Anderson v. Prescott

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ARTHUR G. ANDERSON, a married man; ELIZA C. ANDERSON, a
married woman; DR. TED WICKSTROM, an unmarried man,
Plaintiffs/Appellants,

v.

CITY OF PRESCOTT, an Arizona municipality, Defendant/Appellee.

No. 1 CA-CV 13-0458
FILED 08-14-2014

Appeal from the Superior Court in Yavapai County
No. P1300CV201201417
The Honorable Kenton D. Jones, Judge

AFFIRMED

COUNSEL

Musgrove, Drutz, Kack & Flack, P.C., Prescott
By James B. Musgrove, Mark W. Drutz, Jeffrey D. Gautreaux
Counsel for Plaintiffs/Appellants

Prescott City Attorney’s Office, Prescott
By Jon M. Paladini
Counsel for Defendant/Appellee
 ANDERSON et al. v. PRESCOTT
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MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Peter B. Swann joined.

W I N T H R O P, Judge:

¶1 Arthur G. Anderson, Eliza C. Anderson, and Ted Wickstrom,
M.D., (”Appellants”) appeal the superior court’s decision dismissing their
action against the City of Prescott (“the City”) as barred by the statute of
limitations. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 Appellants are residents of Prescott, Arizona. The Andersons
live on Downer Trail, south of that road’s intersection with Sierry Peaks
Drive. Wickstrom owns a business on nearby Gail Gardner Way.

¶3 From 1993 to 2006, the City adopted various development
agreements and neighborhood plans for the construction of residential
subdivisions and public roads in the area. These agreements and plans
called for blocking certain public roads until the completion of other
connecting streets. As a result, an emergency gate blocked Sierry Peaks
Drive just west of its intersection with Downer Trail when the Andersons
moved onto their property in 1997. In 2006, the City entered a development
agreement contemplating the “relocation of the gate” onto Downer Trail
south of its intersection with Sierry Peaks Drive and north of where the
Andersons live. The agreement stated the gate would remain in place until
the Prescott City Council (“the City Council”) approved its removal.

¶4 On May 5, 2007, the City Council approved the Downer Trail
Pavement and Utility Construction Project (“the Construction Project”),
authorizing the expenditure of public funds for improvements on Downer
Trail. In June 2007, the City blocked Downer Trail near its intersection with
Sierry Peaks Drive with a gate. In the spring of 2008, the City completed
construction on Downer Trail. On October 14, 2008, the City Council

1 The facts are drawn from Appellants’ complaint. See Fidelity Sec. Life
Ins. Co. v. State, 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998).

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approved Amendment One to the Construction Project (“Amendment
One”), allocating the expenditure of more public funds.

¶5 On August 12, 2008, the City Council voted to leave the gate
on Downer Trail. In January 2011 and on May 8, 2012, the City Council
voted again to leave the gate on Downer Trail.

¶6 On December 4, 2012, Plaintiffs filed a complaint against the
City seeking declaratory and injunctive relief. Among other alleged harms,
the complaint stated the gate inconvenienced motorists traveling on
Downer Trail, delayed emergency response time to residents south of the
gate, and increased traffic on Gail Gardner Way near Wickstrom’s business.
The complaint alleged the erection of the gate and paving of Downer Trail
violated four provisions of the Arizona Constitution.

¶7 Pursuant to Arizona Rule of Civil Procedure 12(b)(6), the City
filed a motion to dismiss for failure to state a claim upon which relief can
be granted. In part, the City argued Appellants’ claims were barred by the
one-year statute of limitations imposed by Arizona Revised Statutes
(“A.R.S.”) section 12-821 (West 2014).2 The City argued Appellants’ claims
accrued when the City placed the gate in its current location in 2007 or, in
the alternative, when the City Council voted to keep the gate in place in
August 2008. Appellants responded that the statute of limitations was
inapplicable because: (a) the City Council’s vote in 2012 was the accrual of
a new cause of action, (b) the presence of the gate on Downer Trail
constituted a continuing violation, and (c) Appellants’ attempts to remove
the gate through a vote of the City Council constituted the exhaustion of
administrative remedies, which would toll the statute.

