Transamerica Title Ins. Co. Trust Nos. 8295, 8297, 8298, 8299, 8300 and 8301 v. City of Tucson

• Decision Date: 05 July 1988
• Docket Number: No. CV-87-0342-AP,CV-87-0342-AP
• Citation: 757 P.2d 1055,157 Ariz. 346
• Parties: TRANSAMERICA TITLE INSURANCE COMPANY TRUST NOS. 8295, 8297, 8298, 8299, 8300 AND 8301, Donald R. Diamond and Joan B. Diamond, husband and wife, William A. Estes, Jr. and Shirley A. Estes, husband and wife, Cienega Ltd., an Arizona corporation, Plaintiffs/Appellants, v. CITY OF TUCSON, an Arizona municipal corporation, Clerk of the City of Tucson, Donald De Ment, Pima County, a body politic, Clerk of the Pima County Board of Supervisors, Jane Williams, Defendants/Appellees, and Concerned Voters Council, Inc., an Arizona non-profit corporation, Intervenor/Appellee.
• Court: Arizona Supreme Court

Page 1055

757 P.2d 1055

157 Ariz. 346

TRANSAMERICA TITLE INSURANCE COMPANY TRUST NOS. 8295, 8297, 8298, 8299, 8300 AND 8301, Donald R. Diamond and Joan B. Diamond, husband and wife, William A. Estes, Jr. and Shirley A. Estes, husband and wife, Cienega Ltd., an Arizona corporation, Plaintiffs/Appellants, v. CITY OF TUCSON, an Arizona municipal corporation, Clerk of the City of Tucson, Donald De Ment, Pima County, a body politic, Clerk of the Pima County Board of Supervisors, Jane Williams, Defendants/Appellees, and Concerned Voters Council, Inc., an Arizona non-profit corporation, Intervenor/Appellee.

No. CV-87-0342-AP.

Supreme Court of Arizona, In Banc.

July 5, 1988.

Winston & Strawn, S.L. Schorr by John N. Iurino, Merle J. Turchik, Tucson, for plaintiffs/appellants.

Frederick S. Dean, Tucson City Atty., Tucson by Bradford C. Detrick, Asst. Tucson City Atty., for defendants/appellees City of Tucson/Donald De Ment.

Stephen D. Neely, Pima Co. Atty., Tucson by Peter E. Pearman, for defendants/appellees Pima County/Jane Williams.

Stompoly & Stroud, P.C., Tucson by David L. Horley, for intervenor/appellee. HOLOHAN, Justice.

The appellants seek to set aside the judgment of the superior court denying injunctive relief against the city and county proceeding with the processing of initiative measures. This court has jurisdiction pursuant to A.R.S. § 19-122(C) and Ariz.Const. art. VI, § 5(3). The court accelerated the hearing of oral arguments on the appeal, and thereafter issued an order reversing the judgment of the superior court. The order provided that a written opinion would be filed at a later date. We now submit that opinion.

Appellants have raised a number of issues, but the only issue we need to address is whether the initiative process may be used to amend a city or county zoning ordinance. We hold that a city or county zoning ordinance may not be amended by an initiative.

On March 27, 1987, three registered voters in the City of Tucson filed an application with the city clerk for an initiative petition number. The proposed initiative would amend the Tucson City Charter by establishing areas adjacent to Saguaro National Monument, Coronado National Forest, Tucson Mountain Park, and other large "open space preserves" as "buffer zones." Although the initiative would not affect the current zoning on any parcel within the proposed buffer zones, any change in the zoning on any property within the buffer zones could not become effective until approved by a vote of the people.

On April 10, 1987, a Pima County registered voter applied for a county initiative petition serial number which would similarly amend the county's comprehensive zoning plan by establishing the same buffer zones and referendum requirements as those proposed in the city initiative. In all, more than 150,000 acres of land within the city and the county would be affected by the proposed buffer zones.

Sufficient signatures were obtained on the city initiative petition to have the proposal placed on the ballot for a November 3, 1987 election. The county initiative petitions had not been filed for certification at the time of filing the city petitions, nor were the initiative petitions filed with the county prior to the action filed by appellants.

