ESPINOSA, Presiding Judge.
¶ 1 In this special action, petitioners Grosvenor Holdings, L.C., K. Hovnanian Great Western Homes, L.L.C., and Tousa Homes, Inc., dba Engle Homes (petitioners) challenge the respondent judge's order denying
FACTS AND PROCEDURAL BACKGROUND
¶ 2 In 2000, petitioner Grosvenor purchased 453 acres of land in the County, planning to develop the property as a residential project called Entrada del Oro. On June 25, 2003, Grosvenor and the County entered into a development agreement (the Agreement),
¶ 3 With respect to the resolution of disputes between the parties, paragraph twenty-one of the Agreement entitled "ADMINISTRATIVE DISPUTE RESOLUTION PROCESS" states: "Any dispute between Developer and County arising from the failure of either party to comply with material terms and conditions of the Development Plan or this Agreement after an impasse has been reached, shall be resolved by a review hearing by the Board." After providing specific procedures and time limits for review by the Board, the paragraph further states:
¶ 4 Petitioners contend that by May 2006, significant infrastructure had been constructed and petitioners K. Hovnanian and Engle had purchased lots within Entrada del Oro and had begun construction. In April 2008, petitioners requested a five-year extension of the Agreement pursuant to paragraph three. It is undisputed that, during a meeting on June 11, 2008, the Board denied petitioners' request on the ground that the County wished to assess impact fees on the project in order to increase revenue. Petitioners did not receive notice of the Board meeting, but on June 26, 2008, the County sent a letter by electronic mail to petitioners telling them the Agreement had expired the day before and the County would begin assessing impact fees in connection with all future building permits issued in connection with the Entrada del Oro project.
¶ 6 Petitioners filed a motion for partial summary judgment, seeking the superior court's determination that the ARA does not apply to their lawsuit for a variety of reasons and that the court was not limited to reviewing for an abuse of discretion the Board's denial of its request to renew the Agreement. Petitioners asserted the ARA does not apply because: (1) review under the ARA is not the exclusive means provided by the Agreement for reviewing the Board's decision, but even if it were, the County did not comply with the terms of the Agreement in issuing its decision; and (2) if paragraph twenty-one does provide that review pursuant to the ARA is the exclusive means of obtaining judicial review, the provision is unenforceable because (a) the ARA does not apply to decisions by the Board and therefore the court lacks subject matter jurisdiction to address the complaint pursuant to the ARA, and (b) enforcement of the provision would violate petitioners' due process rights. The respondent judge denied petitioners' motion for partial summary judgment. He found paragraph twenty-one of the Agreement unambiguously requires disputes to be resolved by the Board after the Board conducts a review hearing. The respondent also found paragraph twenty-one "sets forth that, with certain qualifiers, `the Board's decision shall be subject to appeal and judicial review in the Superior Court. . . .' pursuant to [the ARA]."
¶ 7 Relying on Airport Properties v. Maricopa County, 195 Ariz. 89, 985 P.2d 574 (App.1999), the respondent judge found the language in the Agreement "must be read, in context, to mean that no appeal
SPECIAL ACTION JURISDICTION
¶ 8 This court generally will not accept jurisdiction to review an order denying a motion for summary judgment. Callan v. Bernini, 213 Ariz. 257, ¶ 2, 141 P.3d 737, 738 (App.2006). "There are, however, exceptions to that rule. One such exception is when `the question presented is a pure issue of law and the error by the trial court is patent.'" Id., quoting King v. Superior Court, 138 Ariz. 147, 150 n. 3, 673 P.2d 787, 790 n. 3 (1983). The interpretation of paragraph twenty-one and the interpretation and application of the ARA are purely questions of law. See Rand v. Porsche Fin. Servs., 216 Ariz. 424, ¶ 37, 167 P.3d 111, 121 (App.2007) (interpretation of contract question of law); In re Reymundo F., 217 Ariz. 588, ¶ 5, 177 P.3d 330, 332 (App.2008) ("interpretation of statutes and rules are questions of law"). This court may accept special action jurisdiction to determine a question of law before the case proceeds to trial in order to avoid the "unnecessary expenditure of time and money," ChartOne Inc. v. Bernini, 207 Ariz. 162, ¶¶ 8, 10, 83 P.3d 1103, 1106-07 (App. 2004), and "promote judicial economy and efficient use of the parties' and the court's resources." Ruesga v. Kindred Nursing Ctrs. W., L.L.C., 215 Ariz. 589, ¶ 16, 161 P.3d 1253, 1258 (App.2008); see also Callan, 213 Ariz. 257, ¶ 3, 141 P.3d 737, 738 (App.2006) (accepting special action jurisdiction and finding no reason to allow "case to proceed to trial only to have us hold on appeal that the respondent judge had no jurisdiction to conduct that trial"). Furthermore, we will accept jurisdiction of a special action when the trial court is "threatening to proceed without subject matter jurisdiction in excess of its authority." Kadera v. Superior Court, 187 Ariz. 557, 559, 931 P.2d 1067, 1069 (App. 1996); see also Ariz. R.P. Spec. Actions 3(b).
