(dissenting in part, and concurring in part).
' I concur with the majority opinion that the city has the power to condemn private property for parking in connection with an airport, and that the city need not have the funds on hand to pay for the property at the time the condemnation action is commenced. I dissent, however, from that part of the opinion which holds that the taking was not necessary as a matter of law. It is my view that the question of necessity is primarily a legislative one, which, although subject to limited judicial review in Arizona, cannot be disposed of by summary judgment. See Note, Judicial Review in Eminent Domain Proceedings, 15 Ariz.L.Rev. 796 (1973).
At the point where “necessity” supports exercise of the power of eminent domain, we have one of the clearest examples of the separation of powers, because the act of determining “necessity” is solely a legislative function. Mosher v. City of Phoenix, 39 Ariz. 470, 7 P.2d 622 (1932); 26 Am.Jur.2d, Eminent Domain § 111 (1966). In Citizens Utilities Water Co. v. Superior Court, 108 Ariz. 296, 497 P.2d 55 (1972), our Supreme Court, citing Mosher with approval, stated:
“We hold that the action by the City of Tucson to condemn the property of Citizens is a taking for public use, as that term is used in the Arizona Constitution.
“Citizens, however, contends that even if this is true, the taking of the properties outside the city that do not serve Tucson citizens, is not ‘necessary’ as required by the statutes and charter. The city takes the position that the determination of necessity is a legislative decision of the city council which may not be reviewed by the courts, absent fraud or arbitrariness.
“Since we have ample Arizona cases to determine this issue, there is no need to discuss the cases in other jurisdictions cited by Citizens. The issue was decided in Mosher v. City of Phoenix, 39 Ariz, 470, 7 P.2d 622, where we held:
‘Evidence [was objected to] upon the question of whether or not the amount of land proposed to be taken was necessary for the widening of the street. The court, in our opinion, properly held that this was concluded by the legislative body of the city declaring the necessity.’ p. 482, 7 P.2d p. 626.
We find an absence of arbitrariness on the part of the city here.
“At the trial, the Tucson City Manager testified as to the desirability of condemning all of Citizens’ properties. His reasons appear in the transcript as an offer of proof, because the trial court refused to admit them. The reasons are material and, even though not admitted in evidence, they are the bases of very powerful arguments for permitting all of the properties to be condemned. (108 Ariz. at 299, 497 P.2d at 58).
Implicit in the above language is the fact that Arizona courts will take evidence on *117the question of “necessity” in order to determine “fraud or arbitrariness”. Since all presumptions favor the city’s determination of “necessity”, the burden of proving fraud or arbitrariness is on the party opposing that determination, the appellees herein. Under these circumstances, time alone is not determinative of the issue. In Citizens, the Supreme Court, quoting with approval from City of Tucson v. Sims, 39 Ariz. 168, 4 P.2d 673 (1931), stated:
“That the city may anticipate its growth, may be seen from the following language in City of Tucson v. Sims, 39 Ariz. 168, 4 P.2d 673:
‘Before it could furnish its own residents with water it was necessary that it secure from some source a supply sufficient in quantity for this purpose and that it install a system for distributing it. . Its distributing system was built to meet the needs of a growing population and was, therefore, at that time capable of carrying water to a greater number of people than lived within its boundaries. The city of Tucson, as a result of placing itself in a position to serve its own users found itself in ownership and control of a surplus of domestic water which could with little if any additional cost be supplied to those outside its limits and its income thereby increased.’ Pp. 176-177, 4 P.2d p. 675.” (108 Ariz. at 300, 497 P.2d at 59).
Although Sims concerns the future growth of a city water system, the same rationale would apply to an airport. The needs of a modern airport (appellant operates one of the largest) are complex, requiring space for future planning and growth. On the state of the record before us, I cannot say that the city’s determination of “necessity” was improper or arbitrary, as a matter of law.
Recently, our Supreme Court reversed the granting of summary judgment in favor of a property owner on the issue of “necessity” in a case involving the expansion of Sky Harbor Airport. Although the Court did not cite Citizens, it is clear to me that the Supreme Court recognized that the issue of “necessity” always presents a genuine issue of material fact. See City of Phoenix v. Space Data Corp., Ariz., 534 P.2d 428 (1975).
Finally, I disagree with the conclusion reached by the majority concerning A.R.S. § 2-306, and its relationship to A.R.S. § 12-1112. In resolving the questiom of whether the city can condemn property for off-street parking in connection with an airport, we recognized that a special statute, A.R.S. § 2-306, governed the general statute on condemnation, A.R.S. § 12-1112, and therefore we concluded that Dono frio was inapplicable. Logic dictates the same conclusion insofar as these statutes concern the issue of “necessity”. The Supreme Court said as much in Citizens when, quoting from Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652 (1962), it stated:
“‘Section 12-1112 sets forth prerequisites which must be shown before the power of eminent domain may be exercised under the general eminent domain statutes. Where the exercise of eminent domain powers is authorized under a specific statute which has been complied with, it is not necessary to comply with the general statute.’ p. 171, 370 P.2d p. 657.” (108 Ariz. at 300, 497 P.2d at 59).
In my opinion, § 2-306 is a special statute in which the “necessity” of taking for airport purposes is legislatively delegated to the city. The general provision regarding “necessity” in § 12-1112, therefore, is inapplicable to an exercise of power under § 2-306, i. e., a taking for airport purposes.
For the above reasons, I must dissent from the majority’s conclusion that the taking in this case was not “necessary” as a matter of law. Consequently, I would reverse the summary judgment granted and remand the matter for an evidentiary hearing on the issue of “necessity”.