¶8 The superior court concluded the cause of action accrued in
August 2008 when the City Council voted to leave the gate in place. The
court also concluded the 2011 and 2012 votes did not alter the finality of the
August 2008 decision to leave the gate in place. The superior court entered
judgment dismissing the complaint as barred by the statute of limitations.
Appellants filed a timely notice of appeal. We have jurisdiction pursuant
to the Arizona Constitution, Article 6, Section 9 and A.R.S. § 12-2101(A)(1).

2 We cite the current Westlaw version of the applicable constitutional
provisions, statutes, and rules, because no revisions material to this
decision have occurred since the events in question.

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DISCUSSION

¶9 Appellants argue the trial court erred by applying the statute
of limitations in A.R.S. § 12-821 and granting the City’s motion to dismiss
pursuant to Arizona Rule of Civil Procedure 12(b)(6). We review a decision
granting a motion to dismiss de novo. Coleman v. City of Mesa, 230 Ariz. 352,
356, ¶ 7, 284 P.3d 863, 867 (2012). We accept as true the facts alleged in the
complaint and affirm the dismissal only if the plaintiff would not be entitled
to relief under any interpretation of the facts susceptible of proof. Fidelity
Sec. Life Ins. Co., 191 Ariz. at 224, ¶ 4, 954 P.2d at 582.

I. Applicability of A.R.S. § 12-821

¶10 Appellants argue the statute of limitations in A.R.S. § 12-821
cannot apply to state constitutional claims seeking declaratory and
injunctive relief. We disagree.

¶11 In Flood Control District. of Maricopa County. v. Gaines, this
court upheld the constitutionality of A.R.S. § 12-821 as applied to state
constitutional claims “because it regulates rather than abrogates the time
within which an action must be filed against a public entity.” 202 Ariz. 248,
254, ¶ 18, 43 P.3d 196, 202 (App. 2002) (applying A.R.S. § 12-821 to an
inverse condemnation claim). Appellants attempt to distinguish their state
constitutional claims seeking declaratory and injunctive relief from the state
law claims at issue in Gaines and other cases seeking monetary damages.
Although Arizona law makes such a distinction for the notice of claim
requirement in A.R.S. § 12-821.01, this distinction rests, in part, on the plain
language of that statute. See State v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233,
245, ¶ 53, 165 P.3d 211, 223 (App. 2007) (injunctive relief); Martineau v.
Maricopa Cnty., 207 Ariz. 332, 335-37, ¶ 18-24, 86 P.3d 912, 915-17 (App.
2004) (declaratory action). By contrast, the statutory language of A.R.S.
§ 12-821 cannot support such a distinction. Under this statute, “All actions
against any public entity . . . shall be brought within one year after the cause
of action accrues and not afterward.” A.R.S. § 12-821 (emphasis added).
This court has observed “[t]he word ‘all’ means exactly what it imports. . . .
Standing by itself the word means all and nothing less than all.” Gaines, 202
Ariz. at 252, ¶ 9, 43 P.3d at 200 (quotation and citation omitted).
Accordingly, “All actions” in A.R.S. § 12-821 necessarily includes
Appellants’ state constitutional claims seeking declaratory and injunctive
relief.

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II. A.R.S. § 12-821 and Appellants’ Claims under the Gift and Taxation
Clauses

¶12 Appellants argue the City Council vote on May 8, 2012
restarted accrual and resulted in the timely filing of their December 2012
suit, including their claims under the Gift and Taxation Clauses.3 For the
purposes of the statute of limitations in A.R.S. § 12-821, “a cause of action
accrues when the damaged party realizes he or she has been damaged and
knows or reasonably should know the cause, source, act, event,
instrumentality or condition that caused or contributed to the damage.”
A.R.S. § 12-821.01(B); see Dube v. Likins, 216 Ariz. 406, 421, ¶ 7, 167 P.3d 93,
108 (App. 2007) (applying definition of accrual in A.R.S. § 12-821.01(B) to
statute of limitations in A.R.S. § 12-821).

