Workers v. Tempe

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
WORKERS FOR RESPONSIBLE DEVELOPMENT, et al.,
Plaintiffs/Appellants/Cross-Appellees,
v.
CITY OF TEMPE, et al.,
Defendants/Appellees/Cross-Appellants,
and
SOUTH PIER TEMPE HOLDINGS LLC,
Real Party in Interest-Appellee.
No. 1 CA-CV 22-0395 EL
FILED 1-26-2023
Appeal from the Superior Court in Maricopa County
No. CV2022-003530
The Honorable John R. Hannah, Judge
AFFIRMED IN PART AND REVERSED IN PART
COUNSEL
Barton Mendoza Soto, PLLC, Tempe
By James E. Barton, II, Jacqueline Soto
Counsel for Plaintiffs/Appellants/Cross-Appellees
Tempe City Attorney's Office, Tempe
By Sonia M. Blain, Michael R. Niederbaumer, Sarah R. Anchors
Counsel for Defendants/Appellees/Cross-Appellants
Gammage & Burnham, PLC, Phoenix
By Cameron C. Artigue, Camila Alarcon
Counsel for Real Party in Interest-Appellee
Berry Riddell LLC, Scottsdale
By Jeffrey D. Gross
Counsel for Amicus Curiae
OPINION
Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 Workers for Responsible Development and Joshua Wells
(collectively "Workers") appeal the superior court's ruling that their
referendum petition did not strictly comply with statutory requirements.
The City of Tempe ("City") and Carla Reece ("City Clerk") cross-appeal the
court's ruling that City Ordinance No. O2022.06 ("Ordinance") is subject to
referendum. South Pier Tempe Holdings LLC ("Developer"), the real-
party-in-interest, defends the superior court's strict-compliance ruling.
Because the referendum petition used by Workers contained all the
statutorily required information, the superior court erred in finding that the
document did not strictly comply. But the court correctly determined that
the Ordinance was referable because it decided and implemented extensive
tax, expenditure, sale, and development policies.
FACTS AND PROCEDURAL BACKGROUND
¶2 The City Council passed and adopted the Ordinance on
February 10, 2022. The Ordinance authorized the City's mayor to execute a
Development and Disposition Agreement ("Development Agreement")
with Developer. The Development Agreement concerned twelve-and-a-
half acres of City-owned land near Tempe Town Lake that included a
phased sale of the property, Government Property Lease Excise Tax
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WORKERS, et al. v. TEMPE, et al.
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("GPLET") leases, a Conceptual Development Plan ("CDP"), the City's
required approval of a Planned Area Development ("PAD"), Construction
Sales Tax Rebates, Parcel Development Agreements ("PDA") subordinate to
the Development Agreement, "Public Financing Opportunities," and other
documents related to the Ordinance.
¶3 The City Clerk provided Workers with a copy of the
Ordinance on February 15, 2022, as required by A.R.S. § 19-142(C). Workers
sought to challenge the Ordinance via referendum and the City Clerk
provided Workers a referendum-petition form developed by the City.
¶4 Workers timely tried to file their referendum petition, but the
City Clerk refused to accept it. Later, the City provided Workers with a
written statement formally rejecting the referendum petition by asserting
that the City Council's approval of the Ordinance constituted a non-
referable administrative act because the Ordinance dealt with specific
parcels of land and neither related to "any amendments to the City's codes"
nor any "policy creation or implementation."
¶5 Workers timely challenged the City's rejection in the superior
court. Workers sought (1) a writ of mandamus to compel the City Clerk to
file and process its referendum petition, and (2) permanent and preliminary
injunctions to prohibit the Ordinance from taking effect. The court
concluded that the Ordinance and the Development Agreement together
constituted a legislative act subject to referendum but concluded that
Workers' petition form was invalid because it did not strictly comply with
the "required order" for referenda forms under A.R.S. § 19-101(A).
Accordingly, the court denied Workers' application for a preliminary
injunction and declined to compel the City Clerk to process Workers'
referendum petition.
¶6 Workers timely appealed and the City cross-appealed. As the
real-party-in-interest on appeal, Developer defends the superior court's
strict-compliance ruling. We have jurisdiction under A.R.S. §§ 12-
120.21(A)(1), -2101(A), and 19-122(A). See Perini Land & Dev. Co. v. Pima
County, 170 Ariz. 380, 382 (1992) (instructing parties to file referendum
appeals in the court of appeals).