On July 15, 1987, the appellants, who are citizens and property owners whose land lies within the proposed buffer zones, brought suit to enjoin the city and county clerks from taking further action on the proposed initiatives. In their complaint, the appellants alleged that the city and county clerks should be enjoined from taking further action on these petitions because they are illegal attempts to zone by initiative in violation of their due process and statutory rights to notice and a hearing before new restrictions are placed on their property. They also alleged that the city initiative improperly seeks to amend the Tucson City Charter without following the procedure mandated by the Arizona Constitution, and that the city initiative was untimely filed. At the time of filing their suit, appellants moved to consolidate their action with another, substantially similar, action brought by StarPass Development Company. ¹ The trial court ordered consolidation on July 20, 1987. ²

On July 20, 1987, Concerned Voters Council, Inc. ("CVC"), a nonprofit Arizona corporation whose members, officers, and board of directors support the initiatives at issue, filed motions to intervene and to quash the temporary restraining order. The trial court granted the motion to intervene and scheduled a hearing on the motion to quash.

On August 4, 1987, the trial court granted Pima County's motion to dismiss on grounds that the claims against the county were not "ripe." ³ It also granted the intervenor's motion to quash the restraining order. Several days later, the trial court also denied appellant's application for preliminary injunction. Thereafter, appellants filed various motions which were denied. The trial court then entered final judgment against appellants on all claims with respect to the city initiative petition. The court found that the initiative petition was timely filed, that appellants' due process and statutory arguments were inapplicable because the proposed initiative did not propose to affect the use of property in any of the currently existing zones, and that the city charter could be amended by initiative. Appellants filed a timely appeal with this court.

The first matter to be resolved is the county's contention that the challenge to the proposed county initiative is not ripe for adjudication because the initiative petitions had not been filed with the county. The sole action taken by the county is that the clerk of the board of supervisors has issued an initiative serial number. The county contends, and the trial judge agreed, that it is premature at this time to adjudicate this matter because it cannot be determined whether sufficient signatures will be obtained or whether the initiative will pass should they obtain the number of signatures necessary to place the matter on the ballot. Hence, no "justiciable controversy" exists. Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 497 P.2d 534 (1972).

Under the factual situation presented by this case we are unable to agree that this matter is premature. The appellants in one action challenged the process being used to amend both the city and county zoning ordinances. The process in the case of the city has proceeded to the point of scheduling an election, and the same effort is proceeding to obtain a similar result for the county. The principles of law dispositive of the matter are the same for both the city and the county. The interests of judicial economy and conservation of public resources make the case against the county ripe for determination.

The appellants argue that our decision in City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968), is dispositive of this matter. In Scottsdale a group of citizens attempted to rezone certain parcels by the initiative process. Affected land owners brought suit to obtain a judgment declaring the initiative petition void and that the Scottsdale City Clerk had exceeded her jurisdiction by accepting the initiative petition. The trial court ruled that a zoning ordinance could not be the subject of an initiative measure.

We affirmed the trial court's ruling stating:

[I]t is clear and we hold that the initiative process is not available as a mode for amending a comprehensive zoning plan. It is an irreconcilable conflict with the due process clause of the United States Constitution, Fourteenth Amendment ...

Id. at 207, 439 P.2d at 293. (citations omitted)

In Scottsdale, we noted that zoning by initiative also violated "the express provision of the state statute which delegated zoning powers to 'the governing body of an incorporated city.' A.R.S. § 9-461, et seq." Id. at 208, 439 P.2d at 294. ⁴ In addition, the State Zoning Enabling Act requires notice and hearing before any new zoning regulations are adopted. Id. For example, A.R.S. § 9-462.04 requires notice and a public hearing where a city zoning ordinance is to be adopted which changes any property from one zone to another, imposes any regulation not previously imposed or which removes or modifies any such regulation previously imposed. See also A.R.S § 9-462.03. ⁵ Hence, in Scottsdale we concluded that "zoning law is exempted from the initiative process," in order to prevent private citizens from usurping the governing body's delegated power and from circumventing the notice and hearing requirements of the zoning statute. Id. at 208, 439 P.2d at 294; see also Dewey v. Doxey-Layton Realty Co., 3 Utah 2d 1, 7, 277 P.2d 805, 809 (1954) ("electors of the city cannot by-pass [the notice and public hearing] provisions of the statute as long as the zoning statute remains in force.")

In the present case, the initiatives seek to amend the city and county comprehensive zoning plans by establishing a new classification of property. The property in the new classification, property within buffer zones, is to be treated differently from any other property within either the city or county zoning system. The county and intervenor attempt to limit the broad language of Scottsdale arguing that it dealt with an initiative which sought to change the use of specific property. The county and intervenor contend that the proposed initiatives change the procedures for rezonings, but they do not change the uses permitted on any particular property within the proposed buffer zones.

We reject this contention. It is clear that the proposed city and county initiatives would, in fact, establish new classifications or zones which would alter current property classification. Hence, they impermissibly usurp the city and county's delegated authority to amend their respective comprehensive zoning plans. Furthermore, these...