¶13 Arizona case law acknowledges “the question of whether and
when statutes of limitations are applicable to declaratory relief actions is a
less than clear area of the law.” W. Cas. & Sur. Co. v. Evans, 130 Ariz. 333,
335, 636 P.2d 111, 113 (App. 1981). A statute of limitations does not begin
to run against an action for declaratory judgment until “some event in the
nature of a breach of contract” or “actual injury” occurs. Canyon del Rio
Investors, L.L.C. v. City of Flagstaff, 227 Ariz. 336, 341, ¶ 19, 258 P.3d 154, 159
(App. 2011) (quotation marks and citation omitted). To determine the
applicability of a statute of limitations in the context of a declaratory action,
we must “examin[e] the substance of that action to identify the relationship
out of which the claim arises and the relief sought.” Vales v. Kings Hill
Condo. Ass’n, 211 Ariz. 561, 566, ¶ 17, 125 P.3d 381, 386 (App. 2005), abrogated
on other grounds by Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373 (2006).

A. Accrual of Claims under A.R.S. § 12-821.01(B)

¶14 Appellants claim the City’s expenditure of public funds for
the Construction Project and Amendment One violates the Gift and
Taxation Clauses of the Arizona Constitution because that expenditure did
not promote a public purpose. Under the relevant provisions of the Gift
Clause, no “city . . . shall ever give or loan its credit in the aid of, or make

3 In this case, we consider Appellants’ claims under these clauses
together because Appellants predicate their complaint on the public
purpose requirement common to each clause. See Turken v. Gordon, 223
Ariz. 342, 346, ¶ 11-12, 224 P.3d 158, 162 (2010) (describing commonalities
between Gift and Taxation Clauses).

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any donation or grant, by subsidy or otherwise, to any individual.” Ariz.
Const. art. 9, § 7. To state a claim under this clause, a plaintiff must
demonstrate a city’s expenditure of public funds has no public purpose. See
Wistuber v. Paradise Valley Unified Sch. Dist., 141 Ariz. 346, 349, 687 P.2d 354,
357 (1984).4 As a result of this element and the definition of accrual in A.R.S.
§ 12-821.01(B), a cause of action under the Gift Clause accrues when the
damaged party realizes an injury and knows or reasonably should know a
city has expended public funds for a nonpublic purpose.

¶15 Pursuant to the relevant provisions of the Taxation Clause,
“all taxes . . . shall be levied and collected for public purposes only.” Ariz.
Const. art. 9, § 1. To determine whether a city’s expenditure of public funds
is for a public purpose, the court will refer to “the object sought to be
accomplished” and “the degree and manner in which that object affects the
public welfare.” City of Glendale v. White, 67 Ariz. 231, 237, 194 P.2d 435, 439
(1948) (citation omitted). Like accrual under the Gift Clause, a cause of
action under the Taxation Clause accrues when a damaged party realizes
an injury and knows or reasonably should know a city has expended public
funds for a nonpublic purpose.

¶16 In this case, Appellants challenge the combined expenditure
of funds for the Construction Project and Amendment One. We reject
Appellants’ argument that the May 2012 City Council vote declining to
remove the gate “restarted the clock” on accrual for these claims, because
the only vote after the erection of the gate in June 2007 that authorized the
further expenditure of public funds was the vote in 2008 for Amendment
One. We also reject the City’s argument that accrual occurred with the
placement of the gate on Downer Trail in June 2007, because that initial
placement predated the expenditure of funds for Amendment One, an
essential factual predicate to Appellants’ claims under the Gift and Taxation
Clauses. Instead, Appellants realized an injury and knew or reasonably
should have known the City had expended public funds for an allegedly
nonpublic purpose, at the latest, when the City completed construction
pursuant to Amendment One. We mark accrual, at the latest, from the
completion of Amendment One rather than its approval by City Council
because Appellants did not necessarily “know” the city expended public
funds solely from the City Council meeting. Cf. Long v. City of Glendale, 208
Ariz. 319, 325, ¶ 10, 93 P.3d 519, 525 (App. 2004) (“The requirement that a

4 The “inequitable or unreasonable consideration” prong is
inapplicable to Appellants’ claims in this case because Appellants are not
attacking a city contract. See Wistuber, 141 Ariz. at 349, 687 P.2d at 357.

