Maricopa Citizens Protecting Taxpayers, a political action committee formed and registered pursuant to A.R.S. § 16-905; Robert Rebich, individually and as Chairman of Maricopa Citizens Protecting Taxpayers; David Prom, individually and as Treasurer of Maricopa Citizens Protecting Taxpayers, Plaintiffs/Appellees,
Christian Price, in his official capacity as Maricopa Mayor; Marvin L. Brown, in his official capacity as Maricopa Councilman; Peggy Chapados, in her official capacity as Maricopa Councilwoman; Vincent Manfredi, in his official capacity as Maricopa Councilman; Nancy Smith, in her official capacity as Maricopa Councilwoman; Julia R. Gusse, in her official capacity as Maricopa Councilwoman; Henry Wade, in his official capacity as Maricopa Councilman; Vanessa Bueras, in her official capacity as Maricopa City Clerk; City of Maricopa, Arizona, a public entity, Defendants/Appellants, and Private Motorsports Group, LLC, an Arizona limited liability company, Real Party in Interest/Appellant. and Private Motorsports Group, LLC, an Arizona limited liability company, Cross-Claimant/Appellant,
Christian Price, in his official capacity as Maricopa Mayor; Marvin L. Brown, in his official capacity as Maricopa Councilman; Peggy Chapados, in her official capacity as Maricopa Councilwoman; Vincent Manfredi, in his official capacity as Maricopa Councilman; Nancy Smith, in her official capacity as Maricopa Councilwoman; Julia R. Gusse, in her official capacity as Maricopa Councilwoman; Henry Wade, in his official capacity as Maricopa Councilman; Vanessa Bueras, in her official capacity as Maricopa City Clerk; City of Maricopa, Arizona, a public entity, Cross-Defendants/Appellants. Private Motorsports Group, LLC, an Arizona limited liability company, Counterclaimant/Appellant,
Maricopa Citizens Protecting Taxpayers, a political action committee, Counterdefendant/Appellee.
from the Superior Court in Pinal County No. S1100CV201701220
The Honorable Robert Carter Olson, Judge Pro Tempore.
Fitzgibbons Law Offices, PLC, Casa Grande By Denis M.
Fitzgibbons and Tina L. Vannucci Counsel for
Defendants/Cross-Defendants/Appellants City of Maricopa.
Coppersmith Brockelman PLC, Phoenix By Roopali H. Desai,
Keith Beauchamp, and D. Andrew Gaona and Rose Law Group, PC,
Scottsdale By Evan Bolick and Logan V. Elia Counsel for Real
Party in Interest/Cross-Claimant/Counterclaimant/ Appellant
Private Motorsports Group, LLC.
Timothy A. La Sota, PLC, Phoenix By Timothy A. La Sota
Counsel for Plaintiffs/Counterdefendants/Appellees Maricopa
Citizens Protecting Taxpayers.
Presiding Judge Staring authored the opinion of the Court, in
which Judge Espinosa and Judge Eppich concurred.
STARING, PRESIDING JUDGE.
Private Motorsports Group, LLC ("PMG"), the Clerk
of the City of Maricopa ("the Clerk"), and the
Mayor and individual members of the City Council
(collectively, "the City") appeal from the trial
court's ruling in favor of Maricopa Citizens Protecting
Taxpayers and its officers, Robert Rebich, and David Prom
(collectively, "Maricopa Citizens") in their action
seeking declaratory, injunctive, and special action relief
regarding a petition seeking a referendum on the City's
decision to grant PMG a permit to operate a motorsports
facility. PMG also appeals from the court's denial of its
counterclaims against Maricopa Citizens and cross-claims
against the Clerk. On September 6, 2017, we reversed the
trial court and directed it to enter judgment in favor of
PMG, the Clerk, and the City, indicating a written opinion
would follow. This is that opinion.
and Procedural Background
The controversy in this case centers on a large parcel of
land located in Pinal County. In 1963, it was zoned
"CI-2- Industrial Zone." The City annexed the
property in 2007, but retained its zoning designation under
the then-existing zoning code ("the Old Code"). The
City adopted a new zoning code ("the New Code") in
2015. Subsequently, PMG sought a permit to build a
motorsports facility on the site and, pursuant to the
City's instructions, submitted in February 2017 a
"Conditional Use Permit Application" (a designation
that existed only in the New Code) upon which someone had
handwritten "Industrial Use Permit" (a designation
that existed only under the Old Code). The Old Code expressly
identified a "[r]acetrack or sports stadium" as a
possible use under the property's existing CI-2-
Industrial Zone designation. In April 2017, the City's
Zoning and Planning Commission unanimously approved PMG's
application, as did the City Council.
Maricopa Citizens then filed a referendum application and, in
June 2017, submitted eighty-six petition sheets containing
approximately 1, 000 signatures. The Clerk determined the
subject matter of the referendum was "an administrative
act, rather than a legislative act and, therefore, not
subject to referendum." The Clerk also disqualified
thirty signatures for statutory reasons.
Maricopa Citizens filed a complaint naming PMG,
Clerk, and the City as defendants. Maricopa Citizens first
argued the City had violated the New Code by issuing the
permit, claiming the property had to first be rezoned and
then approved by the Planning and Zoning Commission instead
of the City Council. Thus, Maricopa Citizens reasoned, the
City's action was "akin to a zoning decision and
therefore referable" because a conditional use permit
did not exist under the old zoning designation. According to
Maricopa Citizens, the City had "made policy" by
deciding "a property owner that was in a district under
the Old Code in which he was eligible to apply for an
industrial use permit [was] now eligible for a conditional
use permit" and by determining "the decision
whether to grant [a conditional use permit] should be
governed by the Old Code." Maricopa Citizens further
argued that, under the Old Code, the City's determination
to award PMG a permit constituted a legislative decision.
Finally, Maricopa Citizens contended the Clerk lacked
authority to invalidate twelve of the signatures pursuant to
A.R.S. § 19-121.01 because only the city or zip code was
missing, and not the residence address.
PMG counterclaimed against Maricopa Citizens and cross-
claimed against the City and the Clerk for declaratory,
injunctive, and special-action relief, asserting the petition
sheets "invert[ed] the placement of the designation of
the 'Maricopa City Council' as the body enacting the
matter to be referred" and thus did not comply with
A.R.S. § 19-101(A). PMG further asserted the sheets
violated A.R.S. § 19-121(A)(5) "by having a top
margin of less than one-half inch." Thus, PMG concluded,
the petition sheets were invalid because they did not
strictly comply with applicable statutory requirements for
After briefing and oral argument, the trial court ruled in
favor of Maricopa Citizens, concluding the grant of the use
permit was legislative action and thus subject to referendum
irrespective whether "the new code preserved the right
to apply for an industrial use permit, or if the City Council
made a policy decision to restore that right." It
further concluded the Clerk's decision to disqualify
twelve signatures "exceeds the permitted scope of the
initial review" allowed by statute. Finally, the court
determined the petitions were not "fatally defective,
" finding the "petition strictly complies with
A.R.S. §§ 19-101(A) and 19-121(A) as reasonably
construed to supplement its constitutional purpose."
Accordingly, the court ordered the Clerk "to include the
twelve signatures in the count of eligible signatures,
include those signatures in the pool of eligible signatures
for random selection, and promptly forward ...