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William McLean, Esq.
Pinal County Deputy
Attorney
P.O. Box 887
Florence, Arizona 85232
Re: PZ-006-01 and PZ-PD-006-01,
Anam, Inc.
Dear Mr. McLean,
This office represents
Pinal Citizens for Sustainable Communities, Inc., the sponsor of the successful
referendum petition against the SaddleBrooke II rezoning passed recently
by the Board of Supervisors (the "Board") and the opponents of the Anam,
Inc. request for rezoning and planned area development ("PAD") approved
by the Board on Wednesday, May 16, 2001. We believe the rezoning and PAD
approvals violate both the Open Meeting Law and A.R.S. §11-829 as
more specifically detailed below.
Open Meeting Law
Violation.
During the public hearing
on the rezoning request, the Board unexpectedly went into executive session.
As you are aware, executive sessions are not favored by Arizona public
policy except for narrow statutorily approved reasons. Moreover, public
notice of an executive session is required prior to a public body going
into executive session.
A.R.S. §38-431.09
declares the public policy of the state as follows:
It is the public
policy of this state that meetings of public bodies be conducted openly
and that notices and agendas be provided for such meetings which contain
such information as is reasonably necessary to inform the public of the
matters to be discussed or decided. Toward this end, any person or entity
charged with the interpretations of this article shall construe any provision
of this article in favor of open and public meetings.
Before an executive session
may be called, the agenda for the public body must specifically state the
purpose of the executive session as well as the statutory exception permitting
its use. A.R.S. §38-431.02(I) provides that the content of the public
notice shall comply with the following:
Notwithstanding the
other provisions of this section, notice of executive sessions shall be
required to include only a general description of the matters to be considered.
Such
agenda shall provide more than just a recital of the statutory provisions
authorizing the executive session, but need not contain information
that would defeat the purpose of the executive session, compromise the
legitimate privacy interest of a public officer, appointee or employee,
or compromise the attorney-client privilege.
The public agenda for
the Board’s May 16, 2001 meeting fails to contain a notice conforming to
the requirements of A.R.S. §38-431.02(I). The only reference to an
executive session on the agenda is the following statement on the last
page of the agenda at the bottom of the page: "The Board may go into executive
session for purposes of obtaining legal advice from the County’s attorney(s)
on any of the above agenda items pursuant to A.R.S. §38-431.03(A)(3)"
Effectively, this statement
is an attempt to utilize the exemption in A.R.S. §38-431.03(A)(3)
to obtain a "blanket" exemption for any matter on which the Board feels
it needs to question its attorneys relating to any item on the agenda.
Such a blanket notice is ineffective because it fails to contain a general
description of the actual subject to be discussed. As stated in A.R.S.
§38-431.02(I), the notice must be more than a recitation of the statutory
exemption. In order to satisfy the public notice requirements, the notice
must state the subject matter about which the Board seeks legal
advice from its attorneys, e.g., whether a particular matter is constitutional,
authorized, subject to claim, etc. Pinal County’s blanket statement contains
only the reference to the statutory exemption without reference to the
actual matter to be discussed and therefore fails to satisfy the statutory
requirements.
Arizona courts have
interpreted the exceptions to the open meeting law narrowly. "Exceptions
to the open meeting law ‘should be narrowly construed in favor of requiring
public meetings.’"
Johnson v. Tempe Elementary School District,
343 Ariz.Adv.Rep. 29 (App. 2001) quoting Fisher v. Maricopa County Stadium
District, 185 Ariz. 116, 912 P.2d 1345 (App. 1995) rev. denied 1996.
Moreover, once an allegation is made that a violation of the open meeting
law has occurred because of an illegal executive session, the burden shifts
to the public body to prove that an affirmative defense or exemption permits
the closed session. Fisher,
Id., 185 Ariz. at 122.
The clear public policy
enunciated in the statute, the express provisions in the notice requirements
for executive sessions and the narrow construction of the exemptions indicate
strongly that a public body must do more than just provide a "general"
notice in all its agendas that the public body may go into executive on
any agenda item any time it feels it wants to ask its attorney a question
outside of the public. Such a procedure circumvents the clear and expressly
stated purposes and requirements of the statute.
