Referendums, three branches of government at local level
By Linda Bentley | July 9, 2008
CAVE CREEK – Rural/Metro Battalion Chief John Kraetz spoke during Call to the Public to report on the July 3 and 4 fireworks.
He said high winds on July 3 brought about a bit of a challenge. However, Kraetz said they bumped up the grand finale by about 15 minutes and the record crowd of about 3,000 was treated to a great show. He said the weather on July 4 was much nicer.
Town Attorney Gary Birnbaum made a brief presentation about the state referendum process.
He equated council, the town attorney and the town clerk to the legislative, judicial and the executive branches of government, respectively.
Arizona is one of only 16 states that grant full initiative and referendum rights, whereas citizens can pass laws they write, suspend statute passed by the legislature or make constitutional amendments, by collecting enough signatures to place an initiative or referendum on the ballot for a decision by the voters.
There are a smattering of states that allow for citizen initiatives and referendums, a few which allow only referendums and a few others that allow only constitutional amendments.
Birnbaum referred to citizen initiatives and referendums as “pure democracy” as compared to legislative democracy when laws are enacted by the legislature.
The logic, he said, behind distinguishing legislative acts from administrative acts for the purpose of determining whether an ordinance or resolution is referable is, “If every act could be referred, it would grind government to a halt.”
To determine if an act is legislative or administrative, Birnbaum said it depended upon whether it is introducing a new policy or implementing one.
“Introducing new policy is legislative,” said Birnbaum, and is therefore referable.
With respect to the recent referendum confusion over the dust ordinance to regulate PM-10, Birnbaum said, “In this case we arguably have a policy being implemented.”
What if the town clerk or town attorney is wrong? Birnbaum said there was lots of gray in that field.
In any event, a person has only 10 days from the date he is notified by the town clerk that the referendum petitions submitted will not be sent to the county elections department to file a mandamus action with the court to either order the petitions be processed or to rule the act administrative. In the alternative, he said a complaint can also be filed with the Arizona Attorney General.
When asked which municipality’s ordinance would take precedence in Cave Creek if there were inconsistencies between ordinances adopted by Maricopa County and the town as far as gaining compliance or penalties go, Birnbaum said he didn’t know.
Council unanimously passed the second reading of an ordinance to levy the annual property tax for Spur Cross Ranch, which was reduced this year to $0.6452 per $100 of valuation. Due to restructuring the financing in 2006, Town Accountant Marian Groeneveld said the general obligation bonds will be paid off in 2012, nine years early.
Council also unanimously approved a contract with Cronstrom & Osuch and Company, Certified Public Accountants, to perform auditing services for the town. Although the town is not required to obtain bids for these types of services, Groeneveld obtained four bids, just so the town could see where Cronstrom, which has been performing the town’s audits since 1989, fell.
The bids ranged from $25,000 to $31,400, with Cronstrom coming in second to the lowest at $26,000.
Senior Planner Larry Sahr and Bambi Muller, associate planner and trails coordinator, presented “Technical Design Guideline Number 5 – Trails” for council discussion and possible approval.
Sahr stated the section was being removed from the ordinance and placed in a stand-alone document to make it easier for developers to know up-front what the guidelines are, without needing to plow through the zoning ordinance.
When Councilwoman Grace Meeth asked if it had gone before the planning commission, Sahr responded, “No, it’s not an ordinance. It is a design guideline. It establishes technical standards … not part of the commission’s purview.”
With Councilman Thomas McGuire’s motion on the floor to approve, Meeth said, “I’m sorry, I have some issues with this.”
Meeth commented about the grading and drainage guidelines, which are no longer in the ordinance, and said, “My problem is these should be technical standards and treated as ordinances.”
She then said she had a problem with a section that reads, “With the exception of requirements mandated by town of Cave Creek Codes and Ordinances, all guidelines provided are subject to change or variation at the discretion of the town manager.”
Sahr said because there is such varying topography and geology throughout the town, they needed to have flexibility on a case-by-case basis.
“You can’t address every possible scenario,” said Sahr, citing that provision allowed them to make decisions out in the field as they pertained to a specific situation.
Meeth said she trusted Muller’s judgment implicitly but still had a problem with it saying the guidelines can be changed any time at the discretion of the town manager.
In fact, that was something she repeated countless times, although one attendee said afterward he thought he counted her saying it 12 times.
McGuire’s motion carried by a vote of 6-1 with Meeth dissenting.
Councilman Ernie Bunch recused himself before the last agenda item, a request by Rose Newman to recommend approval for a #12 Restaurant Liquor License for the Cave Creek Coffee Company, as Bunch stated the applicants were friends of his.
Newman said the business currently has a #7 Beer and Wine Liquor License, but this would allow them to accommodate their customers by becoming a martini and wine bar.
She said, “We have sufficient non-alcohol sales,” to meet the 40 percent food sales requirement, stating they were open for breakfast, lunch and dinner, seven days a week.
Council voted unanimously in favor of recommending approval, with Mayor Vincent Francia commenting, “A martini sounds pretty good right now.”
Photo: Gary Birnbaum
Photo by Linda Bentley