DISCUSSION
¶7 The Arizona Constitution reserves the power of referendum
to the qualified electors of incorporated cities. Ariz. Const. art. 4, pt. 1,
§ 1(8). The referendum power "permits qualified electors to circulate
petitions and refer legislation which has been enacted by their elected
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representatives to a popular vote." Redelsperger v. City of Avondale, 207 Ariz.
430, 432, ¶ 8 (App. 2004).
¶8 We review a trial court's decision on a request for injunctive
relief for an abuse of discretion. Parker v. City of Tucson, 233 Ariz. 422, 428,
¶ 11 (App. 2013). But we review questions of law and the interpretation of
election statutes de novo. Arrett v. Bower, 237 Ariz. 74, 77, ¶ 7 (App. 2015);
Redelsperger, 207 Ariz. at 432, ¶ 7.
¶9 On appeal, the parties dispute whether (1) Workers'
referendum petition form strictly complied with A.R.S. § 19-101(A); and (2)
the Ordinance is subject to referendum. We address each in turn.
I. Strict Compliance
¶10 The statute provides, in relevant part, that the "following shall
be the form for referring to the people by referendum petition" and lists the
"Referendum Description" before the "Petition for Referendum." A.R.S.
§ 19-101(A). As noted above, Workers employed a petition form provided
by the City Clerk. Using that form, Workers circulated petitions that listed
the "Petition for Referendum" first, followed by the "Referendum
description," as follows:
Petition for Referendum To the Clerk: We, the undersigned citizens and qualified electors of the state of
Arizona, respectfully order that local measure No. O2022.06 entitled Ordinance No. O2022.06 (title of act or ordinance, and if
the petition is against less than the whole act or ordinance then set forth here, the item, section, or part, of any measure on which
the referendum is used), passed by the Tempe (city or town) Council shall be referred to a vote of the qualified electors of
the city or town for their approval or rejection at the next regular general election (or city or town election) and each for himself
says: I have personally signed this petition with my first and last names. I have not signed any other petition for the same measure.
I am a qualified elector of the state of Arizona, city or town of Tempe .
Referendum description: Insert a description of not more than 200 words of the principal provisions of the proposed measure
sought to be referred. Notice: This is only a description of the measure sought to be referred prepared by the sponsor of the
measure. It may not include every provision contained in the measure. Before signing, make sure the title and text of the measure
are attached. You have the right to read or examine the title and text before signing.
An ordinance of the city council of the City of Tempe authorizing the mayor to execute a development and disposition agreement
with South Pier Tempe Holdings LLC, for the project located at 1131 East Vista del Lago Drive, Tempe, AZ and related documents
necessary to the project. Key project components of the Project include Class A office, for rent apartments and for sale condos,
destination retail, a hotel, Central green and plaza areas for pedestrian gathering, resort inspired landscaping and an enhanced
levee trail where multipurpose path is located to activate that outdoor area, and the first phase of pedestrian bridge on eastern end
of the Project with an attached pier and an observation wheel. Developer intends to purchase the property for $74.02 per square
foot. Upon completion of first improvement on each parcel, the Developer will complete the purchase of that parcel and receive a
Government Property Lease Excise Tax lease allowing for 8 years of tax abatement. Developer will provide certain public benefits
including $12,680,688 with 80% allocated to Tempe Coalition for Affordable Housing and 20% to Tempe Transit Fund, and other
cash contributions as certain construction phases are completed. Developer will commence construction in January 31, 2023.
¶11 Developer argues that Workers' form fails to comply strictly
with A.R.S. § 19-101(A). But other than the inverted order of the
"Referendum description" and "Petition for Referendum," the parties do not
dispute that the petition complies with A.R.S. § 19-101(A).
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¶12 Workers argue that the petition form strictly complied with
A.R.S. § 19-101(A) despite the reversed order of the "Referendum
description" and the "Petition for Referendum." We agree.
¶13 "Statutory interpretation requires us to determine the
meaning of the words the legislature chose to use. We do so . . . according
to the plain meaning of the words in their broader statutory context . . . ."