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claimant ‘realize’ he has been damaged is inconsistent with the idea that
claimants can be deemed to have notice of a claim as a matter of law [from
the records of a public meeting] regardless of their actual knowledge of the
claim.”). Appellants’ complaint, however, fails to specify when the City
expended funds or completed construction pursuant to Amendment One;
we therefore conclude Appellants’ claims under the Gift and Taxation
Clauses accrued, at the latest, on October 14, 2008 when the City Council
approved the expenditure of funds for Amendment One.

B. The Continuing Violations Doctrine

¶17 Appellants next argue “[t]he gate represents a continuing
violation that accrues a new cause of action each day,” precluding
application of the statute of limitations to their claims. The continuing
violations doctrine saves a claim from the statute of limitations in cases
where a plaintiff alleges an on-going violation of rights through one of two
theories: (1) an aggregation of distinct bad acts, at least one of which falls
within the limitations period, see, e.g., O’Rourke v. City of Providence, 235 F.3d
713, 730 (1st Cir. 2001) (quotation marks and citation omitted) (Title VII
violation); or (2) a disaggregation of a single bad act perpetuated by the
defendant, allowing the plaintiff to recover for harm caused during the
limitations period even if claim accrual would otherwise start from the
initial action, see, e.g., Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 522
(6th Cir. 1997) (constitutional violation). See also White v. Mercury Marine,
Div. of Brunswick, Inc., 129 F.3d 1428, 1430 (11th Cir. 1997) (discussing
“modified” and “pure” continuing tort theories); Kyle Graham, The
Continuing Violations Doctrine, 43 Gonz. L. Rev. 271, 279-283 (2008)
(describing two types of continuing violations theories). Under the second
theory, a court must differentiate between an on-going violation and a
single violation’s “lingering effects.” Pitts v. City of Kankakee, Ill., 267 F.3d
592, 595-596 (7th Cir. 2001); Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)
(“[A] mere continuing impact from past violations is not actionable.”
(quotation marks and citations omitted)).

¶18 Appellants appear to rely on the second type of continuing
violations theory by arguing the presence of the gate is a continuing
violation. Appellants cite California v. Kinder Morgan Energy Partners, L.P.,
569 F. Supp. 2d 1073, 1085 (S.D. Cal. 2008), to argue the continued presence
of the gate is analogous to a continuing nuisance. In Kinder Morgan, the
defendants operated an industrial site for the storage and transportation of
petroleum products. Id. at 1079. Evaluating whether the statute of
limitations barred a nuisance claim, the court relied on the difference
between “permanent” and “continuing” nuisances where “the crucial test

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for a continuing nuisance is whether an offensive condition can be
discontinued or abated at any time,” concluding “Plaintiffs’ allegations that
Defendants’ actions are abatable at any time are crucial.” Id. at 1085-86.
Appellants’ also cite Kuhnle, 103 F.3d at 522, in support of their continuing
violations argument. In Kuhnle, the plaintiff challenged a county’s
resolution barring through-truck traffic on certain roads as a violation of an
asserted “constitutional right to intrastate travel.” Id. at 518, 521-22. The
court concluded the resolution and its enforcement deprived the plaintiff of
an asserted right every day it remained in effect. Id. 522.

