July 2014 Updates
/The Arizona Court of Appeals, Division One, issued two opinions recently regarding land-use issues:
Mandamus not available to force county to call subdivision improvement construction performance bonds: In Ponderosa, et al. v. Coconino, et al., the court stated that the decision to "call," or enforce, a performance bond ensuring construction of subdivision improvements when a developer defaults on its obligation to construct those improvements is discretionary. An action in mandamus - or, an order from a court ordering an entity to do that which it is required to do - is not available to force a county to call the bond. Where does that leave property owners who purchased lots in a subdivision with the expectation the improvements would be built? The court left open whether a county could be liable in damages for the failure to call the bond. I would suggest exploring breach of fiduciary duty as a viable claim for such damages, especially if the county did call the bond but, for whatever reason, the improvements were still never constructed.
Res Judicata does not bar ADEQ's claim for UST remediation costs and penalties when UST owner misrepresented ownership of UST in previous proceedings: This decision in State v. Arnett is not earth-shattering in its conclusion: during the bankruptcy of an entity the Arizona Department of Environmental Quality (ADEQ) thought owned an underground storage tank (UST), the true owner of the UST, a party to that proceeding, did not disclose his ownership. The bankruptcy proceeding therefore did not bar ADEQ from later pursuing its remedies against the true owner of the UST because the law generally does not allow a person to benefit from his or her own fraud.