S. Ariz. Home Builders Ass'n v. Town of Marana, --- Ariz. ---, ---, ¶ 31 (Jan. 17,
2023). The statute provides that the "statutory requirements for the
referendum be strictly construed and that persons using the referendum
process strictly comply with those constitutional and statutory
requirements." A.R.S. § 19-101.01; see also Comm. for Pres. of Established
Neighborhoods v. Riffel, 213 Ariz. 247, 249, ¶ 6 (App. 2006) (noting strict
compliance "requires nearly perfect compliance"). Although the legislature
added A.R.S. § 19-101.01 in 2015, Developer acknowledges that strict
compliance for referenda pre-dates the current statute and has been the
standard in Arizona for quite some time. See Cottonwood Dev. v. Foothills
Area Coal. of Tucson, Inc., 134 Ariz. 46, 49 (1982) (stating that referenda are
subject to strict compliance with statutory and constitutional requirements
(citing Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5-6 (1972))).
¶14 "If the statute has only one reasonable meaning when
considered in context, we apply that meaning without further analysis. If
the statute has more than one reasonable meaning, we apply secondary
interpretive principles, including considering the statute's subject matter
and purpose, to identify legislative intent." Leibsohn v. Hobbs, 254 Ariz. 1, 4,
¶ 10 (2022) (internal citations omitted).
A. Meaning of "Form"
¶15 Arizona statutes have long provided for the use of a standard
form for referenda. E.g., 1912 Ariz. Sess. Laws, ch. 71, § 1 (1st Spec. Sess.)
("The following shall be substantially the form of petition for referring to
the people by referendum petition . . . ."); A.R.S. § 19-101 (1979) ("The
following shall be the form for referring to the people by referendum
petition . . . ."); A.R.S. § 19-101 (1991) ("The following shall be the form for
referring to the people by referendum petition . . . .").
¶16 The parties dispute whether the statute's prescription for the
"form" of referendum petitions dictates both the content of the petition and
the order in which that content is provided. Workers argue "form" relates
to the "proper contents, not the proper order of words," while Developer
argues "form" means "the order in which the information appears." At oral
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argument, Developer acknowledged that resolving strict-compliance
hinges on interpreting the meaning of "form." On this point, Developer
argued that dictionary definitions of "form" connote organization and
structure, and not just a list of items.
¶17 Dictionaries provide multiple definitions of the word "form."
See State v. Wise, 137 Ariz. 468, 470 n.3 (1983) (explaining courts may
reference dictionaries to glean the ordinary meaning of words); Cuomo v.
Clearing House Ass'n, L.L.C., 557 U.S. 519, 526 (2009) (interpreting a statute
based on the understanding of terms at the time of enactment). Notably,
Black's Law Dictionary provided an essentially identical definition of
"form" from the time of Arizona's statehood through 1990. See Form, Black's
Law Dictionary (2d ed. 1910); Form, Black's Law Dictionary (4th ed. 1951);
Form, Black's Law Dictionary (5th ed. 1979); Form, Black's Law Dictionary
(6th ed. 1990); see also State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz.
127, 131-32, ¶ 15 (2022) (citing, with approval, the use of Black's Law
Dictionary definitions to interpret statutes). From 1910 to 1990, Black's
defined "form" as a "model or skeleton of an instrument to be used in a
judicial proceeding or legal transaction, containing the principal necessary
matters, . . . arranged in proper and methodical order, and capable of being
adapted to the circumstances of the specific case." E.g., Form, Black's Law
Dictionary (6th ed. 1990) (emphasis added). This definition provides
support for Developer, insofar as "form" contemplates a "proper and
methodical order" in which information is presented, but also supports
Workers in that a "form" is "capable of being adapted" and, thus, not
necessarily fixed. Id.¶18 Other dictionaries do not provide greater clarity or mandate
a contrary conclusion. For example, one early dictionary includes multiple
definitions of "form" as a noun:
the external appearance or shape of anything; image; likeness;
orderly arrangement; beauty; symmetry; determinate shape
or structure; established practice, or ritual; a mold or pattern;
an official formula; a long bench without a back; a class; state
or high condition or fitness; the bed or seat of a hare; types,
places, &c., imposed in a chase ready for printing (forme) . . . .
Form, New Websterian Dictionary (1912); see also Matthews v. Indus.