¶19 By focusing on the continued existence of the gate, however,
Appellants confuse the proper comparator between the alleged violation
under the Gift and Taxation Clauses and the alleged violations in Kinder
Morgan and Kuhnle. A violation of the Gift Clause occurs when a city makes
a “donation or grant, by subsidy or otherwise” for a nonpublic purpose. See
Ariz. Const. art. 9, § 7. Similarly, a violation of the Taxation Clause occurs
when a city expends public funds for a nonpublic purpose. See Ariz. Const.
art. 9, § 1. As a result, the continued existence of an object paid for using
public funds is a mere continuing impact of the initial violation under the
Gift and Taxation Clauses. Cf. Wistuber, 141 Ariz. at 348, 687 P.2d at 356
(“By its agreement with the Association, the District released the
Association president from teaching duties but continued to pay a portion
of the president’s salary” (emphasis added)). In this case, therefore,
Appellants’ claims under the Gift and Taxation Clauses are predicated on
the expenditure of funds for a nonpublic purpose, not the gate that results
from that expenditure. Further, unlike the continuing nuisance in Kinder
Morgan, the alleged violation in this case cannot be abated. And although
the on-going presence of the gate mimics the on-going enforcement of the
county resolution in Kuhnle, the violation in this case was complete when
the City expended funds to complete construction.

¶20 Thus, despite the continued presence of the gate on Downer
Trail, Appellants have not alleged a continuing and therefore actionable
violation of the Gift and Taxation Clauses.5 Because Appellants’ claims
under the Gift and Taxation Clauses accrued in October 2008 and the
violations are not continuing in nature, A.R.S. § 12-821 time-bars
Appellants’ December 2012 claims.

5 The first theory of continuing violations is equally unavailing
because the 2011 and 2012 votes of the City Council did not involve the
allocation of public funds, so these actions cannot constitute “bad acts” for
the purposes of the continuing violations doctrine.

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C. Appellants’ Estoppel by Inducement and Administrative
Exhaustion Arguments

¶21 We reject Appellants’ argument that the City’s conduct
precludes it from arguing a statute of limitations defense under a theory of
estoppel by inducement. To be entitled to protection from the statute of
limitations on this theory, a plaintiff must (1) ”identify specific promises,
threats or inducements by the defendant that prevented the plaintiff from
filing suit,” (2) show “defendant’s promises, threats or representations
actually induced the plaintiff to forbear filing suit,” (3) show “defendant’s
conduct reasonably caused the plaintiff to forbear filing a timely action,” and
(4) “file suit within a reasonable time after termination of the conduct
warranting estoppel.” Nolde v. Frankie, 192 Ariz. 276, 280 ¶¶ 16-19, 964 P.2d
477, 481 (1998).

¶22 Appellants argue the City Council’s 2011 and 2012 votes
regarding the gate caused them to forbear filing suit because they believed
the dispute could be remedied through the political process. Even
assuming the 2011 and 2012 votes would satisfy the first prong of the Nolde
test, those votes could not reasonably have caused Appellants to refrain
from filing suit within the limitations period, because the cause of action
extinguished one year after the October 2008 accrual, long before the subject
votes occurred.

¶23 Appellants also argue their pursuit of a “political solution”
before the City Council is analogous to a plaintiff who must seek the
exhaustion of administrative remedies prior to filing suit. See Minor v.
Cochise Cnty., 125 Ariz. 170, 172, 608 P.2d 309, 311 (1980) (“It is a well
recognized principle of law that a party must exhaust his administrative
remedies before appealing to the courts.”). We reject this argument because
Appellants point to no case law making such an analogy between the
availability of elective local political processes and mandatory
administrative proceedings. Appellants also fail to demonstrate how the
facts in this case relate to the purpose of the exhaustion of remedies
doctrine. See Parisi v. Davidson, 405 U.S. 34, 37 (1972) (“The basic purpose
of the exhaustion doctrine is to allow an administrative agency to perform
functions within its special competence—to make a factual record, to apply
its expertise, and to correct its own errors so as to moot judicial
controversies.”).

¶24 Finally, Appellants argue “fairness” dictates the
inapplicability of the statute of limitations to their claims. We reject this
argument because Appellants cite no case in which an Arizona court

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adopted this theory, and they fail to develop an argument regarding how a
court would apply such a theory.