¶ 9 The first issue we must decide is whether the respondent judge erred when he implicitly found that paragraph twenty-one provides for review pursuant to the ARA as the exclusive means by which either party may obtain judicial review of the Board's resolution of the dispute between petitioners and the County, thereby barring the parties from filing a de novo complaint for breach of contract and related claims.
¶ 10 Paragraph twenty-one is the only provision in the Agreement that pertains to dispute resolution. It prescribes a specific process for resolving all disputes in the event the parties reach an "impasse," and requires the Board to issue findings of fact after conducting a review hearing. Paragraph twenty-one also states, clearly and unambiguously: "The Board's decision shall be subject to appeal and judicial review in the Superior Court of the State of Arizona in and for Pinal County pursuant to [the ARA]. . . ." Thus, it clearly purports to bar any other means of dispute resolution relating to an alleged breach of the contract, including the filing of an original complaint in the superior court, as petitioners did here.
¶ 11 "When construing a statute, we must `determine and give effect to legislative intent.'" Ariz. Dep't of Admin. v. Cox, 222 Ariz. 270, ¶ 8, 213 P.3d 707, 710 (App.2009), quoting City of Phoenix v. Phoenix Employment Relations Bd., 207 Ariz. 337, ¶ 11, 86 P.3d 917, 920 (App.2004). "We look first to the plain language of the statute because that is the best indicator of legislative intent. If the meaning of the language is clear, we do not employ any further methods of construction." Id. (citations omitted). Like the interpretation of statutes generally, the interpretation of the ARA is a question of law, which we review de novo. See Bolser Enters. Inc. v. Ariz. Registrar of Contractors, 213 Ariz. 110, ¶ 12, 139 P.3d 1286, 1288 (App. 2006) ("the interpretation of statutory requirements governing judicial review of administrative decisions [under the ARA] is a question of law").
¶ 12 The ARA provides for judicial review in the superior court of "a final decision of an administrative agency." § 12-902(A)(1); see also Bolser Enters., Inc., 213 Ariz. 110, ¶ 13, 139 P.3d at 1288 (ARA "grants the superior court jurisdiction to review a `final administrative decision'"). The ARA excludes from the definition of "administrative agency" any "political subdivision or municipal corporation or any agency of a political subdivision or municipal corporation." § 12-901(1). Petitioners contend the County is a municipal corporation for purposes of the ARA and by its terms, therefore, the ARA does not apply to its decisions. And, petitioners argue, the ARA cannot be made applicable by agreement, because that is tantamount to conferring jurisdiction upon the superior court that it does not have. The County concedes the Board is "excluded from the mandatory application of" the ARA because it is a political subdivision. But, the County insists, "this exclusion does not prohibit the Board from voluntarily subjecting its decisions to judicial review." Relying on A.R.S. §§ 11-251.21, 11-1202.I, the County asserts that "the Board is statutorily authorized to establish the terms under which it will transact business, including, but not limited to, providing for the judicial review of specific Board decisions."
¶ 13 "Subject matter jurisdiction is `the power of a court to hear and determine a controversy.'" State v. Bryant, 219 Ariz. 514, ¶ 14, 200 P.3d 1011, 1014 (App.
¶ 14 Petitioners contend "there can be no review under the [ARA] unless [it] or some other statute specifically authorizes review. And, where no such statutory authorization exists, a court lacks subject matter jurisdiction to proceed under the [ARA]." There is no such authority here, they assert, therefore, the respondent judge erred in processing the complaint pursuant to the ARA, notwithstanding the portion of paragraph twenty-one purporting to authorize the superior court to do so. Consequently, petitioners contend, that portion of the Agreement is unenforceable. We agree.