Comm'n, --- Ariz. ---, ---, ¶ 36, 520 P.3d 168, 175, ¶ 36 (2022) (describing the
New Websterian Dictionary (1912) as an "authoritative dictionary
published at the time our constitution was adopted"). The most helpful
definitions for Developer are "orderly arrangement" and "determinate
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shape or structure." But those definitions do not negate "likeness" as
another definition of "form." And "likeness" can be defined as "similarity."
Likeness, New Websterian Dictionary (1912); see also Similarity, New
Websterian Dictionary (1912) (defining "similarity" as "resemblance"). By
changing the order of the required information, Workers may not have
precisely mirrored the "orderly arrangement" or "determinate . . . structure"
described in A.R.S. § 19-101(A), but one cannot say that there is not a
"likeness" (similarity/resemblance) between Workers' document and the
example provided in the statute.
¶19 Another more-recent dictionary provides 25 separate
definitions and subdefinitions of "form" as a noun. Form, Webster's New
Collegiate Dictionary (9th ed. 1984). Those definitions include (2) "the
essential nature of a thing as distinguished from its matter," (3)(b) "a
prescribed and set order of words," and (4) "a printed or typed document
with blank spaces for insertion of required or requested information . . . ."
Id. The former is arguably consistent with Workers' position, i.e.,
emphasizing the contents and not necessarily the order of the words. But
the latter two definitions support Developer's argument, i.e., that the order
of the content is important.
¶20 Rather than trying to select from among these competing
dictionary definitions, we must acknowledge that "form" is ambiguous, and
look for guidance in statutory interpretation principles. See Leibsohn, 254
Ariz. at 4, ¶ 10; Fann v. State, 251 Ariz. 425, 434, ¶¶ 26-27 (2021) (interpreting
a statutory phrase based on context after noting competing dictionary
definitions of "grant"); see also Wilks v. Manobianco, 237 Ariz. 443, 446, ¶ 8
(2015) ("[I]f the language is ambiguous, we look to the statute's history,
context, consequences, and purpose.").
¶21 In this case, two interpretive principles are both instructive
and dispositive. First, absent a clear contrary indication, we presume that
words or phrases bear the same meaning throughout a text. See Fann, 251
Ariz. at 442, ¶¶ 60-61. And, second, "when the legislature uses different
language within a statutory scheme, it does so with the intent of ascribing
different meanings and consequences to that language." Riffel, 213 Ariz. at
249-50, ¶ 8.
¶22 Van Riper v. Threadgill, 183 Ariz. 580 (App. 1995), is
instructive. There we found that a referendum petition with only ten
signature lines strictly complied despite A.R.S. § 19-101(A)'s instruction that
referenda forms contain "[f]ifteen lines for signatures which shall be
numbered." Id. at 584. In finding strict compliance, we looked to a related
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election statute, A.R.S. § 19-121(C), which declares that "[n]ot more than
fifteen signatures on one sheet shall be counted," and found that "the fifteen
signature lines referred to in [A.R.S. § 19-101(A)] is a maximum rather than
a minimum." Van Riper, 183 Ariz. at 584. During oral argument, Developer
expressly declined to argue that Van Riper was wrongly decided and urged
us to "harmonize" election statutes as in Van Riper to interpret A.R.S. § 19-
101(A). Consistent with this approach, we look to other election statutes.
¶23 When the legislature intends to preclude changes to an
election-related form, it has said so. Like A.R.S. § 19-101(A) does for
referenda, A.R.S. § 19-204(G) provides a "form" to use for a recall petition
affidavit. But A.R.S. § 19-204(H) explicitly provides that the "form of the
affidavit shall not be modified," and any petition "contain[ing] a partially
completed affidavit or an affidavit that has been modified is invalid."
¶24 Similarly, A.R.S. § 19-112(F) provides a "form" for initiative
petition affidavits and provides that "[t]he form of the affidavit shall not be
modified." And A.R.S. § 19-213 provides a "form" for recall ballots and
provides that the "form of the ballot shall conform as nearly as practicable
to the ballot prescribed for general elections." Even in the referenda context,
the legislature has specified when an improperly completed form shall not
count. See A.R.S. § 19-101(E) ("Signatures obtained on referendum petitions
[that do not indicate whether the circulator is paid or a volunteer] are void
and shall not be counted . . . ."). Because the legislature has shown that it
knows how to prohibit changes to election forms, it is noteworthy that
A.R.S. § 19-101(A) does not explicitly prohibit modification to the
referendum "form." See Riffel, 213 Ariz. at 249-50, ¶ 8 (noting "that when
the legislature uses different language within a statutory scheme, it does so
with the intent of ascribing different meanings and consequences to that
language").
