Town of Florence v. Florence Copper Inc. (D1 3.23.2021)

In 2003, the Town of Florence annexed a large piece of property and entered a development agreement with its property owner allowing the owner to develop the property as residential and also to operate a copper mine. The owner’s plan was to mine the copper and then build houses over the mine. Years later the Town changed its mind and decided it no longer wanted a copper mine within the Town’s limits. Owner’s successor (through a bankruptcy) later moved forward with developing the mine and not the homes. And, although owner did not feel it was necessary and later withdrew the request, the owner applied for rezoning and a special use permit for the mining operation.

The Town filed suit arguing a zoning ordinance adopted years after the agreement barred mining on the property. The court of appeals held the owner had a vested right, and the Town could not unilaterally rescind the prior agreement. Using alliterative words of flout, foist, fully and formally, the court holds the Town to its agreement: “We do not discount the tension between yesterday’s binding promises and today’s public opinion, but having agreed to the Development Agreement in 2003, the Town must comply with its terms.” The court also rejected the Town’s argument that the owner abandoned the mining rights.

The court of appeals concludes with affirming a $1.7 million award of attorney fees to the owner. The court approves of the superior court judge who had “used high-stakes or bet-the-company litigation as a barometer to determine the amount of fees. . . ” But how is this barometer a standard? Should there not be more analysis of a large statutory award of fees intended “to mitigate the burden of the expense of litigation.” A.R.S. § 12-341.01. No China Doll or lodestar calculation? We cannot tell whether it is reasonable to make such fee award to a copper company in a case that appears to be neither complex nor novel.

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