Sklar v. Town of Fountain Hills

• Court: Arizona Court of Appeals
• Writing for the Court: Winthrop
• Citation: Sklar v. Town of Fountain Hills, 207 P.3d 702, 220 Ariz. 449 (Ariz. App. 2008)
• Decision Date: 25 November 2008
• Docket Number: No. 1 CA-CV 08-0519 EL.,1 CA-CV 08-0519 EL.
• Parties: Sherry M. SKLAR, a qualified elector of the Town of Fountain Hills, Plaintiff/Appellee, v. TOWN OF FOUNTAIN HILLS; Beverly J. Bender; Jay Schlum; Dennis Contino; Cassie Hansen; Keith McMahan; Henry Leger; Mike Archambault; Ginny Dickey, Defendants/Appellees. Save Our Small Town in Support of 2008-RF-001-01 and Save Our Small Town in Support of 2008-RF-002-02, Intervenors/Appellants.

207 P.3d 702

220 Ariz. 449

Sherry M. SKLAR, a qualified elector of the Town of Fountain Hills, Plaintiff/Appellee, v. TOWN OF FOUNTAIN HILLS; Beverly J. Bender; Jay Schlum; Dennis Contino; Cassie Hansen; Keith McMahan; Henry Leger; Mike Archambault; Ginny Dickey, Defendants/Appellees Save Our Small Town in Support of 2008-RF-001-01 and Save Our Small Town in Support of 2008-RF-002-02, Intervenors/Appellants.

No. 1 CA-CV 08-0519 EL.

Court of Appeals of Arizona, Division 1, Department C.

November 25, 2008.

Review Denied December 4, 2008 and April 20, 2009.

Gammage & Burnham PLC By Lisa T. Hauser, Gregory J. Gnepper, Heather J. Boysel, Phoenix, Attorneys for Intervenors/Appellants.

Shugart Thomson & Kilroy, PC By Thomas K. Irvine, Kelly J. Flood, Natalia A. Garrett, Phoenix, Attorneys for Plaintiff/Appellee.

WINTHROP, Presiding Judge.

¶ 1 In its referendum petitions seeking to invalidate a town's rezoning and development ordinances, did the voter-based sponsoring group fail to comply with the statutory mandate that the petitions identify the principal provisions of the challenged governmental acts? The superior court found the subject referendum petitions lacking in this regard and, in turn, misleading to potential petition signers. In this expedited appeal, we examine de novo the contested language in the petitions and find an inherent failure to comply with the statutory mandate. As more fully discussed below, we affirm the order of the superior court enjoining placement of the subject referendum petitions on any general or special election ballot.

BACKGROUND

¶ 2 In 2005 and 2006, the Town of Fountain Hills annexed and approved zoning for a 1276-acre parcel of land formerly known as the "State Trust Land." The zoning at that time permitted 1750 residential units on such parcels. On March 15, 2007, the Fountain Hills Investment Company, L.L.C., ("Developer") purchased the property at a public auction. Subsequently, Developer filed an application with the Town of Fountain Hills to amend the Town's General Plan¹ and to rezone the 1276-acre parcel.² On May 15, 2008, at a public hearing, the Town Council of Fountain Hills approved both measures.³

¶ 3 On May 19, 2008, "Save Our Small Town" ("SOST"), a ballot measure committee, filed its Statement of Organization and applied for referendum serial numbers to refer Resolution No.2008-25 and Ordinance No. 08-12 to a ballot. SOST gathered signatures on its petitions and, on June 20, 2008, the Town Clerk certified that each referendum petition contained enough signatures to put these measures on hold pending a vote of the electors of the Town of Fountain Hills.

¶ 4 In June, Sherry Sklar ("Sklar"), a qualified elector in the Town, filed a complaint in the superior court against the Town of Fountain Hills. Sklar sought to invalidate both referenda and to enjoin the Town from placing either measure on the ballot. Sklar also requested that the court order the Town to appear and show cause why the Town should not be enjoined from placing the referendum on the ballot. SOST intervened as a defendant.

¶ 5 Sklar and SOST filed motions for summary judgment. Sklar argued that the court must strictly construe the requirements of Arizona Revised Statutes ("A.R.S.") section 19-101(A), citing Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 814 P.2d 767 (1991), and that SOST's petitions were invalid because they were inaccurate, misleading, and did not contain descriptions of the principal provisions of the matters to be referred. Conversely, SOST argued that the court must broadly construe § 19-101(A), citing Sherrill v. City of Peoria, 189 Ariz. 537, 943 P.2d 1215 (1997), and that the descriptions on the referendum petitions were neither defective nor misleading. The superior court agreed with Sklar and enjoined the Town from placing the referendum on the ballot. Specifically, the superior court ruled that it must strictly construe § 19-101(A) and that the 100-word referendum descriptions provided by SOST in its signature petitions did not set forth the principal provisions of the General Plan Amendment and the corresponding ordinance as required by the statute. See Western Devcor, Inc., 168 Ariz. at 428-29, 814 P.2d at 769-70. The court therefore granted summary judgment in favor of Sklar. This timely expedited appeal followed.⁴ We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003) and 19-122(C) (2002). See also Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380, 382, 825 P.2d 1, 3 (1992) (instructing parties to file referendum appeals in the court of appeals).

