Simpson v. Committee Against Unconstitutional Takings, L.L.C.

972 P.2d 1027, 193 Ariz. 391, 275 Ariz. Adv. Rep. 12, 1998 Ariz. App. LEXIS 129
CourtCourt of Appeals of Arizona
DecidedJuly 28, 1998
DocketNo. 1 CA-CV 98-0246
StatusPublished
Cited by4 cases

This text of 972 P.2d 1027 (Simpson v. Committee Against Unconstitutional Takings, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simpson v. Committee Against Unconstitutional Takings, L.L.C., 972 P.2d 1027, 193 Ariz. 391, 275 Ariz. Adv. Rep. 12, 1998 Ariz. App. LEXIS 129 (Ark. Ct. App. 1998).

Opinion

NOYES, Presiding Judge.

¶ 1 After the Phoenix City Council (“Council”) rezoned two golf courses in the Arizona Biltmore Estates, Defendants-Appellants (“Kabuto”) circulated a referendum petition and obtained enough signatures to have the rezoning decision referred to the voters. After the City of Phoenix (“City”) set the date for a referendum election, Plaintiff-Appellee Harold Simpson filed this lawsuit to block the election. The complaint alleged that the referendum petition was invalid because it referred an administrative act rather than a legislative act. In essence, Simpson argued that the referendum petition was invalid because Kabuto attached to it the rezoning ordinance when it should have attached the minutes of the meeting at which the Council made the rezoning decision. Relying mainly on Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 811 P.2d 22 (1991), the trial court found the referendum petition invalid and enjoined the City from holding the election. Kabuto appealed.

¶ 2 We distinguish Pioneer Trust because, there, the minutes were approved before the ordinance was adopted and, here, the ordinance was adopted first. We also distinguish Pioneer Trust because it predated the enactment of Arizona Revised Statutes Annotated (“A.R.S.”) section 19-121(E), a statute which expressly provides that, when the adopted ordinance pre-exists the approved minutes, the ordinance should be attached to the petition, as Kabuto did here. Because we conclude that Kabuto’s petition was valid, we reverse the injunction order and remand for dismissal of the complaint.

I.

¶ 3 The Phoenix City Planning Commission’s zoning application Z-92-97-6 sought to rezone about 231 acres of Kabuto’s property from RE-35 (residential estate district) to GC (golf course district), thereby preserving the use of that property as golf courses and preventing other uses. At a public hearing on December 10, 1997, the Council voted to approve the rezoning application. On December 17, the Council adopted Ordinance G-4066, which changed the City’s official zoning map to show GC zoning on the property. The minutes of the December 10 meeting were approved on January 14,1998.

¶4 Arizona Revised Statutes Annotated section 19-142(A) (Supp.1997) provides that a referendum petition “shall be filed with the city or town clerk within thirty days after passage of the ordinance, resolution or franchise.” Section 19-142(C) provides that “the thirty-day period specified in subsection A begins on the day that the ordinance or resolution is available from the city or town clerk, and the ordinance or resolution shall not become operative until thirty days after the ordinance or resolution is available.”

¶ 5 On December 19, Kabuto obtained a referendum number, R-l-97, from the city clerk so that it could circulate a petition to have the rezoning decision placed on the ballot at the next special election. The clerk provided Kabuto with the adopted ordinance and a zoning map of the property, and Kabuto attached these documents to the petition, together with a legal description of the property. Kabuto then circulated the petition to collect signatures, and it filed the petition with the required number of signatures on January 16, 1998 — the day the ordinance would have taken effect had the petition not been filed. See A.R.S. §§ 19-142(B), -142(C) (Supp.1997). After the clerk certified the petition, the Council, pursuant to the Phoenix City Charter, Chapter XVI, section 3.A, reconsidered and re-adopted the ordinance, and set a special election. See A.R.S. § 16-204(B).

¶ 6 Simpson, a Biltmore Estates property owner, filed this complaint to block the special election, and Biltmore Hotel Partners filed a motion to intervene. (Simpson and Biltmore are hereinafter referred to as “Appellees.”) After a hearing, the trial court found the petition invalid and enjoined the City from holding the election. The court concluded: “The adoption of the ordinance on December 17 was not a legislative act and therefore cannot be subject to a referendum election.... The legislative action which [393]*393was taken on December 10, 1997 was not attached to the signature sheets which were circulated.” Our jurisdiction of the appeal is pursuant to A.R.S. sections 12-120.21(A)(1) (1992) and 19-122(C) (Supp.1997). See Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380, 381-82, 825 P.2d 1, 2-3 (1992).

II.

¶ 7 The trial court found that the referendum petition was invalid as a matter of law. We review that finding de novo. See Arizona Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991).

¶ 8 The Arizona Constitution provides that legislative actions are subject to referendum. See Ariz. Const. art. 4, pt. 1, § 1(8) (“[T]en pereentum of the electors may propose the Referendum on legislation enacted within and by such city, town, or county.”). Zoning decisions are legislative acts. “In multiple decisions over a lengthy period, this court has consistently held that zoning decisions are legislative acts subject to referendum.” Fritz v. City of Kingman, 191 Ariz. 432, 957 P.2d 337 (1998).

¶ 9 A referendum petition must “comply strictly with applicable constitutional and statutory provisions.” Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 429, 814 P.2d 767, 770 (1991). Whether Kabuto strictly complied with the law is an issue that turns on whether Pioneer Trust is as universal in application as Appellees argued and the trial court coiicluded.

¶ 10 In Pioneer Trust, a county board of supervisors decided to allow a rezoning, but it set numerous conditions that the property owner had to meet before the board would adopt the rezoning ordinance. 168 Ariz. at 64, 811 P.2d at 25. A citizen’s group promptly sought a referendum election, and it attached to the petition the approved minutes of the meeting at which the board had granted conditional approval of the rezoning application. Seeking to block the referendum election, the property owner argued that the conditional approval was not subject to referendum; it argued that the contestants had to wait until the board adopted the rezoning ordinance. In rejecting that argument, the Pioneer Trust court concluded that the logical time for a referendum is “when the rezoning is conditionally approved. This is shortly after the contested proceedings and public hearings____ It is also before owners, developers, and lenders expend huge sums of money to comply with the conditions.” Id. at 66, 811 P.2d at 27. The court explained that “practical as well as legal considerations lead us to conclude that conditional approval of rezoning is a referable legislative act.” Id.

¶ 11 Although Pioneer Trust

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Bluebook (online)
972 P.2d 1027, 193 Ariz. 391, 275 Ariz. Adv. Rep. 12, 1998 Ariz. App. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-committee-against-unconstitutional-takings-llc-arizctapp-1998.