The Tohono O’odham Nation v. City of Glendale – 5/3/2011

May 11, 2011

Arizona Court of Appeals Division One Holds That Municipal Annexations That Are Timely Challenged In Court Do Not Automatically Become Final After 30 Days.

The City of Glendale adopted an ordinance to annex a parcel of land in November 2001.  A timely challenge to the ordinance was brought in superior court by an affected landowner pursuant to A.R.S. § 9-471(C).  In May 2002 Glendale adopted another ordinance repealing the November 2001 ordinance and purporting to abandon the attempted annexation. 

Seven years later, after the Tohono O’odham Nation announced plans to build a casino on the unincorporated land, Glendale passed another ordinance asserting that the November 2001 annexation attempt had become final automatically after 30 days pursuant to A.R.S. § 9-471(D), and that the May 2002 ordinance abandoning the annexation was a legal nullity.  The Nation brought suit against Glendale, and on opposing motions for summary judgment the superior court agreed with Glendale.  The Nation timely appealed.

The Court of Appeals reversed and remanded the case with instructions to enter judgment for the Nation.  The pertinent part of § 9-471(D) states, “The annexation shall become final after the expiration of thirty days from the adoption of the ordinance annexing the territory . . . subject to the review of the court to determine the validity thereof if petitions in objection have been filed.”  The Court held that the plain language of the “subject to” clause indicates the legislature’s intent to make the finality of the annexation conditional upon judicial review of a timely challenge.  The automatic 30-day finality provision applies only if no valid court challenge has been filed.

Although the Court did not resort to other statutory construction tools because it held the statute to be unambiguous, a lengthy footnote noted the Court’s agreement with the Nation and the amicus curiae brief filed by the City of Tolleson that Glendale’s interpretation of the statute would lead to “chaotic” results.  If a timely challenged annexation nevertheless becomes final after 30 days, a judgment upholding the challenge would essentially be a judicial de-annexation, which could require voiding of election results, return of tax revenue, and overturning criminal convictions.

Judge Winthrop authored the opinion; Judges Hall and Thompson concurred.