Verde provided its initial
disclosure statement, explaining that the tracts of land at issue were not
developable or marketable, as confirmed by the subdivision plat map. Vista
Verde asserted that the Assessor has a duty to use “aerial photography,
department of revenue records, building permits and other documentary
sources and technology” in satisfying its obligation to identify and examine
all real property that is subject to taxation. See A.R.S. § 42-13051. Vista
Verde further asserted that the Assessor erred in “designating and
describing the use and classification” of the Property, which “should be
valued at its current use,” after following relevant guidelines and taking
into account similarly situated properties.

tax year as common area, notwithstanding the untimely transfer of deed to
the homeowners’ association on July 1, 2010, as a “gift.”

2 Title 42, Chapter 13, Article 9 “establishes the exclusive method for
identifying and valuing common areas.” A.R.S. § 42-13401. As defined by
A.R.S. § 42-13402(B), “common areas consist of improved or unimproved
real property that is intended for the use of owners and residents and
include common beautification areas[.]” Qualification as a common area
requires the following: (1) the property must be owned by a nonprofit
homeowners’ association, community association or corporation; (2) the
association or corporation must be organized and operated to provide for
the maintenance and management of the common area property; (3) all
residential property owners in the development must be required to be and
must actually be members of the association or corporation, or must be
obligated to pay mandatory assessments to maintain and manage the
common areas; (4) all members of the association or residential property
owners in the development . . . must have a right to use and enjoy the
common areas; and (5) the common areas must be deeded to the association
or corporation.

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¶5 Vista Verde then filed a motion to compel the County to
respond to several discovery requests, including access to the Assessor’s
complete file on the Property, requests for admissions, and a deposition.
Vista Verde asserted the requested information was necessary to determine
how the Assessor classified and valued the Property for 2009. In response,
the County requested a protective order, arguing the dispositive issue—
whether the Property qualifies as statutory common area—could be
resolved as a matter of law.

¶6 Following oral argument on the motions, the tax court found
that Vista Verde’s complaint framed only one cognizable claim, namely, the
County failed to properly identify and assess the Property as a common
area under A.R.S. § 42-13402.3 The court therefore denied Vista Verde’s
motion to compel and granted the County’s request for a protective order.

¶7 While the motion to compel was still pending before the tax
court, the County filed a motion for summary judgment, arguing the
Assessor did not err in valuing the Property because the Property did not
qualify as common area pursuant to A.R.S. § 42-13402(C). The County
further argued that, because the Property “could not be classified as
common area,” the Assessor exercised discretion in valuing and assessing
the Property, and such discretion is not subject to statutory “error
correction relief.” On that basis, the County argued that Vista Verde’s
general claims regarding full cash value and usage were precluded because
Vista Verde failed to “timely appeal[] the valuation or classification of the
[] Property after being given notice of its assessed value,” as statutorily
required.

¶8 Consistent with its initial disclosure statement, Vista Verde
argued in its response and cross-motion for summary judgment that the
Property was “always intended to be common areas, available for the use
of the owners and residents of the Vista Verde residential subdivision.”
Vista Verde noted that the Property does not “have access to potable water,
sewer, electricity or cable” and explained that the Property is primarily
used for “roads, drainage, and/or landscaping.” Accordingly, Vista Verde

3 In reaching this conclusion, the tax court found the complaint’s
assertions that the Property “must be properly valued in accordance with
[numerous statutes that], among other things, define full cash value,
mandate that full cash value cannot exceed market value and mandate that
current usage shall be included” are “indisputably true,” but also
determined “they do not allege any objectively verifiable error, or for that
matter any error at all, apart from . . . the common area status[.]”

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asserted the Property was not “developable, [] marketable, and [its] use is
significantly restricted.” Vista Verde conceded, however, that the parcels
were not deeded to the homeowners’ association until July 1, 2010. Vista
Verde thus argued the Assessor erred by failing to identify and value the
Property according to its then current usage. Vista Verde asserted that the
Property should have been valued as a common area that is “not qualified
for statutory valuation method” or “limited use” property, as outlined in
the use codes published in the Arizona Department of Revenue’s Property
Use Code Manual, not “residential rural subdivided” land. Vista Verde
further argued that it did not have “the opportunity to determine why the
Assessor did not properly designate and describe the use” of the Property
because all discovery had been barred. In reply, the County asserted Vista
Verde’s restricted use arguments “were never alleged or disclosed.”

