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Maricopa Citizens Protecting Taxpayers v. Price

Court of Appeals of Arizona, Second Division

December 4, 2017

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,
v.
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,
v.
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,
v.
Maricopa Citizens Protecting Taxpayers, a political action committee, Counterdefendant/Appellee.

         Appeal 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.

          OPINION

          STARING, PRESIDING JUDGE.

         ¶1 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.

         Factual and Procedural Background

         ¶2 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.

         ¶3 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.

         ¶4 Maricopa Citizens filed a complaint naming PMG, [1] the 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.

         ¶5 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 referendum.

         ¶6 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. ยงยง 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 ...


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