III. Insufficiency of Appellants’ Pleadings under the Equal Privileges
and Immunities Clause and the Special Laws Clause

¶25 When evaluating the City’s motion to dismiss for failure to
state a claim, “well-pleaded material allegations of the complaint are taken
as admitted.” See Aldabbagh v. Ariz. Dep’t of Liquor Licenses & Control, 162
Ariz. 415, 417, 783 P.2d 1207, 1209 (App. 1989). We do not accept as true,
however, “inferences or deductions that are not necessarily implied by
well-pleaded facts” or “unreasonable inferences or unsupported
conclusions from such facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389,
¶ 4, 121 P.3d 1256, 1259 (App. 2005) (citation omitted). Although the
superior court granted dismissal pursuant to the statute of limitations
argument, we may affirm if the dismissal is correct for any reason. See Espil
Sheep Co. v. Black Bill & Doney Parks Water Users Ass’n, 16 Ariz. App. 201,
203, 492 P.2d 450, 452 (1972).

A. Appellants’ Claims under the Equal Privileges and Immunities
Clause

¶26 In their complaint, Appellants claim the erection of the gate
and the paving of Downer Trail violate the Equal Privileges and Immunities
Clause of the Arizona Constitution. Under the Equal Privileges and
Immunities Clause, “No law shall be enacted granting to any citizen [or]
class of citizens . . . privileges or immunities which, upon the same terms,
shall not equally belong to all citizens.” Ariz. Const. art. 2, § 13. The clause
prohibits public entities from unconstitutionally discriminating against a
person or class. See Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550,
557, 637 P.2d 1053, 1060 (1981). Arizona case law has construed the
contours of this clause along the same lines as the Equal Protection Clause
of the Fourteenth Amendment of the United States Constitution. See Big D
Const. Corp. v. Court of Appeals for State of Ariz., Div. One, 163 Ariz. 560, 565-
66, 789 P.2d 1061, 1066-67 (1990); Valley Nat. Bank of Phoenix v. Glover, 62
Ariz. 538, 554, 159 P.2d 292, 299 (1945).

¶27 To present a prima facie case of discrimination, plaintiffs must
allege an unlawful classification by government action. See Aegis of Ariz.,
L.L.C. v. Town of Marana, 206 Ariz. 557, 570-71, ¶ 54, 81 P.3d 1016, 1029-30
(App. 2003); see also United States v. Horton, 601 F.2d 319, 323-324 (7th Cir.),
cert. denied, 444 U.S. 937 (1979) (“[A]ny equal protection argument[] requires
the existence of at least two classifications of persons which are treated

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differently under the law.”). Although that classification need not be
discriminatory on its face, plaintiffs must allege a discriminatory purpose
or intent behind the classification. Cf. Washington v. Davis, 426 U.S. 229, 239
(1976) (“[O]ur cases have not embraced the proposition that a law or other
official act, without regard to whether it reflects a racially discriminatory
purpose, is unconstitutional solely because it has a racially disproportionate
impact.”). Even without direct evidence of a discriminatory motive, “an
invidious discriminatory purpose may often be inferred from the totality of
the relevant facts.” Id. at 242.

¶28 In this case, Appellants allege the gate creates a “private
enclave” benefiting and injuring certain residents. In effect, Appellants
claim the City classified residents based on their location on Downer Trail
north or south of Sierry Peaks Drive. The facts in the complaint, however,
do not establish how the presence of a single gate across a public road leads
to the necessary inference that the City classified residents to create the
alleged “private enclave” and the benefits and injuries that flow from that
classification.

¶29 Examining the well-plead facts alleged in the complaint, we
cannot accept as true the inference that the City classified residents to create
a “private enclave.” In their complaint, Appellants state, “The Andersons,
who live south of the gate, cannot reach neighboring houses to the north by
vehicle unless they drive approximately 2.5 miles [out of the way]. The
situation is the same for residents who live north of the gate and wish to reach
other residents who live south of the gate.” (Emphasis added). Appellants
also state “the overwhelming majority [of taxpayers] cannot use” Downer
Trail south of the gate and the road “is not immediately accessible to all
taxpayers.” (Emphasis added). And Appellants state the gate “increases
the amount of traffic on Gail Gardner Way” and “delays emergency
response time and the arrival of first responders” to residents living south
of the gate. Taken together, these facts—the only facts in the complaint
discussing the effects of the gate6—do not lead to the legally-required
inference that the City classified residents based on their location.