¶9 After the case was assigned to a different judge, the tax court
found that for tax year 2009 the Property did not qualify as common area
as defined by A.R.S. § 42-13402(B). Concluding that the statute “is the
exclusive method for identifying and valuing common areas,” and the
Property did not satisfy the statutory qualifications, the tax court held the
County “did not err in not classifying the property as ‘community area’ for
2009.” Thus, the court granted the County’s motion for summary judgment
and denied Vista Verde’s cross-motion for summary judgment. Vista
Verde timely appealed.

DISCUSSION

¶10 Vista Verde contends the tax court erred by granting
summary judgment in favor of the County and denying its cross-motion for
summary judgment because the County “mistakenly designated the
current use” of the Property “when it established the full cash values” for
2009. Specifically, Vista Verde argues the Assessor failed to investigate the
Property’s current use, as mandated by statute, when evaluating and
assessing the Property in 2009, and had the Assessor done so, the Property
would have been identified as a “limited use” or “restricted use” property.4

¶11 Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment

4 To the extent Vista Verde suggested in its briefing that the Property’s
use was the same for 2009 as 2010 and 2011, and its 2009 classification and
assessment therefore should be statutory common area consistent with the
favorable tax treatment applied in subsequent years, Vista Verde expressly
withdrew the claim at oral argument and we therefore do not consider it.

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as a matter of law. Ariz. R. Civ. P. 56(a). We review a summary judgment
ruling de novo, Ariz. Dep’t of Revenue v. South Point Energy Ctr., LLC, 228
Ariz. 436, 439, ¶ 11 (App. 2011), and view the evidence in the light most
favorable to the non-moving party. Nat’l Bank of Ariz. v. Thruston, 218 Ariz.
112, 116, ¶ 17 (App. 2008). As a general rule, we liberally construe statutes
imposing taxes in favor of taxpayers and against the government.
Wilderness World, Inc. v. Dep’t of Revenue, 182 Ariz. 196, 199 (1995) (“Tax
statutes are interpreted strictly against the state, and any ambiguities are
resolved in favor of the taxpayer.”).

¶12 When a property owner believes property “has been valued
too high or otherwise improperly valued,” the owner may pursue an
administrative appeal by petitioning the assessor for relief. A.R.S. § 42-
16051(A). The property owner must file the petition “within sixty days after
the date the assessor mailed the notice of valuation . . .[.]” A.R.S. § 42-
16051(D) (emphasis added).

¶13 Here, it is undisputed that Vista Verde received timely notice
of the 2009 valuation with an aggregate full cash value of $12,573,700, but
failed to pursue an administrative appeal with the Assessor challenging the
valuation. The sixty-day post-notice limitation for petitioning an
assessment does not apply, however, if an assessment challenge is brought
pursuant to A.R.S. §§ 42-16251 to -16259 (“Error Correction Statutes”);
A.R.S. § 42-16256(B) (limiting challenges brought under the Error
Correction Statutes “to the current tax year in which the notice of error or
notice of claim is filed and the three immediately preceding tax years”).
Under these statutes, and as relevant here, a property owner may challenge:

[A]ny mistake in assessing or collecting property taxes
resulting from:

....

(b) An incorrect designation or description of the use or
occupancy of property or its classification pursuant to [the
property classification statutes].

....

(e) Subject to the requirements of § 42-16255, subsection B, a
valuation or legal classification that is based on an error that
is exclusively factual in nature or due to specific legal
restriction that affects the subject property and that is
objectively verifiable without the exercise of discretion,

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opinion or judgment and that is demonstrated by clear and
convincing evidence, such as:

(i) A mistake in the description of the size, use
or ownership of land, improvements or
personal property.

(vi) Any other objectively verifiable error that
does not require the exercise of discretion,
opinion or judgment.

A.R.S. § 42-16251(3).

