City of Tucson v. Woods
| Decision Date | 12 November 1997 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 959 P.2d 394,191 Ariz. 523 |
| Parties | , 256 Ariz. Adv. Rep. 3 CITY OF TUCSON, a municipal corporation, Plaintiff-Appellant, Cross Appellee, v. Grant WOODS, the Attorney General, substituted for the State of Arizona; Pima County, a political subdivision of the State of Arizona; Mike Boyd, Sharon Bronson, Raymond Carroll, Dan Eckstrom and Raul Grijalva, in their official capacity as members of the Pima County Board of Supervisors; Committee to Incorporate, Inc., an Arizona non-profit corporation; and the Committee to Incorporate the Town of Tortolita, Defendants-Appellees, Cross Appellants. 97-0503. |
| Court | Arizona Court of Appeals |
This is an appeal from an order of the Superior Court upholding a statute which allows certain communities in Pima County near the City of Tucson to incorporate as towns without the City's consent. We reverse because we find that the statute is a special or local law that violates Article 4, Part 2, Section 19 of the Arizona Constitution. 1
Under Arizona Revised Statutes Annotated (A.R.S.) section 9-101 communities of 1,500 or more persons may be incorporated as cities or towns in either of two ways. When two-thirds of the qualified electors residing in the community petition the county board of supervisors, the board can declare the community incorporated without holding an election. When ten percent of the qualified electors petition the board, the board must call an election regarding the proposed incorporation. If a majority of the qualified electors votes in favor of incorporation, the board declares the community incorporated.
In 1961, the legislature attempted to prevent the fragmentation of local governmental structure by enacting another statewide statute, A.R.S. section 9-101.01, which allows a city or town in the area of another community seeking to incorporate to either annex the community or grant it permission to incorporate separately. The statute reads as follows.
§ 9-101.01. Incorporation, urbanized area
A. Notwithstanding any other provision of law to the contrary, all territory within six miles of an incorporated city or town, as the same now exists or may hereafter be established, having a population of five thousand or more as shown by the most recent federal census, and all territory within three miles of any incorporated city or town, as the same now exists or may hereafter be established, having a population of less than five thousand as shown by the most recent federal census is declared to be an urbanized area.
B. No territory within an urbanized area shall hereafter be incorporated as a city or town, and the board of supervisors shall have no jurisdiction to take any action upon a petition to incorporate a city or town within such area, unless:
1. There is submitted with the petition for incorporation a resolution adopted by the city or town causing the urbanized area to exist approving the proposed incorporation; or
2. There is filed with the board of supervisors an affidavit stating that a proper and legal petition has been presented to the city or town causing the urbanized area to exist requesting annexation of the area proposed for incorporation and such petition has not been approved by a valid ordinance of annexation within one hundred twenty days of its presentation.
During the 1996 regular legislative session, two identical bills, HB 2218 and SB 1255 were introduced which provided for a statewide repeal of A.R.S. section 9-101.01 defining territory within six miles of cities or towns with populations of 5,000 or more as an urbanized area. Neither bill was enacted.
During the 1997 regular legislative session, HB 2496 was introduced to eliminate the six-mile urbanized area statewide. The City of Phoenix and the League of Arizona Cities and Towns opposed the bill, and it was never enacted.
During the same legislative session, SB 1324, dealing with technical changes to the annexation statutes was, on motion of Representative William McGibbon, amended on the floor of the House to allow the suspension of A.R.S. section 9-101.01(A) for a limited period of time in Pima County only. This bill, which became Laws 1997, Chapter 204, § 2 reads as follows:
Notwithstanding the provisions of section 9-101.01, subsection A, Arizona Revised Statutes, all territory within six miles of an incorporated city or town having a population of five thousand or more persons as shown by the most recent federal census that is within a county having a population of more than five hundred thousand but less than one million persons as shown by the most recent federal census is not an urbanized area for purposes of section 9-101.01, Arizona Revised Statutes, for the period between the effective date of this act and July 15, 1999.
It is conceded that the only place this provision can ever apply, given its short life, is within Pima County. It is the constitutionality of this provision, which we will frequently refer to hereafter as the "suspension statute," that is in question.
We will address arguments raised in the cross appeal first, since they deal with threshold matters. The State argues that the City of Tucson does not have standing to maintain this action. Citing Town of Wickenburg v. State, 115 Ariz. 465, 565 P.2d 1326 (App.1977), the State says that a municipality may not assert the constitutional rights of others. Tucson, it argues, has no direct stake in its neighbors' incorporation. 2
Courts invoke the doctrine of standing to ensure that their decisions are not mere advisory opinions, to ensure that the case is not moot and to ensure that issues will be developed by true adversaries. Armory Park Neighborhood Ass'n v. Episcopal Community Services, 148 Ariz. 1, 6 n. 4, 712 P.2d 914, 919 n. 4 (1985). All of these considerations are satisfied here. Tucson has a direct stake in seeing that the policy against piecemeal incorporation embodied in A.R.S. section 9-101.01 is not suspended. The very purpose of section 9-101.01 is to protect cites and towns from problems that may flow from the existence of many separate governmental entities in a limited geographical area. For example, in this case, if urban communities like Tortolita are allowed to incorporate, they, and their tax base, are forever lost to Tucson, even though Tucson may need that tax base. So, too, Tucson may be able to serve the needs of the area more efficiently than can a smaller town, and the inability to serve the needs of a wider area may impact adversely on the efficiency with which Tucson can serve the needs of all its citizens. See City of Scottsdale v. McDowell Mountain Irr. and Drainage Dist., 107 Ariz. 117, 483 P.2d 532 (1971) ().
We also reject the argument that Tucson can only sue the State to vindicate rights bestowed on Tucson by the constitution and that A.R.S. section 9-101.01 is not a constitutional right. Article 4, Part 2, section 19(17) provides that no local or special laws may be enacted with respect to the incorporation of cities, towns or villages. Under that provision, Tucson has a constitutional right to be free of any local or special law relating to incorporation that affects it adversely.
In an argument related to its assertion that Tucson has no standing to maintain this action, the State, citing Town of Wickenburg, argues that it should not be a party to the suit because a municipality may not sue its creator to assert mere statutory rights bestowed upon it by that creator. We do not accept this argument because, as our discussion of the City's standing reveals, we believe the City is suing to vindicate a right guaranteed by the constitution.
This question has another facet. Because Tucson can obtain complete relief even if the State is not joined, no absolute necessity exists to include the State as a defendant. Tucson named the State because A.R.S. section 12-1841(A) provides:
A. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard. In any proceeding in which a statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard.
In Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209 (1948), the supreme court, construing the predecessor to this statute, held that "[s]ince the...
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