ANALYSIS

Standard of Review

¶ 6 SOST argues that the referendum petitions are valid because the petitions comply with the requirements of § 19-101(A). Because our review is limited to matters of statutory construction decided by the superior court, it is a question of law that we review de novo. Open Primary Elections Now v. Bayless, 193 Ariz. 43, 46, ¶ 9, 969 P.2d 649, 652 (1998).

¶ 7 In reviewing an order granting summary judgment, we must determine whether there is a genuine issue of disputed material fact and, if not, whether the superior court correctly applied the substantive law. See In re Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App.1991). "In interpreting statutes, we look to the plain language as the most reliable indicator of meaning." Powers v. Carpenter, 203 Ariz. 116, 118, ¶ 9, 51 P.3d 338, 340 (2002); Calik v. Kongable, 195 Ariz. 496, 498, ¶ 10, 990 P.2d 1055, 1057 (1999). We will give effect to each sentence and word so that provisions are not rendered meaningless. Bilke v. State, 206 Ariz. 462, 464, ¶ 11 80 P.3d 269, 271 (2003); State v. Superior Court (Kerr-McGee Corp.), 113 Ariz. 248, 249, 550 P.2d 626, 627 (1976). "With these principles in mind, we consider the text of 19-101(A) and the parties' arguments." Comm. for Pres. of Established Neighborhoods v. Riffel, 213 Ariz. 247, 250, ¶ 8, 141 P.3d 422, 425 (App.2006).

General Principles Concerning Referendum

¶ 8 As a preliminary matter, we briefly restate some general principles concerning analysis of challenges to referendum petitions. First, we are well aware of and respect the citizens' constitutional right to challenge a government's legislative actions by referring a duly enacted measure to the ballot for a vote. Ariz. Const. art. 4, pt. 1, § 1; Lawrence v. Jones, 199 Ariz. 446, 449, ¶ 7, 18 P.3d 1245, 1248 (App.2001) (stating that "[o]ur courts have also consistently recognized `Arizona's strong public policy favoring the initiative and referendum.'") (citing Western Devcor, Inc., 168 Ariz. at 428, 814 P.2d at 769). That right is subject to reasonable statutory regulation, see Cottonwood Development v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 48, 653 P.2d 694, 696 (1982); accordingly, our legislature has, over the years, created and amended statutes governing the proper exercise of the right of referendum. See generally, A.R.S. § 19-101 et seq.

¶ 9 Our supreme court has consistently held that a referendum petition must "comply strictly with applicable constitutional and statutory provisions." Sherrill, 189 Ariz. at 540, 943 P.2d at 1218 (quoting Western Devcor, Inc., 168 Ariz. at 429, 814 P.2d at 770 (citing Cottonwood Dev., 134 Ariz. at 49, 653 P.2d at 697)). The reason for insisting on such strict, or "nearly perfect" compliance is that "referendum power allows [the] `minority to hold up the effective date of legislation which may well represent the wishes of the majority.'" Riffel, 213 Ariz. at 249, ¶ 6, 141 P.3d at 424 (quoting Western Devcor, Inc., supra, 168 Ariz. at 428-29, 814 P.2d at 769-70). Likewise, the court in Sherrill cautioned that courts must "resist the temptation to `improve upon' or try to `fix' otherwise clear statutory language in an effort to make it more useful or meaningful. Rather the responsibility to alter statutes that can be read only one way, as here, remains with the legislature." Sherrill, 189 Ariz. at 541, 943 P.2d at 1219.

¶ 10 At the same time, the Arizona legislature has expressly directed that

[t]he right of initiative and referendum shall be broadly construed. If there is doubt about requirements of ordinances, charters, statutes or the constitution concerning only the form and manner in which the power of an initiative or referendum should be exercised, these requirements shall be broadly construed, and the effect of a failure to comply with these requirements shall not destroy the presumption of validity of citizens' signatures, petitions of the initiated or referred measure, unless the ordinance, charter, statute or constitution expressly and explicitly makes any fatal departure from the terms of the law.

Sherrill, 189 Ariz. at 540-41, 943 P.2d at 1218-19, quoting from A.R.S. § 19-111 (Historical and Statutory Notes, Laws 1989, ch. 10, § 1).

¶ 11 In Lawrence v. Jones, this court attempted to harmonize the "broad construction" legislative directive found in § 19-111 with the existing case law mandating "strict construction." There, a landowner applied for and received approval to rezone his land. The landowner argued that the opponents' subsequent referendum petition was invalid because "the attachment of the zoning map to the petition was insufficient to meet the requirement of a `legal description' of the property pursuant to A.R.S. section 19-121(E)."<sup>5</sup> Lawrence, 199 Ariz. at 448, ¶ 3, 18 P.3d at 1247. In analyzing the threshold issue, we stated that "[i]n harmonizing these two standards, we believe that we may not excuse the failure to include a `legal description of the property' because it is strictly required by the [statute]. However, we must broadly construe the definition of that requirement in determining whether compliance was achieved." Id. at 450, ¶ 9, 18 P.3d at 1249. Accordingly, we broadly construed the requirement that a referendum petition contain a "legal description" of the property and held that the inclusion of...