¶14 In this case, Vista Verde sought relief under the Error
Correction Statutes, contending the County erred by incorrectly
designating the Property’s use. Vista Verde’s complaint set forth the
following theories of relief:

Plaintiffs filed a timely “Taxpayer Notice of Claim” with the
Assessor on October 28, 2011, pursuant to A.R.S. § 42-16254.
In the “Taxpayer Notice of Claim,” Plaintiffs contended that
the Subject Property had been improperly assessed because
the value and classification of the Subject Property had been
determined for tax year 2009 based upon errors, as the term
“error” is defined in A.R.S. § 42-16251(3).

The “errors” arise from the fact that the Subject Property
qualifies as residential common area and should have been
identified and assessed as such pursuant to A.R.S. § 42-13401,
et seq. Moreover, the Subject Property must be properly valued in
accordance with A.R.S. §§ 42-11001(6), 42-11054, 42-16162, and
42-16002. These provisions, among other things, define full cash
value, mandate that full cash value cannot exceed market value and
mandate that current usage shall be included in the formula for
reaching a determination of full cash value.

(Emphasis added.) Consistent with the general allegations of the
complaint, Vista Verde argues, the Assessor overvalued the Property by
failing to account for the Property’s actual use when calculating its value.
See A.R.S. § 42-13402 (explaining all property that does not qualify as
statutory common area “shall be valued using standard appraisal
techniques”). Specifically, according to Vista Verde, the Assessor erred by
determining that the Property had the same use as the developable lots
within the subdivision. Because the tax court found the scope of Vista

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Verde’s complaint was limited to a statutory common area claim, the court
never reached this issue.

¶15 The complaint arguably fails to set forth sufficient well-pled
facts to support either a claim that the Property qualifies as “common area”
or that its actual use was not properly considered in the valuation. See
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008) (explaining a
complaint “that states only legal conclusions, without any supporting
factual allegations, does not satisfy Arizona’s notice pleading standard
under Rule 8.”). We need not decide, however, whether the complaint
would have survived a Rule 8 challenge, because the County neither filed
a motion to dismiss under Rule 12(b)(6) nor a motion for a more definite
statement under Rule 12(e). Based on our review of the record, it is clear
the County knew at the outset of the litigation that Vista Verde was also
challenging the Assessor’s valuation of the Property, separate and apart
from its statutory “common area” claim. Indeed, the County expressly
acknowledged this claim in its motion for protective order. Thus, the
purpose of Arizona’s pleading standard, “to give the opponent fair notice
of the nature and basis of the claim,” was satisfied. Id. at ¶6. Vista Verde’s
complaint placed the County on actual notice of its alternative claim that
the Assessor’s valuation of the Property did not properly account for its
current usage. Accordingly, the tax court’s implicit dismissal of that claim
from consideration was erroneous.5

¶16 The County argues that Vista Verde may not bring this type
of valuation challenge under the Error Correction Statutes. First, citing
Pima County Assessor v. Ariz. Bd. of Equalization, 195 Ariz. 329 (App. 1999),
the County argues Vista Verde is barred from challenging the use
designation the Assessor employed in valuing the Property because Vista
Verde knew or should have known of the alleged error at the time the
Assessor mailed the 2009 notice of valuation and failed to timely challenge
the assessment in that tax year.

5 To the extent the County argues Vista Verde is precluded from
claiming that the Property’s use should have been designated as
“restricted” or “limited” because it failed to use those terms or associated
“use codes” in the complaint, we are not persuaded. The County was aware
Vista Verde was challenging the Property’s use designation, and it is of no
consequence that the argument became more refined and specific as the
litigation progressed.

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¶17 In Pima County, a property owner raised a classification
challenge pursuant to the Error Correction Statutes after having previously
filed an administrative appeal for the same tax year. 195 Ariz. at 331, ¶ 1.
Applying A.R.S. § 42-16256(A), which permits an owner who is a good faith
purchaser “without notice of any error” at the time the property was
purchased to bring a claim under the Error Correction Statutes, we held that
an error correction claim may be brought subsequent to an administrative
appeal. Id. at 336, ¶ 25. In analyzing A.R.S. § 42-16256(A), we distilled two
principles relating to the Error Correction Statutes:

First, if the taxpayer knew or reasonably should have
discovered an “error” within A.R.S. section 42-16251(3) in
sufficient time to assert it through a tax appeal, then sections
42-16251 to -16259 cannot later provide a remedy. Second, if
the “error” has escaped the taxpayer’s attention despite the
exercise of reasonable care to discover it in time, sections 42-
16251 to -16259 can provide a remedy regardless of whether
the taxpayer prosecuted a tax appeal for the tax year in
question.

