Zajac v. City of Casa Grande

• Decision Date: 10 December 2004
• Docket Number: No. CV-03-0397-PR.,CV-03-0397-PR.
• Citation: Zajac v. City of Casa Grande, 102 P.3d 297, 209 Ariz. 357 (Ariz. 2004)
• Parties: Stephan G. ZAJAC, a single man, and Evelia S. Zajac, a single woman, Plaintiffs-Appellants, v. CITY OF CASA GRANDE, an Arizona municipal corporation; Wal-Mart Incorporated, Defendants-Appellees.
• Court: Arizona Supreme Court

102 P.3d 297

209 Ariz. 357

Stephan G. ZAJAC, a single man, and Evelia S. Zajac, a single woman, Plaintiffs-Appellants, v. CITY OF CASA GRANDE, an Arizona municipal corporation; Wal-Mart Incorporated, Defendants-Appellees.

No. CV-03-0397-PR.

Supreme Court of Arizona, En Banc.

December 10, 2004.

Morrill & Aronson, P.L.C. by John T. Moshier, Scott D. Larmore, Phoenix and Cole, Massey & Finley, by A. Thomas Cole, Casa Grande, Attorneys for Plaintiffs-Appellants.

Casa Grande City Attorney's Office by Kay Bigelow, Casa Grande, Attorneys for Defendant/Appellee City of Casa Grande.

Bryan Cave LLP, by Steven A. Hirsch, Stanley B. Lutz, Phoenix, Attorneys for Defendant/Appellee Wal-Mart Incorporated.

OPINION

JONES, Chief Justice.

¶ 1 The City of Casa Grande, after several hearings before the Planning and Zoning Commission and the City Council, rezoned certain property by municipal ordinance. The rezoning ordinance was subsequently upheld by the local electorate in a referendum election. The plaintiffs, two Casa Grande residents, allege that the city failed to comply with notice requirements applicable to the hearing and enactment process and ask that we nullify the referendum and invalidate the ordinance. Because the plaintiffs failed to assert a timely claim, we hold they are now barred from obtaining the relief sought.

I.

¶ 2 In September 2001, Wal-Mart, Inc. filed an application with the City requesting rezoning for approximately twenty-eight acres of property on the southeast corner of Florence Boulevard and Arizona Road in Casa Grande. Wal-Mart asked the City to change the property zone from "Urban Ranch" to "Planned Area Development." See Casa Grande City Code ("City Code") § 17.16.010 (2001) (designating zoning classifications). On October 4, 2001, a hearing took place before the Casa Grande Planning and Zoning Commission to consider Wal-Mart's request. At the hearing, the Commission decided by a five-to-two vote to recommend that Wal-Mart's request be denied. Wal-Mart appealed the recommendation to the City Council and, at a November 5, 2001 hearing, the Council granted Wal-Mart's rezoning request by a four-to-three vote. In a subsequent meeting, November 19, 2001, the City Council formally adopted the rezoning request as Ordinance No. 1178.167. Finally, on December 6, 2001, the Planning and Zoning Commission, by a five-to-two vote, approved Wal-Mart's proposed major site plan.

¶ 3 Some time after city approval of the Wal-Mart plan, a group of residents opposed to the rezoning circulated a petition to refer the ordinance to the voters in a special election. See Ariz.Rev.Stat. ("A.R.S.") §§ 19-101 to 19-143 (2001). Sufficient signatures were obtained, and the referendum was held May 21, 2002. Casa Grande voters approved the rezoning ordinance by a vote of 1,784 to 1,466.

¶ 4 More than three months later, on September 12, 2002, Stephan G. Zajac and his mother, Evelia S. Zajac (collectively, "Zajac"), filed a complaint in superior court against the City and Wal-Mart challenging the validity of the rezoning ordinance. Zajac, the owner of property located at least in part within 200 feet of the proposed Wal-Mart, charges the City with failure to give notice of the public hearings as required by Arizona law.

¶ 5 Zajac's suit is grounded in both the Casa Grande City Code, and in state statutory rezoning requirements imposed on all municipalities when addressing requests to rezone property. See City Code §§ 17.68-480 to -550 (2001); A.R.S. § 9-462.04 (Supp.2003). The statutes require a municipality to "adopt by ordinance a citizen review process that applies to all rezoning and specific plan applications that require a public hearing." A.R.S. § 9-462.03(A) (Supp.2000). Pursuant to this requirement, the City enacted a citizen review process which expressly includes procedures for notice and hearing when property is being rezoned. Notice of the time, date, place, and purpose of the hearing must be provided to the general public by publication in a newspaper of general circulation at least fifteen days prior to the first hearing. City Code § 17.68.500(B). The parties do not dispute that the City complied with these procedures. The City Code also requires that a "similar notice shall be made at least fifteen days before the day of the first hearing to each owner of property situated wholly or partly within two hundred feet of the property to which the rezoning relates." City Code § 17.68.500(C).

