THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 28, Rules of Civil Appellate Procedure

KELLY, Judge.

¶1 Pinal County appeals from the trial court's judgment denying its motions for summary judgment and granting in part a cross-motion for summary judgment filed by appellee Grosvenor Holdings, L.C., K. Hovnanian Great Western Homes, LLC, and Tousa Homes, Inc. (collectively Developers). The County argues the court erred by determining it was required as a matter of law to extend a development agreement (Agreement) between the parties, and by concluding an extension of the Agreement would not violate Arizona's Gift Clause, Ariz. Const. art. IX, § 7. Developers cross-appeal from the judgment, arguing the Agreement's fee waiver provision extends beyond the term of the Agreement, and the County's development fee ordinance is invalid pursuant to A.R.S. § 11-1102. We vacate and remand.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to the party against whom summary judgment was entered. Villa de Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 2, 253 P.3d 288, 291 (App. 2011). In June 2003, Developers and the County entered into a development agreement regarding a residential project known as Entrada del Oro. The Agreement provided that its initial term would be five years, and allowed Developers to request an extension for one additional five-year term. The parties agreed the County would not charge Developers any development or impact fees "in any phase of the construction of the development of the Property."

¶3 When the parties entered into the Agreement in 2003, Pinal County did not have a development fee ordinance in place. In 2005, the County commissioned TischlerBise1 to perform a development fee study and develop a Capital Improvements Plan (CIP) for the County. The proposed CIP was based on demographics estimates, development projections, and capital improvements studies regarding streets, parks, and public safety. The County adopted the CIP and implemented it by enacting development fee Ordinance No. 101806-DF in 2007, which was updated and replaced by Ordinance No. 030310-DF in 2010. The ordinance establishes a development fee schedule based on the infrastructure needs in each of seven "impact fee areas" (IFA). It also provides that "credits" may be provided against development fees where a developer provides public facilities, dedicates land, or pays fees to a county transportation fund.

¶4 Before the Agreement's initial five-year term expired in 2008, Developers requested an extension, which the Pinal County Board of Supervisors (Board) denied. Developers requested a review hearing, and the Board upheld the denial. The County began collecting impact and development fees, which Developers have paid under protest.

¶5 Developers filed a complaint against the County to determine their rights under the Agreement and to challenge the validity of the County's development fee ordinance. The County filed two motions for summary judgment, and Developers filed two cross-motions for summary judgment. The trial court ruled on the motions in September 2011, and entered an appealable judgment in December pursuant to Rule 54(b), Ariz. R. Civ. P. It granted one of Developers' motions in part, concluding they were entitled to an extension of the Agreement as a matter of law. It denied the remaining motions, determining the Agreement's fee waiver applied only during the Agreement's term; the Agreement did not implicate Arizona's Gift Clause; and Developers' argument challenging the County's fee ordinance pursuant to A.R.S. § 11-1102 was moot. The County appealed from the judgment, and Developers cross-appealed. Although we may review the denial of a motion for summary judgment in some circumstances, ordinarily we do not review such orders on appeal even after entry of final judgment, and we decline to do so here. Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, ¶ 11, 36 P.3d 1200, 1203 (App. 2001). Accordingly, we address only the County's appeal of the court's partial grant of summary judgment.2

Discussion

¶6 We review a trial court's ruling on a motion for summary judgment de novo. Villa de Jardines, 227 Ariz. 91, ¶ 5, 253 P.3d at 292. Summary judgment is proper when "`there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.'" Id., quoting Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 19, 158 P.3d 232, 239 (App. 2007); see also Ariz. R. Civ. P. 56(c)(1). Summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

¶7 The County argues the trial court erred by determining the Developers were entitled to an extension of the Agreement as a matter of law. We review issues of contract interpretation de novo. Miller v. Hehlen, 209 Ariz. 462, ¶ 5, 104 P.3d 193, 196 (App. 2005).

¶8 The Agreement provides, in relevant part:

The trial court correctly noted that the Agreement does not identify permissible bases for a "reasonable" denial and acknowledged that determinations of reasonableness are "usually questions of fact" inappropriate for summary judgment. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, ¶ 28, 165 P.3d 173, 180 (App. 2007) (reasonableness generally question of fact). Nonetheless, it concluded the Agreement's terms were "plain and unambiguous" and that "reasonable people could not agree that Pinal County reasonably denied the extension." The record, however, does not support the two findings upon which the court based its decision.

¶9 First, the trial court found the Agreement's term provision dictated that "Pinal County could only deny the Plaintiffs' extension request if the Plaintiffs were not diligently pursuing the project." We look to the contractual language in context, and will give effect to the contract's terms without further interpretation if they are clear and unambiguous. Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, ¶ 9, 218 P.3d 1045, 1050 (App. 2009).

¶10 The term provision states clearly that diligent pursuit of the project's completion is a condition for requesting an extension. But it does not state that diligent pursuit requires the County to grant an extension, and we decline to impose such a requirement as a matter of law in the context of summary judgment.3 See IB Prop. Holdings, LLC v. Rancho del Mar Apartments Ltd. P'ship, 228 Ariz. 61, ¶ 16, 263 P.3d 69, 74-75 (App. 2011) (court will not expand language or add to contract). Instead, the Agreement's plain language provides only that the County cannot unreasonably withhold, condition, or delay an extension.4

¶11 Second, the trial court found the County had not presented an issue of material fact as to whether it had a reasonable basis for denying the extension, stating the County had "largely offered legal conclusions in support of its denial." However, after the review hearing, the Board issued a thirteen-page decision that articulated extensive findings of fact in support of its denial. It explained unanticipated growth had more than doubled earlier estimates; detailed the impact of the fee waiver on public streets, parks, and safety; and outlined the reasons for the County's comprehensive plan for the area, which requires fees to provide transportation and control growth. It relied on data provided by TischlerBise, including the Public Safety Capital Improvements Program for New Growth and Development Fee Study. Ultimately, the Board concluded that "[f]or reasons of public health and safety and for the welfare of the public, renewal of the Agreement is unwarranted unless conditioned on imposition of development impact fees." More specifically, it explained that the value to the County of extending the Agreement would be "disproportionate to the effect and strain on public infrastructure the development has had to date, and will have in the future."

¶12 We do not agree that the Agreement's term provision can be interpreted as a matter of law to require the County to extend the Agreement as long as Developers comply with their contractual obligations. Nor can we agree the Board's findings were insufficient to present a question of material fact as to whether the denial was reasonable. We therefore conclude the trial court erred in deciding as a matter of law that the County was required to extend the Agreement.5 Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008.

Disposition

¶13 For the foregoing reasons, the judgment of the trial court is vacated and the matter is remanded for further proceedings consistent with this decision. Both parties have requested an award of attorney fees and costs on appeal pursuant to A.R.S. § 12-341.01. In our discretion, both requests are denied.

PHILIP G. ESPINOSA, Judge, RICHARD GORDON, Judge*, concurring.