Cota-Robles v. Mayor and Council of City of Tucson, COTA-ROBLE
| Decision Date | 26 September 1989 |
| Docket Number | No. 2,P,COTA-ROBLE,CA-CV,2 |
| Parties | Marioatrick McDonald, Michael Haggerty, and George Gault, Plaintiffs/Appellants, v. MAYOR AND COUNCIL OF the CITY OF TUCSON and The City of Tucson, a municipal corporation, Defendants/Appellees, State of Arizona, ex rel. Charles L. Miller, Director, Department of Transportation; Donald H. Laidlaw; Donald G. Shropshire; Donald F. Fornear; Bruce E. Dusenberry; Humberto S. Lopez; W.D. Breck, Sr.; G. Richard Ketchum; and William M. Clements, Intervenors/Appellees. 89-0059. |
| Court | Arizona Court of Appeals |
Appellants Mario Cota-Robles, Patrick McDonald, Michael Haggerty and George Gault, voters and concerned citizens in Tucson, appeal from the summary judgments entered against them in their suit seeking to compel the Mayor and Council of the City of Tucson to call a referendum election on the alignment of the proposed Aviation Parkway. We affirm.
In February 1981, the Pima Association of Governments, a non-profit corporation comprised of the governments of Pima County, the City of Tucson, the City of South Tucson, the Town of Marana and the Town of Oro Valley, adopted a regional transportation plan that included the Aviation Parkway, a controlled-access highway designed to run from Alvernon Way near Golf Links Road through downtown to Granada Avenue near Interstate Highway 10. The proposed parkway route falls both within and without the Tucson city limits, primarily within. In May 1981 the proposed route was designated as State Route 210 by the Arizona Transportation Board.
Engineering consultants were hired and numerous public hearings were held. A concept location study was produced that resulted in four potential corridor alignments. In December 1982 the Tucson City Council selected one of the four alternatives. That alternate was adopted by the transportation board on February 18, 1983, which made the parkway eligible for highway user revenue funds pursuant to A.R.S. § 28-1598(K).
The City of Tucson and the Arizona Department of Transportation (ADOT) entered into an intergovernmental agreement in April 1983 pursuant to which the state agreed to reimburse the city for the cost of the engineering consultants and city personnel time expended in the second phase of the project, the concept design phase. In November 1983, the transportation board approved the advance acquisition by ADOT of right-of-way for the parkway. In June 1985, the Tucson City Council approved the concept design report for the parkway that included 53 measures designed to mitigate the impact of the roadway upon the areas through which it will pass.
In December 1985, ADOT entered into a consulting contract with Parsons Brinckerhoff Quade & Douglas, Inc. to complete the final design and implementation phase of the parkway. In September and October 1987, ADOT entered into four contracts for engineering services and real property appraisal, acquisition and relocation services in connection with the parkway. In November 1987, the City of Tucson and ADOT entered into an intergovernmental agreement pursuant to which ADOT agreed to construct a bicycle path along the parkway corridor in exchange for conveyance of title to city-owned property required for the parkway right-of-way. On April 11, 1988, the City Council reaffirmed its June 1985 vote on alignment of the parkway.
On July 15, 1988, the transportation board established a portion of the Aviation Parkway as a state highway because that portion was then ready for construction. As of September 12, 1988, the date the affidavit of the director of ADOT was signed, ADOT had expended $56.3 million for Aviation Parkway engineering and design services and right-of-way acquisition. Eight contracts between ADOT and engineering, architectural and utility design firms totalling at least $24 million were then being performed.
Appellants filed their complaint against the Mayor and Council and the City of Tucson on July 13, 1988. They seek an order requiring the City Council to hold a referendum election on the proposed alignment of the Aviation Parkway. Appellants contend the referendum is required by the Neighborhood Protection Amendment, an amendment to the Tucson City Charter adopted by the voters as an initiative that became effective February 21, 1986. Tucson Charter, Ch. XXV, § 13. The amendment reads as follows:
(a) The purpose of this section is to allow maximum citizen participation with respect to controlled-access highway design, placement and construction in order (b) The City of Tucson shall not participate, as described herein, in the construction of any freeway, parkway or other controlled-access highway as defined by Arizona Revised Statutes section 28-602, or grade-separated interchange before the qualified electors of Tucson first vote to approve the location and preliminary design of such proposed project. Any freeway, parkway or other controlled-access highway or grade-separated interchange will be referred to as 'project' throughout this section.
[163 Ariz. 145] to protect existing neighborhoods as desired by the electorate.
(c) For purposes of this section, participation by the City of Tucson in any project shall include approval or authorization of expenditure of funds for condemnation, right-of-way acquisition or construction of any project, or approval or concurrence in any approval of such project, or cooperation with any other governmental authority thereon, except as provided in paragraph (g) of this section.
(d) Voter approval for participation by the City of Tucson in any project shall be obtained by the mayor and council at any regular election or special election called for that purpose. The design and proposed route of the project shall be described in such detail on the ballot that a reasonable person could understand the specific location, estimated cost and design of the proposed project, including whether the proposed project could reasonably be described as either a freeway, parkway or other controlled-access highway or a grade-separated interchange. The voters shall be asked on the ballot to 'approve' or 'reject' the proposed project.
(e) If the voters reject the proposed project, the mayor and council shall request that the state department of transportation not include the proposed project in the state highway system.
(f) Approvals of any project granted pursuant to this section shall be effective for five (5) years and, if no actual construction has commenced within that period, shall lapse, subject to new voter approval pursuant to this section.
(g) This section shall not apply to improvements to the existing federal Interstate system, nor to cooperation with other governmental authorities in purely planning and research activities, nor to obtaining sufficient information required to comply with paragraph (d) of this section. This section shall not apply to projects for which construction contracts have been let as of the effective date of this...
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