¶ 6 Cities are required by law to "follow[ ] the procedure prescribed in the citizen review process" any time consideration of a plan is undertaken to adopt a "zoning ordinance that changes any property from one zone to another." A.R.S. § 9-462.03(B). Thus, by reason of § 9-462.03, a failure to notify the owners of property located within the 200-foot limit results in not only a violation of the City Code but also a violation of state law.

¶ 7 The City mailed the requisite notice of the hearings to the adjacent property owners. Although Zajac's name appeared on title records as the owner of property located within 200 feet of the proposed building site, he resided with his mother elsewhere in Casa Grande. The notice or notices were apparently mailed to the subject property which, at all times relevant, was leased to a tenant. One can conclude from the record that neither Zajac nor his mother received the mailed notice.

¶ 8 Nevertheless, as noted, the hearings occurred, the ordinance was adopted, and the referendum took place. Then, more than three months after the referendum, Zajac filed the instant suit in superior court alleging that the City failed to give notice, that the rezoning ordinance was void ab initio, and that no change in the property zoning ever occurred. The suit requested that the court enjoin the City from issuing construction permits or approvals to Wal-Mart.

¶ 9 On February 18, 2003, the superior court issued a minute entry dismissing Zajac's claim. The court held that the City and Wal-Mart "complied in all respects" with statutory notice requirements and "substantially complied" with the requirements of the City Code. Finding substantial compliance to be "all that is required" under Schwarz v. City of Glendale, 190 Ariz. 508, 950 P.2d 167 (App.1997), the trial court denied Zajac's request for relief.¹

¶ 10 Zajac appealed and, in a memorandum decision, the court of appeals reversed, rejecting the "substantial compliance" standard and holding that Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959) and its progeny demand "strict compliance" with the notice requirements for public hearings on proposed zoning changes. Zajac v. City of Casa Grande, 2 CA-CV 2003-0077 ¶ 25 (Ariz.App. Oct. 6, 2003) (mem. dec.). The appellate court further found that by not mailing notice to the address of Zajac's actual residence, the City and Wal-Mart "negligent[ly] fail[ed] to comply with the city's own notice by mail requirement." Zajac, 2 CA-CV 2003-0077, slip op. at ¶ 40. The court also rejected additional arguments made by Wal-Mart, expressly finding the referendum and Zajac's prior knowledge of the referendum to be irrelevant. Zajac, 2 CA-CV 2003-0077, slip op. at ¶¶ 43-44. The court declared the rezoning ordinance null and void. Zajac, 2 CA-CV 2003-0077, slip op. at ¶ 46.

¶ 11 Wal-Mart and the City of Casa Grande jointly petitioned this court for review of the appellate decision. We granted review and directed specifically that the parties submit supplemental briefs on the effect, if any, of the zoning ordinance referendum on plaintiffs' right to sue. Our jurisdiction is established by Article VI, Section 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 (2003), and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

II.

¶ 12 Adoption of a city ordinance by the city's governing authority, the city council, is an exercise of legislative power. Our courts have consistently refrained from ajudicating substantive attacks on new city ordinances prior to completion of the adoption process; that is, until the ordinance becomes law. But in cases in which procedural defects in the adoption process are alleged, our decisions have invalidated city and county ordinances for failure to follow statutorily required procedures. See, e.g., Hart, 86 Ariz. 379, 346 P.2d 1101 (invalidating county ordinance for failure to comply with procedural requirement of state Zoning Act); Hyland v. City of Mesa, 112 Ariz. 66, 537 P.2d 936 (1975) (invalidating city ordinance for failure to comply with procedural requirements of state law).

¶ 13 Today's case arises in the context of a law that had been approved by the voters of Casa Grande in a referendum election, and requires that we focus on when challenges to the procedures by which this law was adopted must be made. Early in our state's history, this court considered a challenge similar to that presented by Zajac. In Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913), the legislature enacted a statute making it a crime to kill a quail without a license. Id. at 459-60, 130 P. at 1114-15. After a sufficient number of the voters signed referendum petitions, a state referendum followed in which voters approved the law. Id. at 464, 130 P. at 1116. The defendant, who was charged under the statute and admitted killing the quail, argued that the statute was invalid, not as to its substance, but because the matter was allegedly not submitted to the voters at the proper election, and because pre-referendum publicity required by the state constitution had not been provided. Id. at 461, 130 P. at 1115. This court addressed these procedural challenges and held that the defendant's failure to raise the objections before the referendum election barred his suit:

If objections had been made in the early stages of the process of submission for the reasons now assigned, the questions would have been subjects of judicial investigation and determination.... Timely

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