Published on May 15, 2012
N THE COURT OF APPEALS, STATE OF ARIZONA, DIVISION TWO, on MAY15, 2012 CASE # 2 CA-CV 2012-0069
DAVID DEVINE and DAVID BOSTON Plaintiffs-Appellants, by Attorney William J. Risner of RISNER & GRAHAN
ROGER W. RANDOLPH, Clerk of the City of Tucson, by City Attorney Dennis P. McLaughlin
Defendant-Appellee, CAMPUS ACQUISITIONS HOLDINGS, DRI/CA TUCSON, CAMPUS INVESTORS TUCSON, ..., all are Delaware Limited Liability Company, by Attorney Kimberly A. Demarchi of LEWIS AND ROCA LLP.
List of Briefs filed with the Court Of Appeals:
1 Appellant Brief to Arizona Court of Appeals By Bill Risner:
2 Brief of Defendant -- Appellee by the Office of the City of Tucson City Attorney May 11, 2012: http://tinyurl.com/6pby78s
3A Brief By Attorneys for Intervenors-Appellees Campus Acquisitions, By Lewis and Roca May 11, 2012: http://tinyurl.com/6pqo4cl
3B Appendix To Brief Of Intervenors-Appellees by Lewis and Roca May 11, 1012: http://tinyurl.com/6rwxkzf
3C Final Appendix to Brief of Intervenors-Appellees by Lewis and Roca: http://tinyurl.com/78zozxb
Tucson Weekly - Guest Commentary: The city's unfair and illegal actions are violating the constitutional rights of Tucsonans By Dave Devine
Except from the Tucson Weekly:
When Arizona achieved statehood 100 years ago, voters were given three progressive constitutional powers: the direct initiative of legislation; the recall of elected officials; and the referendum to void legislation.
In Tucson, the last of those is now in serious jeopardy of, as they say in baseball, getting struck out. The original Arizona Constitution made it fairly simple for city voters to use their referendum powers. It stated of either referring adopted legislation to the voters for a final decision, or having it voided before that step was taken: "... 10 percent of the electors may propose the referendum on legislation enacted within and by such city."
In the last century, onerous requirements have been placed on the petition-signature-gathering process by the courts, meaning the potential use of the referendum is severely restricted. Strike one!
In Tucson, the City Council on Feb. 28 adopted an "overlay zone" near the University of Arizona. This area now has a variety of commercial, residential and other uses in mostly single- and two-story buildings, some of which are listed on the National Register of Historic Places. The overlay zone would allow high-density, multistory redevelopment up to almost 160 feet in height. Disappointed by this move, many nearby residents began a public effort to either refer the overlay zone to the voters, or have the City Council rescind it.
City officials supplied referendum organizers with a petition for signatures. These officials work for—and some are appointed by—the City Council. Petition-drive organizers had 30 days to collect the valid signatures of approximately 8,500 registered Tucson voters.
After about 20 days had passed—and more than 6,000 signatures had been collected on the original petitions—city officials decided the form they had supplied was legally insufficient. The petition-passers, many of whom live in the West University Neighborhood that encompasses the overlay zone, then used another petition to collect almost 6,000 additional signatures.
When all 12,000 signatures were submitted to City Hall at the end of March, municipal officials, not surprisingly, almost instantly rejected them all, stating there weren't enough valid signatures to refer the overlay zone to voters. Strike two!
Two petition signers—David Boston and I—then filed a lawsuit in an attempt to require the city to accept all of the petition signatures and determine if they are sufficient to refer the overlay zone to voters. It is truly a legal case of two Davids vs. the Goliath of City Hall.
Some people argue the overlay zone is needed to create a high-density, big-city area in Tucson while also providing potential riders for the modern streetcar. Others say this type of development should go downtown, and that the overlay will result in the demolition of historic structures.
That argument is completely irrelevant to the lawsuit. Instead, what is essential is protecting the democratic rights of voters. Many signatures, including my own, got tossed aside because they were on the first petition.
It is vital that the voters of Tucson be the final decider on legislation, just as the 1912 state Constitution intended. If City Hall's position prevails—that even though they supplied the legally insufficient petition, the signatures on it shouldn't be counted—then we've all lost a basic right.
I hope the Superior Court orders the city to determine if there are enough valid signatures on both petitions. It was City Hall's mistake, after all, by providing the wrong form.
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