¶25 Other election statutes also demonstrate that the legislature
has specified the order in which information is presented when it desires to
do so. Section 16-502, titled "Form and contents of ballot," provides for both
the content of ballots and detailed instructions regarding the order in which
information is presented: "ballots shall be headed 'official ballot' in bold-
faced plain letters, with a heavy rule above and below the heading.
Immediately below shall be placed the words 'type of election, (date of
election)' and the name of the county and state in which the election is held."
A.R.S. § 16-502(A) (emphasis added); see also A.R.S. § 19-123(A)(7)
(requiring a notice to be placed "[i]mmediately below the legislative council
analysis"); A.R.S. § 19-124(D) (providing that initiative arguments "shall be
included in the publicity pamphlet immediately following the measure or
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amendment to which they refer" and that affirmative arguments "shall be
placed first in order"); A.R.S. § 19-125(D)-(F) (requiring that information
shall be provided on initiative ballots "immediately below" or "immediately
before" other information).
¶26 Though A.R.S. § 19-101 provides a "form" that referendum
petitions shall use, no statutory provision prohibits modifying the "form"
as in §§ 19-112, -204, and -213. Similarly, unlike in A.R.S. §§ 16-502 and 19-
123 to -125, nothing in A.R.S. § 19-101(A) specifies that text or information
must be provided "above," "below," or "immediately below" other text.
Because the legislature did not prohibit modification of the "form" for
referenda, but did so for other election forms, we presume the legislature's
choice is meaningful. See Liebsohn, 254 Ariz. at 5, ¶ 15 ("In short, the
legislature knows how to specify when an address requires a unit number,
and it did not do so in § 19-118(B)(1)."); Riffel, 213 Ariz. at 249-50, ¶ 8. And
because the legislature did not prohibit modification of the "form" or
otherwise specify that information in the form must immediately follow or
precede other information, we cannot conclude that Workers' referendum
petition failed to comply strictly with the statutory requirements. The
reversed order of the "Referendum description" and the "Petition for
Referendum" statement neither alters the petition's prescribed contents nor
negates the presence of all statutory components under A.R.S. § 19-101. See
Jones v. Respect the Will of the People, 254 Ariz. 73, 81, ¶ 29 (App. 2022)
(declining "to conclude that the presence of any surplus information on a
referendum petition automatically negates strict compliance under § 19-
101(A)" as it "does not alter the meaning or cause confusion").
¶27 Developer relies on Riffel to argue that the petition form does
not strictly comply with A.R.S. § 19-101(A). In Riffel, we rejected a
referendum petition that did not include the required description directly
on the signature page of the petition. 213 Ariz. at 250-51, ¶¶ 13-14. Instead
of including that "referendum description directly into the text of
circulating petitions" as required by the statute, the referendum proponents
had stapled a separate page containing the description to the petition form.
Id. at 248, 250-51, ¶¶ 2, 14. We reasoned that the statute was designed to
ensure that petition signers are provided with the required information
directly on the signed petition document so that "circulators cannot abuse
the referendum process by later removing the stapled description and
attaching a different description to the signatures." Id. at 250, ¶¶ 10, 13.
Because the petition did not include all the required information, we found
that it did not strictly comply with A.R.S. § 19-101(A). Id. at 250-51, ¶ 14.
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¶28 But here, the parties do not dispute that Workers included the
required information on the petition form and both the petition and
description appeared on the same page as the signature lines. Because the
petition provided signers all the required information on one page, Riffel
does not support Developer's argument. See Sklar v. Town of Fountain Hills,
220 Ariz. 449, 454, ¶ 17 (App. 2008) ("The purpose of [§ 19-101(A)] is to
ensure that the public has immediate and full disclosure of the exact public
action that may be reversed.").
¶29 Our holding is narrow. When read in context, the word
"form" in A.R.S. § 19-101(A) does not mandate that the "Referendum
Description" must always precede the "Petition for Referendum." Because
Workers' petition includes all the statutorily required components on the
same page, Workers' petition strictly complied with A.R.S. § 19-101(A).
