Brown v. City of Phoenix – 8/27/2024

January 22, 2025

Arizona Court of Appeals, Division One affirms the superior court’s permanent injunction as clarified, requiring the City to abate a public nuisance on public property it owns and controls near “the Zone” in Phoenix

Plaintiff business and property owners near “the Zone” sued the City of Phoenix for declaratory, special action, and injunctive relief. The Zone is a homeless encampment in Phoenix with as many as 1,000 individuals living in tents. In August 2022, Plaintiffs filed a complaint asserting five causes of action and applied for a preliminary injunction.  The court held an evidentiary hearing in October 2022 and granted Plaintiff’s request for a preliminary injunction. The City timely appealed from the preliminary injunction. In July 2023, the court held a bench trial and issued a minute entry finding that Plaintiffs were entitled to a permanent injunction and mandamus relief. The court ordered the City to “abate the nuisance it presently maintains on the public property in the Zone” and ordered the City to “maintain its public property in the Zone in a condition free of” tents, biohazardous materials and “individuals committing offenses against the public order.”

On appeal the City did not dispute that the Zone constituted a “public nuisance” under Arizona statutory and common law. The Arizona Court of Appeals found that the superior court’s findings of fact, in granting the preliminary and permanent injunction, were supported by the record. Thus, the Court’s focus was on whether the superior court properly applied the substantive law. The Court found the permanent injunction was not moot, articulated Arizona’s standard for permanent injunction, affirmed the injunction as clarified, and determined the City’s other arguments were not outcome-determinative.

First, the Court held that the permanent injunction was not moot, because “the permanent injunction imposes ongoing obligations on the City” and “[b]ecause the conditions amounting to a public may reoccur.”

Next, the Court articulated the standard for mandatory injunctions in Arizona. Generally, “the standard for a party to obtain a permanent injunction under Arizona law requires a showing that: (1) the plaintiff prevailed on the merits; (2) damages will not provide an adequate remedy; (3) the balance of hardships favors the plaintiff and (4) public policy favors the permanent injunction.” Here, the Court applied a heightened standard because “by obligating the City to act (rather than prohibiting it from acting) [the injunction] is properly called a mandatory injunction” and “should be granted only in cases of great necessity or under compelling circumstances, such as where extreme or serious damage would result absent the relief, and is not issued in doubtful cases.”

Then, the Court affirmed the permanent injunction as clarified: (1) finding courtesy rides did not create or maintain public nuisance, (2) disagreeing with the City’s causation argument, and (3) limiting the definition of “public property” in the permanent injunction order.

The Court explained “courtesy rides”—transporting homeless individuals from other parts of Phoenix into the Zone to receive services at the Human Services Campus (HSC)—did not result in the City’s “having maintain[ed] a public nuisance in the Zone.” The superior court improperly concluded that the City created or maintained a nuisance in the Zone by offering “courtesy rides” because “[t]here is no evidence that people transported to the Zone after receiving ‘courtesy rides’ remained in the zone; it is unclear where such individuals . . . should be transported to after receiving HSC services; and the evidence suggested such ‘courtesy rides’ were provided “perhaps five times per year.”

The City also argued that it could not be held liable for a public nuisance caused by actions beyond the City’s control. The Court of Appeals disagreed. “The City properly may be held responsible for a public nuisance, and to abate a public nuisance on land it owns and controls.” The Court, finding that the evidence showed the Zone had “persistent violence, drug use, other crime, human waste, and litter,” held that “the superior court did not err in finding the City was responsible for abating a public nuisance on property that the City owns and controls.”

The Court ultimately held the mandatory injunction, as clarified, was sufficiently specific. Under Arizona Rule of Civil Procedure 65(d) “[e]very order granting an injunction” must “state its terms specifically” and “describe in reasonable detail . . . the act or acts restrained or required.” The permanent injunction required the City to “abate the nuisance it presently maintains on the public property in the Zone . . . .” But the injunction did not define “public property.” At oral argument, the parties acknowledged that, as referenced in the injunction, “public property” was limited to public property owned by the City. Additionally, the Court noted “the City must abate the public nuisance on land it owns and controls in the Zone, but not land in the Zone owned or controlled by others.” Therefore, the Court affirmed the permanent injunction, with the clarification that the “public property” referred to is limited to public property in the Zone that the City owns and controls.

The City made a number of other arguments, including that the permanent injunction violates the political-question doctrine and exceeds the limits of mandamus; that the City is entitled to absolute immunity under A.R.S. § 12-820.01; and that Plaintiffs failed to establish the equitable factors necessary for equitable relief. The Court found that each of those arguments failed.

Judge Thumma delivered the opinion of the Court, in which Judges Campbell and Brown joined.

Posted by: Molly Walker