Id. at 336, ¶ 26.

¶18 Unlike the circumstances at issue in Pima County, here, Vista
Verde is not a new owner and no administrative appeal challenging the
2009 tax assessment was previously filed. Moreover, this precise issue was
squarely addressed by a recent decision of this court, Edw. C. Levy Co. v.
Maricopa County, 1 CA-TX 14-0007, 2015 WL 2383856, (Ariz. App. May 7,
2015) (mem. decision) (explaining the principles set forth in Pima County
apply only when the taxpayer has previously filed an administrative
appeal). Although not controlling, we find the reasoning set forth in Levy
both instructive and persuasive. See Ariz. R. Sup. Ct. 111(c) (providing that
a memorandum decision may be cited for persuasive value if it was issued
after January 1, 2015, and no opinion adequately addresses the issue before
the court.) Therefore, the directive from Pima County charging a taxpayer
with constructive knowledge does not apply here.

¶19 Next, relying on A.R.S. § 42-16255(B), the County asserts that
error correction relief is not available because Vista Verde seeks a review of
the overall valuation or legal classification of the Property, but failed to file
a timely administrative appeal pursuant to A.R.S. § 42-16051(D). Again, we
turn to this court’s decision in Levy, 1 CA-TX 14-0007 at 5, which addressed
this same issue.

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¶20 At the time Vista Verde filed its complaint, A.R.S. § 42-
16255(B) provided:

This article does not authorize an independent review of the
overall valuation [or legal classification] of property that
could have been appealed pursuant to article 2, 3, 4 or 5 of this
chapter or chapter 19, article 2 of this title. If an
administrative or judicial appeal is pending regarding the
subject property, the alleged error shall be adjudicated as part
of the administrative or judicial appeal for the affected tax
year. If a specific error of fact, not previously known, was not
addressed in a prior appeal, an appeal may be brought
pursuant to this section.

A.R.S. § 42-16255(B) (2009).

¶21 “In 2014, the legislature amended § 42-16255(B) to omit the
first sentence.” Levy, 1 CA-TX 14-0007 at 5, ¶ 18; see also A.R.S. § 42-16255(B)
(2015); 2014 Ariz. Sess. Laws, ch. 249, § 9. At the same time, the legislature
also added the following language to A.R.S. § 42-16256(D): “This article
does not authorize an independent review of the overall valuation or legal
classification of property that is not a result of an error as defined in § 42-
16251.” A.R.S. § 42-16256(D) (emphasis added); 2014 Ariz. Sess. Laws, ch.
249, § 10.

¶22 “An amendment which, in effect, construes and clarifies a
prior statute will be accepted as the legislative declaration of the original
act.” Levy, 1 CA-TX 14-0007 at 5, ¶ 19 (quoting City of Mesa v. Killingsworth, 96 Ariz. 290, 297 (1964)); see also Ariz. State Senate Fact Sheet for S.B. 1352
(2d Reg. Sess. 2014) (noting that the purpose of the 2014 amendments were
to make “various technical and conforming changes”). Although the
circumstances of this case predate the statutory amendment, “the
amendment clarifies the legislature’s original intent and persuades us that
the prior version of § 42-16255(B) does not prevent an overall review of
valuation or classification that results from the correction of a statutorily
defined error.” Levy, 1 CA-TX 14-0007 at 5, ¶ 19; see also Police Pension Bd.
v. Warren, 97 Ariz. 180, 187 (1965) (“While subsequent legislation clarifying
a statute is not necessarily controlling on a court, it is strongly indicative of
the legislature’s original intent.”).