B. Reliance and Constitutional Rights
¶30 Because we determine that Workers' petition strictly
complied with A.R.S. § 19-101(A), we need not address whether Workers
were entitled to rely on the City-provided form under A.R.S. § 19-102.01(B).
Cf. Leibsohn, 254 Ariz. at 9, ¶ 32 (excusing noncompliance with A.R.S. § 19-
118(B)(5) when the Secretary of State's procedures "made it impossible" to
comply). Also, we need not address Workers' constitutional arguments
about using the City's form. See Anderson v. Celebrezze, 460 U.S. 780, 789
(1983); Burdick v. Takushi, 504 U.S. 428, 433-34 (1992) (weighing the burden
imposed on the party seeking to exercise their First Amendment rights
against the state's interest that justifies the burden).
II. Referability
¶31 We reject the City's argument that the Ordinance is not subject
to referendum. We review this matter de novo. See Fritz v. City of Kingman,
191 Ariz. 432, 433, ¶ 6 (1998) (reviewing de novo the trial court's
determination that an ordinance was a legislative act subject to
referendum).
A. Development Agreements
¶32 Both parties spend considerable effort addressing whether
A.R.S. § 9-500.05 categorically subjects development agreements to
referenda. While Workers make a persuasive argument that the legislature
may have intended to subject development agreements to referenda
through the thirty-day effective-date limitation in A.R.S. § 9-500.05(G), the
statutory text does not go so far. And because this Development
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Agreement is referrable under the analysis established in Wennerstrom v.
City of Mesa, 169 Ariz. 485, 489 (1991), we need not decide any broader
questions, see Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 272 (1994) (noting it is
"unwise" to speculate about legislative intent if an issue may be decided on
other grounds).
B. The Legislative-Administrative-Act Distinction
¶33 The City Council authorized the City's mayor to execute the
Development Agreement by ordinance. See Charter of the City of Tempe
art. II, § 2.11 (1968) (listing acts of the City Council that require an
ordinance); see also A.R.S. § 9-500.05(A) (providing that municipalities may
enter development agreements by resolution or ordinance). And so we
must examine the legislative-administrative-act distinction with regard to
the Development Agreement.
¶34 A city council's legislative acts are subject to referenda, but its
administrative acts are not referable. See Ariz. Const. art. 4, pt. 1, § 1(8)
(limiting the referendum power to those matters on which a governmental
body is "empowered by general laws to legislate"); Wennerstrom, 169 Ariz.
at 488-89. Limiting referenda to legislative acts is necessary because
permitting referenda on administrative acts "would hamper the efficient
administration of local governments." Wennerstrom, 169 Ariz. at 488;
Redelsperger, 207 Ariz. at 432, ¶ 9.
¶35 Under Arizona law, "an act that declares a public purpose and
provides for the ways and means of its accomplishment is legislative."
Wennerstrom, 169 Ariz. at 489; Pioneer Trust Co. of Ariz. v. Pima County, 168
Ariz. 61, 65 (1991). Legislative acts are "distinguished" from non-referable
administrative acts "which merely carr[y] out the policy or purpose already
declared by the legislative body." Wennerstrom, 169 Ariz. at 489 (emphasis
omitted) (quoting 5 Eugene McQuillin, The Law of Municipal Corporations
§ 16:53 (3d ed. 1989)). "Under the Wennerstrom analysis, we must consider
whether the action is (1) permanent or temporary, (2) of general or specific
(limited) application, and (3) a matter of policy creation or a form of policy
implementation." Redelsperger, 207 Ariz. at 433, ¶ 15 (citing Wennerstrom,
169 Ariz. at 489).
1. Permanent
¶36 The Development Agreement is permanent in nature.
Wennerstrom, 169 Ariz. at 489 (noting actions related to subjects of a
permanent character are legislative). The City argues that because the
Development Agreement neither "rezone[s]" nor makes "a permanent
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change to the property," the Ordinance is not legislative. But the City's
argument ignores the delegation to the City's Director of Community
Development to approve limited deviations from the Tempe Zoning Code.
Infra ¶ 43.