¶ 15 As we previously stated, the County concedes it is not an administrative agency for purposes of the ARA. Counties are political subdivisions of the state. See Dowling v. Stapley, 218 Ariz. 80, ¶ 11, 179 P.3d 960, 964-65 (App.2008); see also Sackey v. Cochise County Merit Comm'n, 122 Ariz. 586, 588, 596 P.2d 724, 726 (App.1979) ("The merit commission is an agency of the county and therefore not an `agency' as defined in the [ARA].") (citation omitted). The County and petitioners are both correct, therefore, that neither the County nor its governing body, the Board, is covered by the mandatory provisions of the statute. The County contends that, nevertheless, paragraph twenty-one is valid and enforceable because the County can, by agreement, confer jurisdiction upon the superior court to review a board's decision pursuant to the ARA, and they did so here. The County insists there is statutory and case law support for its argument.
¶ 16 Nothing in the ARA states or suggests that parties to a contract can agree to its application and confer jurisdiction on the superior court when the ARA is otherwise inapplicable. On the contrary, the statute's applicability provision, § 12-902, and its definitions section, § 12-901, clearly and unambiguously limit the scope of the ARA's application. The legislature has made clear that the ARA applies to final decisions of an administrative agency only, § 12-902(A), and that the terms "administrative agency" or "agency" do "not include an agency in the judicial or legislative departments of the state government, any political subdivision or municipal corporation or any agency of a political subdivision or municipal corporation." § 12-901(1). Had the legislature intended to include within the ARA's purview decisions by boards otherwise excluded by the definition of administrative agency, it could have done so. And, had it intended to permit excluded entities to render the ARA applicable by agreement, it could have done so as well.
¶ 18 The respondent judge concluded that his review of the Board's decision under the ARA was authorized by § 11-251(21) and § 11-1101(B)(10). Section 11-251, on which the County also relies, prescribes generally the powers and duties of a county's board of supervisors. See also State ex rel. Pickrell v. Downey, 102 Ariz. 360, 363, 430 P.2d 122, 125. (1967) (county "board of supervisors possesses only such power as is expressly conferred by statute, or is necessarily implied therefrom"). Section 11-251(21) provides that "under such limitations and restrictions as are prescribed by law, [a county] may . . . [m]ake and enforce necessary rules and regulations for the government of its body, the preservation of order and the transaction of business." But a development agreement is not a rule or regulation. And nothing in this subsection expressly authorizes the County to enter into a development agreement with a party who also does not fall within the purview of the ARA and provide for judicial review of the Board's resolution of a dispute between the County and the other party pursuant to the ARA.
¶ 19 Nor does § 11-1101(B)(10) authorize the County to agree that judicial review of the Board's decision under these circumstances shall be pursuant to the ARA. Section 11-1101 pertains generally to a county's authority to enter into a development agreement. Subsection (B) of the statute lists what the agreement "may specify or otherwise relate to"; subsection (B)(10) allows the county to include in such agreements "[a]ny other matters relating to the development of the property." But it does not provide the County may control application of the ARA.
¶ 20 The County's reliance on A.R.S. § 11-1202(I) is similarly misplaced. Section 11-1202(A) authorizes the county to "provide by ordinance or resolution the requirements for a development to be a phased development." And subsection (I) of the statute provides, "[a] protected development right is subject to the terms and conditions imposed by the county on the protected development right plan approval." Again, none of these provisions even mentions the ARA, and nothing in them permits a county to enter into a contract that purports to give the superior court jurisdiction under the ARA to review disputes resolved by a board in accordance with the terms of that contract.
¶ 21 Thus, there is no statutory authority supporting the portion of paragraph twenty-one that provides for judicial review of the Board's decision pursuant to the ARA. Absent such authority, the County and Grosvenor could not agree to confer such jurisdiction on the superior court. Parties cannot, by agreement or consent, confer subject matter jurisdiction on a court where it would not otherwise exist. See Kadera, 187 Ariz. at 562, 931 P.2d at 1072; Solomon v. Findley, 165 Ariz. 45, 46, 796 P.2d 477, 478 (App.1990); cf. In re 1988 Chevrolet 1/2 PU, 186 Ariz. 419, 421, 924 P.2d 109, 111 (App. 1996) (appellate courts have only such jurisdiction as legislature grants, and parties cannot confer jurisdiction by consent), overruled
¶ 22 We find equally misplaced the respondent judge's reliance on Boyce v. City of Scottsdale, 157 Ariz. 265, 756 P.2d 934 (App. 1988). That case stands, in part, for the proposition that the ARA does not apply to a decision by a city board of adjustment because it is a municipal corporation and expressly exempt from the purview of the ARA. 157 Ariz. at 269, 756 P.2d at 938. Moreover, the special action review by the superior court in that case was provided in and governed by A.R.S. § 9-462.06(J). Id. And the issue presented to Division One of this court was whether the City of Scottsdale Board of Adjustment had the authority to enact a rule that would permit the board to reconsider or rehear its previous decision, which affected the timeliness of the appellant's special complaint in the superior court. Id. at 266, 756 P.2d at 935. We fail to see how Boyce supports the respondent's order.
