Cottonwood Development v. Foothills Area Coalition of Tucson, Inc.

• Court: Arizona Supreme Court
• Writing for the Court: CAMERON; HOLOHAN
• Citation: Cottonwood Development v. Foothills Area Coalition of Tucson, Inc., 653 P.2d 694, 134 Ariz. 46 (Ariz. 1982)
• Decision Date: 03 November 1982
• Docket Number: No. 16170,16170
• Parties: COTTONWOOD DEVELOPMENT, an Arizona partnership; George Mehl; and David Mehl, Plaintiffs/Appellants, v. FOOTHILLS AREA COALITION OF TUCSON, INC., an Arizona corporation; Virginia L. Sonett; Gerald G. Graeme; Eugenia Wells, in her official capacity as Clerk of the Pima County Board of Supervisors; Larry Bahill, in his official capacity as Director of the Pima County Election Department; Richard J. Kennedy, in his official capacity as Pima County Recorder; Sam Lena, in his official capacity as Chairman of the Pima County Board of Supervisors, Defendants/Appellees.

Page 694

653 P.2d 694

134 Ariz. 46

COTTONWOOD DEVELOPMENT, an Arizona partnership; George Mehl; and David Mehl, Plaintiffs/Appellants, v. FOOTHILLS AREA COALITION OF TUCSON, INC., an Arizona corporation; Virginia L. Sonett; Gerald G. Graeme; Eugenia Wells, in her official capacity as Clerk of the Pima County Board of Supervisors; Larry Bahill, in his official capacity as Director of the Pima County Election Department; Richard J. Kennedy, in his official capacity as Pima County Recorder; Sam Lena, in his official capacity as Chairman of the Pima County Board of Supervisors, Defendants/Appellees.

No. 16170.

Supreme Court of Arizona In Banc.

Nov. 3, 1982.

Scheff & Botwin by Michael D. Botwin, and Hirsch & Harrison by W. James Harrison, Tucson, for plaintiffs/appellants.

Louis W. Barassi, Tucson, for defendants/appellees Foothills Area Coalition of Tucson, Virginia L. Sonett, and Gerald G. Graeme.

Stephen D. Neely, Pima County Atty. by Harold Higgins, Chief Civil Deputy County Atty., Tucson, for defendants/appellees Eugenia Wells, Larry Bahill, Richard J. Kennedy, and Sam Lena.

Bilby, Shoenhair, Warnock & Dolph, P.C. by Clague Van Slyke, Tucson, brief amicus curiae for Southern Arizona Homebuilders Ass'n, Inc.

CAMERON, Justice.

In this expedited election appeal, Cottonwood Development, an Arizona partnership, challenges the 10 September 1982 judgment of the Pima County Superior Court denying Cottonwood's petition to remove from the general election ballot in Pima County a referendum sponsored by the appellees, Foothills Area Coalition of Tucson (FACT). We have jurisdiction pursuant to A.R.S. § 19-122(C).

We need answer only one question on appeal and that is whether the referendum petitions circulated by FACT complied with the Arizona constitution.

The facts necessary for the determination of this issue are the following. On 2 April 1982, Cottonwood filed applications with the Pima County Planning and Zoning Department, one to initiate a community plan for a parcel north of Tucson, the other to request revision of the zone boundaries of the official county zoning maps with respect to 300 acres within the parcel. After public hearings, the county board of supervisors, on 20 July 1982, approved appellants' applications by resolution. In doing so, the board acted upon a motion which had been altered by a series of some 19 amendments which added extensive conditions to the proposed resolution. The motion, as amended, was approved by a 3-2 vote of the board of supervisors. The following day, FACT, after filing an application for a referendum with the appropriate county officials, commenced circulating petitions to refer the 20 July 1982 resolution adopted by the supervisors to the county electorate at the 2 November election. The text of the petition preceding the signatures read as follows:

