Bradford v. City of Tucson, No. 2 CA-CV 2024-0231 (App. Div. II, May 29, 2025) (J. Kelly) https://www.appeals2.az.gov/Decisions/CV20240231Memo.pdf

CITY OF TUCSON NOT IMMUNE FROM PUBLIC & PRIVATE NUISANCE CLAIM REGARDING HANDLING OF HOMELESS CAMP ON CITY PROPERTY/”CONSENTING” TO AN ACTIVITY CREATING A NUISANCE ON CITY PROPERTY THAT INTERFERES WITH PUBLIC'S USE AND ENJOYMENT OF PUBLIC LAND RENDERS CITY LIABLE

Plaintiffs own land adjacent to the Navajo Wash [Wash] in the Hedrick Acres Neighborhood in Tucson. The Wash is owned by the City of Tucson. A homeless camp began in the Wash as early as 2019 and was designated a tier 3 “high problem” area by the City in April 2023. This City homeless encampment policy required “72 hour notice to vacate” required criminal behavior be addressed, public services offered and cleanup by the City.  The plaintiffs brought this action seeking a special action, injunction, writ of mandamus requiring the City to address this alleged public and private nuisance.

The trial court held a bench trial and found that while the City is not immune from nuisance claims (A.R.S. § 12-820.01 “exercise of an administrative function involving the determination of fundamental government policy”) it was essentially in compliance with its Tier 3 policy and there was no nuisance. The Arizona Court of Appeals reversed in part and remanded.

A nuisance is the use of property or course of conduct,

regardless of an actual trespass or intention, which represents an

unreasonable use of one's own property, which thereby obstructs or injures

the right of another person, or that of the public, and causes “material

annoyance, inconvenience, and discomfort .  .  .  .  a nuisance is public

“when it affects rights of ‘citizens as a part of the public,

while a private nuisance is one which affects a single individual or a definite

number of persons in the enjoyment of some private right which is not

common to the public.'

Arizona's public nuisance statute provides that anything “injurious to health, indecent, offensive to the senses or an obstruction to the free use of property that interferes with the comfortable enjoyment of life or property by an entire community or neighborhood” is a public nuisance. A.R.S. § 13-2917(A)(1).

Here there was ample evidence of human feces, otherwise unsanitary conditions, criminal and specifically drug related and otherwise dangerous activities and disturbances all resulting in a “significant interference with the public's use and enjoyment of the Navajo Wash” over a long period of time and continuing. This conduct established a public and private nuisance. There was ample evidence that the City's tier system actually “set in motion” the nuisance by creating an “amenity”—food and services and thus “invited” an encampment. The City is liable if it merely “consents” to the activity causing the nuisance.  The trial court is directed to enter judgment in favor of plaintiffs and grant them injunctive relief.