¶ 23 Nor has the County persuaded us that R.L. Augustine Construction Co. Inc. v. Peoria Unified School Dist. No. 11, 188 Ariz. 368, 936 P.2d 554 (1997), and Ayala v. Hill, 136 Ariz. 88, 664 P.2d 238 (App.1983), support its position. Neither case stands for the proposition that, although the County is statutorily exempt from the ARA, it nevertheless could consent to the superior court's review of a decision by the Board pursuant to the ARA.
¶ 24 In R.L. Augustine, the trial court had dismissed the complaint filed by R.L. Augustine Construction Company in superior court against the Governing Board of the Peoria Unified School District, seeking judicial review pursuant to the ARA of a decision by the Governing Board and the subsequent review by a hearing officer appointed by the Governing Board. The dispute related to delays in construction of an administration center. 188 Ariz. at 369, 936 P.2d at 555. The complaint also sought "a declaration that the Board of Education's procurement rules were unconstitutional because one of the parties to the contract, the Governing Board, as owner, also acted as the final agency decision maker." Id. The trial court dismissed the complaint on the ground that R.L. Augustine had failed to seek a rehearing pursuant to the Arizona Administrative Code (AAC) R7-2-1182, the Board of Education's procurement rules, which the Board had promulgated pursuant to A.R.S. § 15-213(A). Id. at 369-70, 936 P.2d at 555-56. The court of appeals reversed, holding that the procurement rules were unconstitutional and that the ARA did not apply to school districts. Id.
¶ 25 Vacating the court of appeals decision, the supreme court also reversed the trial court's ruling, finding, as had the court of appeals, that the ARA did not apply. Id. at 371, 936 P.2d at 557. The supreme court remanded the case to the trial court for a de novo review of the claims R.L. Augustine had raised in its complaint. Id. As the supreme court noted, the Board of Education's procurement rules were required to be consistent with Arizona's Procurement Code, §§ 41-2501 through 41-2637. Id. at 370, 936 P.2d at 556. But they differed in significant respects. First, the Board of Education's rules provided the same two-tiered system of review as the Procurement Code but with one important distinction: the initial decision and final decision were by the same entities, the Governing Board of the School District, also a party to the contract. Id. Second, the Board of Education's procurement rules did not provide for judicial review of the Governing Board's decision pursuant to the ARA, whereas the Procurement Code does. Id. at 371, 936 P.2d at 557; see A.R.S. § 41-2614.
¶ 26 The County relies on that portion of R.L. Augustine in which the supreme court
¶ 27 Nor are we persuaded that Ayala furthers the County's cause. In Ayala Division One of this court noted that a rule promulgated by the Maricopa County Law Enforcement Officers Merit System Council provided that the Council's decision would be "subject only to administrative review" under the ARA. 136 Ariz. at 92, 664 P.2d at 242. But the court did not address whether the Council could enact such a rule in the absence of a statute authorizing application of the ARA. "[T]he sole issue on appeal [from the superior court's denial of Ayala's request for special action relief in superior court was] whether the Maricopa County Law Enforcement Officers Merit System Commission . . . [could] rehear and redecide a disciplinary action previously ruled upon by the commission, absent statutory authority or an express rule permitting it do so." Id. at 89, 664 P.2d at 239. We note, moreover, as petitioners did in their reply, that the rule in Ayala that subjected a decision of the Commission to review pursuant to the ARA has since been amended, eliminating any reference to the ARA and providing instead that review shall be by a writ of certiorari in the superior court pursuant to A.R.S. § 38-1004(A).
¶ 28 We conclude that the portion of paragraph twenty-one providing for judicial review by the superior court pursuant to the ARA of the Board's resolution of disputes between the County and petitioner Grosvenor is void.
CONCURRING: J. WILLIAM BRAMMER, JR., and PETER J. ECKERSTROM, Judges.