¶23 The legislature enacted the Error Correction Statutes “to
provide a simple and expedient procedure for correcting of errors occurring
in assessing or collecting property taxes.” 1994 Ariz. Sess. Laws, ch. 323, §

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53 (2d Reg. Sess.). “To adopt the County’s position that A.R.S. § 42-16255(B)
prevents [a property owner] from filing an error correction claim to correct
[a] classification error would undermine that legislative intent.” Levy, 1 CA-
TX 14-0007 at 5, ¶ 20; see also State v. Seyrafi, 201 Ariz. 147, 150, ¶ 11 (App.
2001) (holding courts should “apply practical, common sense constructions
rather than hypertechnical ones that would tend to frustrate legislative
intent”). Section 42-16255(B) does not prohibit Vista Verde from
challenging the 2009 property tax assessment under the Error Correction
Statutes.

¶24 Finally, the County argues that the alleged error in use
classification does not fall within the scope of “errors” subject to and
remedied by the Error Correction Statutes. Specifically, the County
contends the Assessor’s valuation of the Property required the exercise of
discretion, opinion or judgment and is therefore not objectively verifiable
as required pursuant to A.R.S. § 42-16251(3)(e).

¶25 As noted above, supra ¶ 13, the Error Correction Statutes
allow a property owner to challenge a property tax mistake resulting from,
and as relevant here, (1) an incorrect designation or description of the use
of a property or its classification, or (2) an objectively verifiable mistake in
the description of the use of a property. A.R.S. § 42-16251(3)(b), (e)(i).

¶26 Even assuming the Assessor’s classification of the Property
and its use involved the exercise of discretion, opinion or judgment, thereby
precluding a claim under A.R.S. § 42-16251(3)(e), no such bar exists for a
challenge pursuant to A.R.S. § 42-16251(3)(b). See CNL Hotels & Resorts, Inc.
v. Maricopa Cty., 230 Ariz. 21, 25-26, ¶¶ 22-24 (2012) (holding a property
owner who is barred from challenging a use designation that involves
“factual determinations subject to discretion, opinion, or judgment” under
A.R.S. § 42-16251(3)(e) is not prevented from challenging the use
designation under A.R.S. § 42-16251(3)(b)); Lyons v. State Bd. of Equalization,
209 Ariz. 497, 501, ¶ 15 (App. 2005) (explaining an error challenged under
A.R.S. § 42-16251(3)(b) need not “be factual in nature or objectively
verifiable”). Therefore, Vista Verde’s alleged classification error falls within
the scope of A.R.S. § 42-16251(3)(b) and may be raised under the Error
Correction Statutes.

¶27 Vista Verde requests entry of summary judgment in its favor.
We decline to do so. Although we conclude Vista Verde has raised a viable
challenge to the Assessor’s valuation of the Property under the Error
Correction Statutes, at this stage of the litigation, and without the benefit of
discovery, unresolved factual issues relating to use and valuation preclude

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summary judgment. Therefore, we vacate the tax court’s protective order,
for the reasons stated above, supra ¶¶ 14-15, and remand for the court to
determine, in the first instance and allowing for the issue to be fully
developed, whether the Property was properly classified and valued for
2009.

¶28 Finally, both parties request an award of attorneys’ fees. Vista
Verde and the County each request attorneys’ fees pursuant to A.R.S. § 12-
349, alleging the other party unreasonably expanded or delayed the
proceeding. In our discretion, we deny both requests. Vista Verde also
requests attorneys’ fees pursuant to A.R.S. § 12-348, which provides for an
award of attorneys’ fees to a party that “prevails by an adjudication on the
merits” in a court proceeding to review a state, city, town or county
decision. Because neither party yet prevailed, we decline to award fees at
this stage of the proceedings. The tax court shall address fee requests,
including fees incurred on appeal, after the case has been resolved on the
merits. See Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 204,
¶ 37 (App. 2007).

CONCLUSION

¶29 For the foregoing reasons, we affirm the tax court’s ruling that
for tax year 2009 the Property did not qualify as a statutory common area
under A.R.S. § 42-13402(B). We vacate the court’s ruling denying Vista
Verde’s claim under the Error Correction Statutes and the protective order
entered in favor of the County. We therefore remand for further
proceedings consistent with this decision.

:ama

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