As a result of the
Board’s illegal executive session, the action to approve the Anam rezoning
and PAD is null and void. Action taken by a public body at a meeting held
in violation of the open meeting is null and void. A.R.S. §38-431.05(A).
This provision was recently reaffirmed in the Johnson case where
the court declared that an appeal of a superior court decision was void
because the decision to appeal was made in executive session in violation
of the open meeting law.
Based upon the foregoing,
we believe the Board’s vote to approve the Anam rezoning and PAD was taken
in violation of the open meeting law and is therefore null and void.
Failure to Adopt
Comprehensive Plan
Even assuming no violation
of the open meeting law, the action by the Board approving the Anam rezoning
and PAD is null and void because the Board lacked the statutory authority
to approve a rezoning and PAD for an area not encompassed by a comprehensive
or area plan pursuant to A.R.S. §11-821. Each county in Arizona must
adopt a comprehensive plan to provide policies for long term development
within the county. To date, Pinal County has failed to adopt a county comprehensive
plan although it has adopted several area plans covering specifically defined
geographic areas of the County. Significantly, however, no area plan covers
the geographic area encompassed by the Anam rezoning and PAD.
A.R.S. §11-821(A)
provides for the adoption of a county comprehensive plan:
A. The commission
shall formulate and the board of supervisors shall adopt or readopt a comprehensive
long-term county plan for the development of the area of jurisdiction in
the manner prescribed by this article. The planning commission shall
coordinate the production of the county plan with the creation of the conceptual
state land use plans under title 37, chapter 2, article 5.1. The county
plan, with the accompanying maps, plats, charts and descriptive matter,
shall show the commission's recommendations for the development of the
area of jurisdiction together with the general zoning regulations. The
county plan shall be made with the general purpose of guiding and accomplishing
a coordinated, adjusted and harmonious development of the area of jurisdiction.
In the preparation of the county plan the commission shall make surveys
and studies of the present conditions and prospective future growth of
the area of the jurisdiction. The planning commission shall cooperate with
the state land department regarding integrating the conceptual state land
use plans into the county plan. The county plan shall include provisions
that identify changes or modifications that constitute amendments and major
amendments to the plan. Emphasis added.
Without a comprehensive
or area plan in place, the Board may not approve a rezoning for property
located outside of such plan. Conformance to the county’s comprehensive
plan is a prerequisite for approval of a rezoning.
A.R.S. §11-829(A)
provides as follows:
A. A property owner
or authorized agent of a property owner desiring an amendment or change
in the zoning ordinance changing the zoning district boundaries within
an area previously zoned shall file an application for the amendment or
change. All zoning and rezoning ordinances, regulations or specific
plans adopted under this article shall be consistent with and conform to
the adopted county plan. In the case of uncertainty in constructing
or applying the conformity of any part of a proposed rezoning ordinance
to the adopted county plan, the ordinance shall be construed in a manner
that will further the implementation of, and not be contrary to, the goals,
policies and applicable elements of the county plan. A rezoning ordinance
conforms with the county plan if it proposes land uses, densities or intensities
within the range of identified uses, densities and intensities of the county
plan. Emphasis added.
The lack of a comprehensive
or area plan for the Anam property precludes the Board from rezoning the
property because the Board lacks statutory authority to take action on
the property. The county is a political subdivision of the State of Arizona
and may adopt ordinances only on matters over which they have been delegated
authority.
Rotter v. Coconino County, 169 Ariz. 269, 818 P.2d 704
(1991) (An ordinance is invalid if it conflicts with the state statute
delegating power to act to the local authority.); Hart v Bayless Investment
& Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959). Under the county’s
zoning authority, a county may rezone land but only if such rezoning conforms
to a previously adopted comprehensive plan. The statute does not authorize
the county to rezone land in the absence of a comprehensive plan.
Therefore, before the
County is authorized to rezone any land in Pinal County not covered by
an area plan, it must adopt a comprehensive plan. That is the express purpose
of the statute and any action taken in violation of the statute is null
and void. The Anam rezoning is consequently null and void because the area
is not covered by an area plan or comprehensive plan.
Based upon the foregoing,
we believe the actions of the Board violate both the Open Meeting Law and
the zoning authority granted to the County. We request that the Board rescind
immediately the rezoning and PAD approval for the Anam property.
Sincerely,
Anne C. Graham-Bergin
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