¶37 In Town of Florence v. Florence Copper Inc., 251 Ariz. 464, 468-
69, ¶¶ 22-23 (App. 2021), we noted development agreements "are the
product of legislative action," that have permanent characteristics, such as
the "burdens and benefits" inuring to "successors in interest and assigns,"
that "cannot be amended or cancelled without mutual consent." Here, the
burdens and benefits of the Development Agreement inure to successors
and assigns, and are enforceable by Developer against the City. See Charter
of the City of Tempe art. II, § 2.11 (1968); Florence Copper Inc., 251 Ariz. at
469, ¶¶ 22-23. Because the Development Agreement provides Developer
certainty, allows Developer to extend the 25-year Master Lease, provides
for deviations from the City's Zoning and Development Code ("ZDC"), and
restricts the property's land use based on its terms, the Development
Agreement is permanent and definite.
2. General Application
¶38 "To constitute legislation, a proposal must enact something; it
must be a 'definite, specific act or resolution.'" Fritz, 191 Ariz. at 434, ¶ 11(citation omitted); see McBride v. Kerby, 32 Ariz. 515, 522 (1927)
("[L]egislatures do not enact general principles or subjects, nor indeed can
they."). For example, adopting "specific ordinances" on "specific locations"
can be legislative rather than administrative when a prior act neither
commands "anything specific," which would require future legislative
decisions to create new policy, nor provides the "ways and means of its own
accomplishment." Fritz, 191 Ariz. at 434-35, ¶¶ 15-16.
¶39 We conclude that adopting the Development Agreement via
the Ordinance was a general legislative act "that declares a public purpose
and provides for the ways and means of its accomplishment." Wennerstrom,
169 Ariz. at 489. The Development Agreement's stated public purpose is to
"improve or enhance the economic welfare of the inhabitants of the City"
and the ways-and-means of carrying out that purpose are identified in the
Ordinance and Development Agreement.
¶40 For example, the Ordinance specifies that (1) the property is
"a master-planned real estate development" to be built in seven phases over
15 years; (2) "Developer intends to purchase the City Property in a phased
manner" and the City Council approves the sale of the property to
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Opinion of the Court
Developer at an appraised value; (3) the "City will grant a Master Lease to
give control to Developer without requirement to sell the property," but
upon improving each parcel Developer "will complete the purchase of that
parcel and receive a [GPLET] Lease" allowing for an eight-year tax
abatement; and (4) Developer will provide public benefits to the City to
include "cash contributions" of $12,680,688 allocating 80% to Tempe
Coalition for Affordable Housing and 20% to the Tempe Transit Fund,
along with cash contributions for a pedestrian bridge, the Tempe Education
Foundations, and enhancements "to increase the public experience."
¶41 The Development Agreement further provides that
"significant benefits" will accrue to the City from the development of the
property, such as "increased tax revenues" and "the creation of jobs in the
City." By approving the Development Agreement, the City Council
mandated that each GPLET lease "must conform to the form" attached to
the Development Agreement and that the "execution of a GPLET Lease is
an administrative action in furtherance of this policy." The Development
Agreement also includes the Master Lease that fills in the ways-and-means
of accomplishing its purpose and can be extended beyond its 25-year term.
¶42 In addition to the GPLET leases, the Development Agreement
includes a "Construction Sales Tax Rebate" clause allowing Developer to
claim a sales tax rebate subject to a "notice of intent" adopted by the City
Council under A.R.S. § 9-500.11. See A.R.S. § 9-500.11(K) ("A city or town
shall adopt a notice of intent to enter into a retail development tax incentive
agreement at least [14] days before approving a retail development tax
incentive agreement."). "A decision by the governing body involving an
expenditure" under A.R.S. § 9-500.11 "shall not be enacted as an emergency
measure and that decision is not effective for at least [30] days after final
approval of the expenditure." A.R.S. § 9-500.11(C); see A.R.S. § 9-
500.11(M)(2) (defining "expenditure" as a rebate and other abatement). Like
A.R.S. § 9-500.05(G), § 9-500.11(C) references A.R.S. § 19-142(B) and
similarly provides a basis for referring a city's decision involving an
expenditure. See A.R.S. § 9-500.11(C).
