Phoenix appeals referendum decision

By Linda Bentley | August 20, 2008

Citizens object to high-density multi-family rezoning
PHOENIX – On January 9, 2008, Phoenix City Council adopted a resolution to amend its general plan and an ordinance to change the zoning classification on a 27.45-acre parcel near 27th Avenue and Baseline Road from Ranch/Farm to Multi-Family Residential.

The push for the general plan amendment and rezoning was at the behest of former Mayor Paul Johnson, who proposed, under his Berkana brand, a high-density multi-family residential and single-family home development, which area residents say is incompatible with the rural nature of the area.

laveenTwo days later, Randy Jones, an auditor, who lives in the area had a political action committee registered under the name “Coalition to Preserve Laveen Village” and spearheaded two referendum drives to place the general plan amendment and rezoning on the ballot for voters to decide.

City Clerk Mario Paniagua informed Jones he would need to collect 9,798 valid signatures within a 30 day timeframe for the measures to appear on the ballot.

Paniagua based the number on Chapter XVI, Sec. 3(A) of the Phoenix City Charter, a provision that determines the number of signatures required to be “equal in number to ten per centum of the total votes cast at the last preceding general city election at which a mayor was elected.”

On Sept. 11, 2007, a total of 97,973 votes were cast in the mayoral election and therefore 10 percent would equal 9,798 signatures.

However, Jones later learned the Phoenix City Charter did not comport with A.R.S. § 19-42(A), which states, “The whole number of votes cast at the city or town election at which a mayor or councilmen were chosen last preceding the submission of the application for a referendum petition against an ordinance, franchise or resolution shall be the basis on which the number of electors of the city or town required to file a referendum petition shall be computed.”

Since council members were subsequently elected in a Nov. 6 election, where a total of 27,966 votes were cast, Jones determined he should only be required to submit 2,797 valid signatures to force a referendum.

Jones brought the matter to the attention of Paniagua, City Attorney Gary Verburg and others at city hall.

He also brought up two pertinent court decisions.

On March 14, 2007, in Fleishman v. Protect Our City, the Arizona Supreme Court determined the city’s procedure for collecting signatures, although more lenient, was contrary to state statute and ruled the city’s provision void.

And, in a 1994 case involving Homebuilders Association of Central Arizona v. City of Scottsdale, Maricopa County Superior Court Judge Craig Blakey ruled the signature requirement for a referendum was properly based on the March 1994 general election at which only one councilman was elected, since it was the last election preceding the filing of a referendum petition in which a mayor or councilman was elected.

Jones also pointed out the court was unsympathetic to the city of Scottsdale’s argument against such a low signature requirement because the “election procedure which the city adopted had facilitated such a result.”

Meanwhile, Jones had collected approximately 8,000 signatures.

However, Deputy City Attorney Larry Felix responded to Jones via e-mail on Feb. 6, 2008 to say, “It is our opinion, that in determining signature require-ments for a city of Phoenix referendum, city election means an election in which all the qualified electors in the city are entitled to vote for a citywide office, not merely the vote in a portion of the city’s election districts. Therefore, the signature requirement for a city of Phoenix referendum is 9,798, based on the votes cast in the city election on Sept. 11, 2007.”

On Feb. 19, 2008, Jones filed a special action in Maricopa County Superior Court to have the court order the city clerk to calculate the minimum number of signatures required as 2,727, based on the Nov. 6 council runoff election.

Maricopa County Superior Court Judge Richard Trujillo agreed with Jones and subsequently awarded him $23,054.91 in attorney’s fees and costs.

The city is appealing Trujillo’s decision and oral arguments are expected to be scheduled sometime in early September.

The city argues Arizona’s Constitution intended for the signature requirement to be based on a citywide election in which all voters may cast votes, not on district council elections whereas only certain electors may vote.

However, Jones asserts that is not what state statute says and claims the city is basing its argument on a law that simply doesn’t exist.

Photo caption: The Coalition to Preserve Laveen Village is fighting a high-desinity rezoning of this rural area.
Courtesy photo