Carefree Imp. Ass'n v. City of Scottsdale, 1

• Decision Date: 19 January 1982
• Docket Number: CA-CIV,No. 1,1
• Citation: 649 P.2d 985,133 Ariz. 106
• Parties: CAREFREE IMPROVEMENT ASSOCIATION, an Arizona corporation; Clifford N. Parsells; Edward Rowley; Rawhide Capital Co., an Arizona limited partnership; the Boulders Carefree Corp., an Arizona corporation; Scottsdale-Carefree Properties, an Arizona general partnership; Daniel J. Donahoe, III, trustee of the Helen Clark Donahoe Irrevocable Trusts; Desert Ranch, Inc., an Arizona corporation; Lyle Anderson Corp., an Arizona corporation, Plaintiffs-Appellees Cross-Appellants, v. CITY OF SCOTTSDALE, a municipal corporation; Herbert Drinkwater; James Bruner; Diane Cusack; Billie Gentry; Dr. Heinz Hink; Jeff Schubert and Charlie Smith, in their capacity as elected Mayor and members of the Council of the City of Scottsdale, and not individually, Defendants-Appellants Cross-Appellees. 5902.
• Court: Arizona Court of Appeals

Page 985

649 P.2d 985

133 Ariz. 106

CAREFREE IMPROVEMENT ASSOCIATION, an Arizona corporation; Clifford N. Parsells; Edward Rowley; Rawhide Capital Co., an Arizona limited partnership; the Boulders Carefree Corp., an Arizona corporation; Scottsdale-Carefree Properties, an Arizona general partnership; Daniel J. Donahoe, III, trustee of the Helen Clark Donahoe Irrevocable Trusts; Desert Ranch, Inc., an Arizona corporation; Lyle Anderson Corp., an Arizona corporation, Plaintiffs-Appellees Cross-Appellants, v. CITY OF SCOTTSDALE, a municipal corporation; Herbert Drinkwater; James Bruner; Diane Cusack; Billie Gentry; Dr. Heinz Hink; Jeff Schubert and Charlie Smith, in their capacity as elected Mayor and members of the Council of the City of Scottsdale, and not individually, Defendants-Appellants Cross-Appellees.

No. 1 CA-CIV 5902.

Court of Appeals of Arizona, Division 1.

Jan. 19, 1982.

Rehearing Denied March 4, 1982.

Review Denied July 16, 1982.

Campana & Horne, P. C. by Thomas C. Horne, Martha B. Kaplan, Phoenix, for defendants-appellants cross-appellees City of Scottsdale, Mayor and members of City Council.

Streich, Lang, Weeks & Cardon, P. A. by William S. Hawgood, II, Michael P. West, Phoenix, for plaintiff-appellee cross-appellant Rawhide Capital Co.

Jennings, Strouss & Salmon by Jay C. Stuckey, Jr., Neil Vincent Wake, Phoenix, for plaintiffs-appellees cross-appellants Boulders Carefree Corp., Scottsdale-Carefree Properties, Donahoe, Desert Ranch, Inc., and Lyle Anderson Corp.

Thur & Preston by Richard R. Zielinski, Scottsdale, for plaintiffs-appellees cross-appellants Carefree Imp. Ass'n, Parsells and Rowley.

OPINION

CORCORAN, Judge.

The appellees commenced this litigation to invalidate an annexation ordinance passed by the appellant City of Scottsdale (Scottsdale). Appellees moved for summary judgment on the ground that Scottsdale had failed to comply with the notice provisions of Arizona's open meeting law, A.R.S. §§ 38-431.01 to .09. The trial court granted summary judgment. We affirm its decision.

Although the action taken by the city council of Scottsdale involves annexation, this is not a "strip annexation" case. This is an open meeting law case. The open meeting law was first adopted in 1962. Laws 1962, Ch. 138. In 1978, the legislature adopted a declaration of public policy for the guidance of those charged with the interpretation of the open meeting law by adding A.R.S. § 38-431.09:

Declaration of Public Policy.

It is the public policy of this state, reflected in this article (3.1), that meetings of public bodies be conducted openly. Toward this end, any person or entity charged with the interpretations of this article shall take into account the policy of this article and shall construe any provision of this article in favor of open and public meetings.

Laws 1978, Ch. 86, § 7. In construing the open meeting law and the declaration of policy, the language must "be liberally construed to effect their objects and to promote justice." A.R.S. § 1-211(B). This construction must be followed "unless such construction would be inconsistent with the manifest intent of the legislature." A.R.S. § 1-211(A).

The proceedings which led to this litigation were occasioned by the demise of the legislatively sanctioned practice of "strip annexation." Prior to July 1, 1980, Arizona law permitted this species of municipal enlargement, by which an incorporated municipality could annex a strip as little as ten feet wide encircling a broad expanse of unannexed land contiguous to the municipality. This action had the effect of depriving the owners of land within the encircled strip of the right to be annexed by any other municipality. See A.R.S. § 9-471(A)(1). It could also in effect confer a veto power over the incorporation of any other municipality within a six mile radius. See A.R.S. § 9-101.01.