¶43 As noted above, the Development Agreement also requires a
CDP and a PAD approved by the City. Supra ¶ 2. The CDP and the PAD
determine "the specific uses, densities, features, and other development
matters applicable to the Property." The Development Agreement further
authorizes the City's "Director of Community Development to consent to
any additional request of the Developer for sign approval that meet the
intent of the Project and deviate from the Tempe Zoning Code."
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WORKERS, et al. v. TEMPE, et al.
Opinion of the Court
3. Policy Creation v. Policy Implementation
¶44 We similarly reject the City's argument that its ZDC's mixed-
use-four ("MU-4") zoning designation is the previously declared legislative
policy. While there is overlap between the zoning designation and the
Development Agreement, the latter details extensive tax, expenditure, sale,
and development decisions beyond what is provided in the zoning
designation. Supra ¶¶ 40-43; see Wennerstrom, 169 Ariz. at 489 (noting an
act is not legislative if it "merely carries out the policy or purpose already
declared by the legislative body"). The City asserts that an appraisal of
prior relevant governmental action is crucial in determining whether the
Ordinance merely administers prior legislation or constitutes legislation
itself. To this end, the City argues that its ZDC's MU-4 zoning designation
is the previously declared legislative policy and the Ordinance is the
administrative act carrying out that policy. See Wennerstrom, 169 Ariz. at
489 (noting an act is legislative "if it prescribes a new policy or plan" but is
administrative "if it merely pursues a plan already adopted" (quoting 5
McQuillin, supra, § 16:53)).
¶45 The ZDC's MU-4 zoning designation contemplates future
legislative acts, and the City cites no authority that would prevent the City
Council from enacting such legislation. See Fritz, 191 Ariz. at 434, ¶ 16(noting that the city's general plan "clearly contemplated that future
decisions such as imposing specific uses on specific locations would merely
adhere to the Plan because the Plan itself does not descend to or mandate
such specificity"). Because the MU-4 zoning designation allows for "a range
of development intensities" and the Development Agreement creates the
specific policy for the permanent disposition of the property through
GPLET leases, increased tax revenues for the City, cash contributions for
the public welfare, and job creation, we cannot agree that the ZDC's MU-4
zoning designation is the previously declared legislative policy. See ZDC
§ 3-201(B)(6); Fritz, 191 Ariz. at 434, ¶ 11 (requiring legislative acts to be
definite and specific). Consequently, executing the Development
Agreement through the Ordinance is a matter of policy creation. See
Wennerstrom, 169 Ariz. at 489 (noting policy creation is legislative and
policy implementation is administrative).
¶46 The Ordinance neither identifies the previously declared
policy decision it intends to implement nor suggests that the MU-4 zoning
designation is the policy it intends to carry out. See, e.g., id. at 490 (noting
the bond election was the previously declared legislative decision and the
resolutions improving the city's streets and highways were the
administrative acts). Rather, the City Council provides in the Development
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WORKERS, et al. v. TEMPE, et al.
Opinion of the Court
Agreement that, by its approval, the execution of each GPLET lease "is an
administrative action in furtherance of this policy," that is, the Ordinance
and Development Agreement. (Emphasis added.)
¶47 Though the ZDC's MU-4 zoning designation informs
residents of the land uses within the property, it does nothing to inform
them of future policies within the Development Agreement. See ZDC §§ 2-
103, 3-202. For example, the Development Agreement includes (1)
Developer's tax incentives, leases, agreements, and cash contributions; (2)
the property's phased sale, disposition, and zoning deviations; and (3) other
requirements related to the CDP and PAD—none of which were included
in the MU-4 designation. See ZDC §§ 2-103, 3-201(B)(6). Further, though
the MU-4 designation also requires a PAD overlay, the PAD in the
Development Agreement is intended to be specific to the property. See ZDC
§ 5-401 ("The PAD overlay district may be tailored to meet the specific
development representations of an application. Hence one (1) PAD overlay
may vary considerably from another overlay."). Thus, the Development
Agreement both informs residents of its policies and contemplates future
legislation.
¶48 Accordingly, we determine that together the Ordinance and
Development Agreement are legislative, and thus, referable.
CONCLUSION
¶49 For the foregoing reasons, we affirm the superior court's
ruling in part as it correctly determined that the Ordinance was referable.
We reverse in part because the referendum petition used by Workers
strictly complied with all the statutorily required information.
AMY M. WOOD • Clerk of the Court
FILED: AA
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