6 The other effects discussed in the complaint, Appellants’ claims that
the City created a “private enclave” where certain residents living south of
the gate receive “the privilege of a paved road” and “an immunity from
traffic” not available to all residents, are not facts but unsupported
conclusions.

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¶30 Further, Appellants have not plead several facts necessary to
sustain a claim alleging the violation of the Equal Privileges and Immunities
Clause. For example, Appellants do not state that the City Council created
a facial classification of residents with its authorization of the Construction
Project and Amendment One. Nor do Appellants allege any facts
identifying or demonstrating a discriminatory purpose behind the City’s
actions. As a result, Appellants merely describe the adoption of the 2006
development agreement, the City Council’s approval of the Construction
Project and Amendment One, and the votes to leave the gate in place
without alleging any facts demonstrating the City classified its residents
based on location.

¶31 We conclude Appellants have not stated a claim because they
have not factually demonstrated by reasonable inference or otherwise a
classification by the City that triggers a claim under the Equal Privilege and
Immunities Clause. We therefore affirm the decision of the superior court.

B. Appellants’ Claims under the Special Laws Clause

¶32 Appellants also claim the City violated the Special Laws
Clause by discriminating in favor of some residents through the creation of
a “private enclave.” While the Equal Privileges and Immunities Clause
prohibits discrimination against a person or class, the Special Laws Clause
prohibits discrimination in favor of a person or class. See Ariz. Downs, 130
Ariz. at 557, 637 P.2d at 1060. Under the provisions of the Special Laws
Clause relevant to this case, “No local or special laws shall be enacted
[when]: . . . [l]aying out, opening, altering, or vacating roads, plats, streets,
alleys, and public squares[;] . . . [g]ranting to any corporation, association,
or individual, any special or exclusive privileges, immunities, or
franchises[;] [or] . . . a general law can be made applicable.” Ariz. Const.
art. 9, pt. 2, § 19(8), (13), (20). “Legislation does not violate the special law
prohibition if (1) the classification is rationally related to a legitimate
governmental objective, (2) the classification is legitimate, encompassing all
members of the relevant class, and (3) the class is elastic, allowing members
to move in and out of it.” Long v. Napolitano, 203 Ariz. 247, 253, ¶ 14, 53 P.3d
172, 178 (App. 2002) (citing Republic Inv. Fund I v. Town of Surprise, 166 Ariz.
143, 149, 800 P.2d 1251, 1257 (1990)).

¶33 Assuming without deciding Appellants have satisfied the
pleading requirement with regard to the first two prongs of the Long test,
we conclude Appellants have not plead any facts to establish the class is not
elastic. In their complaint, Appellants’ lone allegation as to elasticity states:
“the class is not elastic because these taxpayers cannot move in and out of

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the class because they can only enter the class by purchasing real estate,
which is a finite resource.” This unsupported conclusion does not
demonstrate the inelasticity of the class of property owners on Downer
Trail, because it fails to identify what government action prohibits residents
from alienating their property. Because Appellants have not stated any
facts that demonstrate the inelasticity of the alleged class, we affirm the
decision of the superior court dismissing Appellants’ claim under the
Special Laws Clause.

CONCLUSION

¶34 We conclude the statute of limitations applies to Appellants’
claims under the Gift and Taxation Clauses and that such claims accrued,
at the latest, in October 2008. The presence of the gate did not constitute a
continuing violation, and inducement by estoppel does not apply. We also
conclude Appellants’ complaint failed to state a claim for which relief could
be granted under the Equal Privileges and Immunities Clause and Special
Laws Clause. The superior court decision dismissing the action is affirmed.

:gsh

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