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Is the Issuance of a City Use Permit Referable? Not When It Is an Administrative Act

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By: Adam E. Lang

Arizona’s Constitution gives electors in cities, towns, and counties the ability to refer legislation that was enacted by their local elected officials to the ballot for popular vote. Ariz. Const. art. IV, Pt. 1 § 1(8). But only legislative acts are referable; administrative acts are not. In general, a legislative act makes new law and creates policy, is permanent in nature, and is generally applied. On the other hand, an administrative act is one that executes and implements a law already in place. Wennerstrom v. City of Mesa, 169 Ariz. 485, 489-90, 821 P.2d 146, 150-51 (1991).

For more than fifty years, Arizona courts have been clear: zoning and rezoning ordinances are legislative acts and therefore referable to popular vote. City of Phoenix v. Fehlner, 90 Ariz. 13, 17, 363 P.2d 607, 609 (1961) (holding that “what constitutes an appropriate zone is primarily for the legislature”); Fritz v. City of Kingman, 191 Ariz 432, 432, 957 P.2d 337, 337 (1998) (noting “we reaffirm our view that zoning decisions are legislative matters subject to referendum”); Pioneer Trust Co. of Arizona v. Pima Cty., 168 Ariz. 61, 64–65, 811 P.2d 22, 25–26 (1991) (holding “that, in Arizona, zoning decisions are legislative acts subject to referendum” and that even a “conditional approval of . . . rezoning was a legislative act”); Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 653 P.2d 694 (1982) (analyzing whether zoning referendum complied with statutory requirements); Wait v. City of Scottsdale, 127 Ariz. 107, 108, 618 P.2d 601, 602 (1980) (noting “that the enactment and amendment of zoning ordinances constitute legislative action”); City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975) (“The matter of zoning is appropriately one for the legislative branch of government.”); Queen Creek Land & Cattle Corp. v. Yavapai Cty. Bd. of Sup’rs, 108 Ariz. 449, 452, 501 P.2d 391, 394 (1972) (denying an attempt to enjoin referendum on county’s zoning decision).

But whether a use permit is referable under Arizona law is not quite as clear. In 2004, in Redelsperger v. City of Avondale, 207 Ariz. 430, ¶ 15 (App. 2004), while setting forth three factors that a court should consider in determining whether the grant of the use permit is referable, Division One of the Arizona Court of Appeals left little doubt about its thoughts of special use and conditional use permits: “[W]e conclude that the approval of a conditional use permit is an administrative act and therefore not subject to the referendum power reserved to the citizens of a municipal corporation under Article 4, Part 1, Section 1(8), of the Arizona Constitution.”
Division Two of the Arizona Court of Appeals recently articulated its thoughts on the topic in Maricopa Citizens Protecting Taxpayers v. Price, No. 2 CA-CV 2017-0134 (Ariz. App. Dec. 4, 2017). In Price, Private Motorsports Group, LLC (“PMG”) wanted to build a motorsports facility in the City of Maricopa. Id., at ¶ 1. The parcel of land on which the facility was to be built was zoned “CI-2–Industrial Zone” when the City annexed the land in 2007. Id., at ¶ 2. In 2015, the City adopted a new zoning code. Id. In February 2017, PMG applied for a conditional use permit (a possible designation under the 2015 zoning code) with the City of Maricopa to build its motorsports facility. Id. Under the 2007 zoning code, a CI-2–Industrial Zone designation included a racetrack or sports stadium as a potential use. Id. In April 2017, the City approved PMG’s application for a conditional use permit to build the motorsports facility. Id.

Unhappy with a motorsports facility being built, Petitioner Maricopa Citizens Protecting Taxpayers filed a referendum application and submitted nearly 1000 petition signatures. Id., at ¶ 3. The City Clerk found that the application for the conditional use permit was not referable because it was an administrative act. Id. Petitioner filed a complaint, arguing that, among other things, that the City’s decision to approve PMG’s permit was a legislative act. Id., at ¶ 4. The trial court agreed, and this matter was appealed. Id.
In ultimately concluding that the issuance of the use permit to PMG was an administrative, not legislative act, and therefore not referable, the Court of Appeals analyzed the three factors Division One previously articulated in Redelsperger: (1) whether the grant of the use permit is “‘permanent or temporary, (2) of general or specific (limited) application, and (3) a matter of policy creation or a form of policy implementation.’” Price, 2 CA-CV 2017-0134, ¶ 9 (quoting Redelsperger, 207 Ariz. 430 at ¶ 15). The Price Court determined that these factors weighed against finding the grant of the use permit was a legislative act:

• Temporary Use: Since the City could have imposed a restriction on the duration of the use permit, the grant of the use permit was temporary. Id. at ¶¶ at 10-11.

• Specific Application: Since the use permit granted to PMG was limited to a single piece (albeit a large piece) of land, the use permit was of limited application. Id. at ¶ 12.

• Policy Implementation: Although the City had discretion to deny the use permit application, and the more discretion the City has to do so, the more likely the act will be considered policy creation, discretion is only one factor to look at in determining whether policy is being implemented or created. Since the 2007 zoning code expressly allowed for the use sought by PMG, the “City merely executed already existing policy.” Id. at ¶ 15.

Following Price, it is once again clear that Arizona courts simply are unwilling to treat zoning ordinances and applications for use permits the same when it comes to being subject to the referendum power. Zoning ordinances, maybe without exception, are legislative acts, referable to a popular vote of qualified electors. Use permit applications simply are less clear. The unqualified and absolutist conclusion of the Court in Redelsperger suggests that application determinations of use permits are never subject to referendum. While the Price Court follows the Redelsperger factors and applies them to the facts of the case, it does so on a factor-by-factor basis and seems to shy away from adopting the same unyielding and absolute proclamations that the Redelsperger Court previously did. In doing so, the Price Court could be signaling a possible scenario where the granting of a use permit could possibly be referred to the ballot. Some hope for referendum fans.