In the spring of 1980, the legislature amended A.R.S. § 9-471 to eliminate the practice of strip annexation. This legislation, Laws 1980, Ch. 226, § 1, took effect on July 1, 1980.

In late June, 1980, certain Scottsdale city officials and members of the city council became convinced of the desirability of annexing a 10 to 25 foot strip of land encircling some 86 square miles north and west of the existing city limits. ¹ They were professedly motivated in some part by the thought or fear that the City of Phoenix (Phoenix), which was likewise adjacent to the area in question, might conceivably attempt a similar "strip annexation" of the same land. Scottsdale considered strip annexation important because Scottsdale had more rigorous zoning and development standards than Phoenix and the area lay within the projected growth pattern of Scottsdale. If Scottsdale was successful in the strip annexation, it could exercise a strong degree of control over zoning and development in the 86 mile area. It is not disputed that the annexation would also have taken Scottsdale to within six miles of the unincorporated communities of Carefree and Cave Creek, thus requiring citizens in those areas to first offer to be annexed to Scottsdale as a condition precedent to incorporation as a municipality. A.R.S. § 9-101.01.

On Friday morning, June 27, at 8:00 a. m., the Scottsdale city council convened in a duly noticed session to consider annexation petitions to effectuate the strip annexation described above. One of the annexation petitions, rejected by the council because it contained conditions, was submitted by the appellee Rawhide Capital Company (Rawhide Capital). Questions were raised as to whether the annexation petitions acceptable to the council were sufficient in terms of the value of land represented, and one council member moved to postpone consideration of the proposed Ordinance 1304 until the next regular meeting of the council on Monday, June 30, at 5:00 p. m. This motion carried, and it thus became a matter of orally announced public record that the next consideration of the proposed strip annexation ordinance would be on Monday at 5:00 p. m. The proposed annexation had been the subject of some public attention, and members of the press were present at the meeting to observe the council's actions. ²

Among the persons present at the Friday morning meeting of the council was James Paul, general partner of the appellee Rawhide Capital. Rawhide Capital owns Rawhide, a large tourist attraction within the area encircled by the proposed annexation.

After the meeting on Friday morning some city officials became convinced that it was strategically necessary for the city council to consider the proposed annexation ordinance on Monday morning, if possible. They were concerned that news media reports of the unsuccessful Friday morning meeting would prompt an attempt by Phoenix to annex the area before the regular council meeting late Monday afternoon. If Phoenix were successful in such an attempt, Scottsdale would be ousted from jurisdiction in the matter. The record indicates that Scottsdale city officials were making tentative plans before the close of business on Friday, June 27, to hold a council meeting the following Monday morning. Inasmuch as the mayor was not willing to call an early morning meeting to preempt annexation jurisdiction, the affirmative votes of four council members were necessary for the special meeting. By Saturday, June 28, city officials had received the express affirmative votes of three members, James Bruner, Jeff Schubert and Charlie Smith, and were confident enough of receiving the affirmative vote of a fourth council member, Diane Cusack, that they proceeded to give official notice of a special meeting to take place in city hall at 7:00 a. m. on Monday morning. Mayor Herbert Drinkwater and council members Billie Gentry and Dr. Heinz Hink opposed the calling of this special meeting.

The Arizona open meeting law requires that public notice be given of meetings of public bodies where public issues will be decided. The relevant notice provisions read as follows:

Notice of meetings.

A. Public notice of all meetings of public bodies shall be given as follows:

3. The public bodies of the cities and towns shall file a statement with the city clerk or mayor's office stating where all public notices of their meetings will be posted and shall give such additional public notice as is reasonable and practicable as to all meetings.

....

C. Except as provided in subsections D and E, meetings shall not be held without at least twenty-four hours' notice to the members of the public body and to the general public.

D. In case of an actual emergency, a meeting may be held upon such notice as is appropriate to the circumstances.

E. A meeting may be recessed and resumed with less than twenty-four hours' notice if public notice of the initial session of the meeting is given as required in subsection A, and if, prior to recessing, notice is publicly given as to the time and place of the resumption of the meeting or the method by which notice shall be publicly given.

A.R.S. § 38-431.02. Pursuant to subsection (A)(3) of the statute, the Scottsdale city council had by Resolution 1290 ³ designated the city hall, police department headquarters and Eldorado Park as the places for posting "public notices." No claim has been made that these locations were not suitable for posting public notices. Cf. Valley National Bank v. Brooks, 3 Ariz.App. 340, 414 P.2d 189 (1966) (which deals with "public places").

After Scottsdale city officials determined on Saturday to hold the meeting regarding proposed Ordinance 1304 on Monday morning at 7:00 a. m., they proceeded to post notices ⁴ of the newly scheduled meeting and copies of the proposed ordinance and map in city hall, in the police department headquarters, and in a building at Eldorado Park. They also posted notices in the Scottsdale Center for the Arts, inside a building at Indian School Park, and in the municipal library. All notices were posted by 7:00 p. m. on...