"We the undersigned citizens and qualified electors of the state of Arizona and Pima County, respectfully order that the action taken by the Pima County Board of Supervisors at their regular meeting of July 20, 1982 relating to the Pima County Planning Department Case No. CO-13-59-4 entitled 'Catalina Foothills Zoning Plan' to amend the Catalina Area Foothills Plan to allow the property zoned CR-4, CR-5, CB-1, rather than CR-1; Case No. CO-9-82-30 entitled 'Cottonwood Development-Sunrise Drive Rezoning', allowing the rezoning of approximately 291 acres from CR-1 to CR-4, CR-5, TR, CB-1 in Cottonwood Development; and Case No. CO-13-82-1 entitled 'Hills Community Plan' allowing an amendment to the Master Plan and the ordinance in Case Nos. CO-13-59-4, CO-9-82-30 and CO-13-82-1 shall be referred to a vote of qualified electors of Pima County and all subsequent Board of Supervisors actions leading to and including ultimate adoption of the actual ordinance which rezones the Cottonwood Development and/or Murphy Investment Trusts property shall be referred to a vote of the qualified electors of Pima County for their approval or rejection at the next regular general election, and each for himself or herself says: I have personally signed this petition with my first and last names. I have not signed any other petition for the same measure. I am a qualified elector of the State of Arizona, county of Pima."

On 19 August 1982, FACT filed its signed petition for referendum with the clerk of the board of supervisors and the Division of Elections. On 26 August 1982, Cottonwood filed a complaint and applied for an order to show cause in the Pima County Superior Court, seeking to declare the form of the referendum petition legally insufficient, invalid and void, and to enjoin the election officials from certifying the petition for the November general election. After a hearing, the court denied Cottonwood's requested relief. This expedited appeal followed. After hearings held on 20 September 1982, we ordered that the matter not be placed on the general election ballot, with an opinion to follow.

Our constitution provides that the people have reserved the power of initiative and referendum, Ariz. Const. art. 4, pt. 1, § 1, subds. 1-3, and this power is specifically reserved to citizens of local governments. Ariz. Const. art. 4, pt. 1, § 1, subd. 8. The constitution provides that 15% of the electors may propose legislation, and 10% may require that existing legislation be referred to the people. Id. The Arizona legislature has provided, by statute, for implementation of the constitutional provision. A.R.S. § 19-101, et seq. A.R.S. § 19-144 explicitly authorizes referendum petitions against a resolution passed by a county board of supervisors. This power which is reserved to the people is not without opportunity for abuse. A small minority of the voters has the power to suspend legislation enacted by the duly elected representatives of the people, legislation that could be supported by a majority of the electors at the subsequent referendum election. Queen Creek Land & Cattle Corp. v. Yavapai County Bd. of Supervisors, 108 Ariz. 449, 501 P.2d 391 (1972). As we have stated:

"The right to suspend, and possibly to revoke, as given by the referendum ... is an extraordinary power which ought not unreasonably to be restricted or enlarged by construction. It must be confined within the reasonable limits fixed by the charter [statute]. The charter [statute] prescribes what the petition for referendum shall contain, how it shall be signed, and by whom it shall be verified. These provisions are intended to guard the integrity both of the proceeding and of the petition. Where a power so great as the suspension of an ordinance or of a law is vested in a minority, the safeguards provided by law against its irregular or fraudulent exercise should be carefully maintained." Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5-6, 503 P.2d 951, 953-54 (1972), quoting AAD Temple Bldg. Ass'n v. Duluth, 135 Minn. 221, 226-27, 160 N.W. 682, 684-85 (1916).

Because this is a great power, the power of the minority to hold up the effective date of legislation which may well represent the wishes of the majority, the constitution and the statute made pursuant thereto must be strictly followed. Direct Sellers Ass'n v. McBrayer, supra.

In the instant case, we are concerned with the requirements of the constitution and statute that the referendum petitions contain a copy of the measure to be referred. Our constitution states:

"Each sheet containing petitioners' signatures shall be attached to a full and correct copy of the title and text of the measure so proposed to be initiated or referred to the people * * *." Ariz. Const. art. 4, pt. 1, § 1, subd. 9.

The statute requires the same:

"A. Every sheet for signatures shall:

* * *

* * *

"3. Be attached to a full and correct copy of the title and text of the measure * * * referred by the petition * * *." A.R.S. § 19-121(A)(3).

At a minimum, that portion of the minutes of the board of supervisors that contained the resolution and the amendments...