BY FAX

William H. McLean, Esq.
Pinal County Deputy Attorney
P.O. Box 887
Florence, Arizona 85232

Re: PZ-006-01 and PZ-PD-006-01, Anam, Inc.
      Referendum Petition 

Dear Mr. McLean,

As you know, this office represents Pinal Citizens for Sustainable Communities, Inc. ("Pinal Citizens"), the sponsor of Referendum Petition No. 110600-REF-2 against the rezoning and PAD approvals for the Anam, Inc. property. Thank you for providing the Snell & Wilmer letter of July 5, 2001 to me and soliciting our response. I will address the two issues of whether the petitions were timely filed and whether they contained the proper materials in this letter.

1. The Petitions Were Timely Filed.

A.R.S. §19-142(C) and (D) provide as follows:

These statutes mandate the following:

1. The city/town/county elections officer is responsible for determining and providing the correct materials for circulation to the petition proponent;

2. When an application for petition serial number is filed, the thirty day period in which to circulate petitions does not begin to run until the materials for circulation are available from the city/town/county elections officer if the materials are not available the same business day the application is filed;

3. In the case of a petition against a rezoning, the materials for circulation are the ordinance or approved minutes, whichever is first available from the city/town/county elections officer. The thirty day period in which to circulate petitions does not begin to run until the day the city/town/county elections officer can provide either the ordinance or minutes to the petition proponent.

However, on May 16, 2001, the materials for circulation, according to Mr. Gilbert Hoyos, the Elections Director, were not available and he could not provide them to Pinal Citizens that same day. Therefore, pursuant to A.R.S. §19-142(D), the thirty day period in which to circulate petitions did not begin to run on May 16, 2001. 

On May 16, 2001, Mr. Hoyos recognized the following:

1. He understood it was his responsibility to determine and provide the correct materials to Pinal Citizens for circulation; and

2. He understood that the thirty time period in which the petitions were to be circulated did not begin to run because he did could not provide the materials for circulation to Pinal Citizens and he did not insert the due date on the Application for Petition Serial Number.

Another week passed and Ms. Kazda contacted Mr. Hoyos on May 30, 2001 to inquire about the materials for circulation. Mr. Hoyos advised her that the materials for circulation were not available. Mr. Hoyos had three conversations with Ms. Kazda that day and advised her that his office was on top of the matter, that he was communicating closely with the County Attorney’s office about the issue but that the materials were still not available. Therefore, as of May 30, 2001, the 30 day time for circulating the petition had not begun to run because Mr. Hoyos could not provide the materials for circulation to Pinal Citizens.

The next day, May 31, 2001, Ms. Kazda and her husband went directly to Mr. Hoyos’ office in the morning to determine if the materials for circulation were available. After several hours of waiting in the office while Mr. Hoyos communicated with various departments, including the County Attorney’s office, he provided to them that afternoon with copies of the Ordinances adopted for rezoning and PAD as well as the portions of the approved Board of Supervisors’ minutes which related to the same subjects. On May 31, 2001, in their presence, Mr. Hoyos inserted the words "July 2, 2001 gh" into the Application for Petition Serial Number form in the space indicating the due date for the petitions. Mr. Hoyos was asked repeatedly by Ms. Kazda and her husband if the materials he provided were the complete materials for circulation. Mr. Hoyos stated that he believed the materials were correct and even had them wait until he confirmed with the County Attorney’s office that the materials were correct. When asked to confirm in writing that the materials he supplied them that day were the correct materials, he agreed to do so. On June 1, 2001, Ms. Kazda received the attached Memo from Becky Canalez confirming her discussion with the County Attorney’s office that the materials provided to Pinal Citizens on May 31, 2001 were the correct materials for circulation.

The above chronology establishes that the materials for circulation did not first become available from the Pinal County Director of Elections until May 31, 2001. Therefore, pursuant to A.R.S. §19-142(D), the thirty day time period in which to circulate the petition did not start until May 31, 2001. It did not start May 16, 2001. The Director of Elections has no discretion to reject the petitions submitted July 2, 2001 because May 31, 2001 was the day the materials for circulation first became available and July 2, 2001 is the day the Director of Elections appropriately established was the due date for the petition.

Pioneer Trust Co. of Arizona v. Pima County, 168 Ariz. 61, 67-68, 811 P.2d 22, 28-29 (1991) confirms the thirty day period in which to circulate the petition does not start until a full and correct copy of the ordinance/resolution/minutes is available to the public through the appropriate governmental official, regardless of when an individual or organization applies for an official petition number. A.R.S. §19-142(C) was reaffirmed by the legislature in 1999 when A.R.S. §19-142(D) was adopted. Hause v. City of Tucson, 199 Ariz. 499, 19 P.3d 640 (App. 2001).

Furthermore, Pinal County is now estopped from denying the due date for the petitions. The Arizona Supreme Court decision in Valencia Energy v. Arizona Dep't of Revenue, 191 Ariz. 565, 959 P.2d 1256 (1998), provides the analytical framework. The case begins with a reminder that, in Freightways v. Arizona Corp. Comm'n, 129 Ariz. 245, 248, 630 P.2d 541, 544 (1981), the Arizona Supreme Court announced its disapproval of the "no estoppel against the sovereign" rule. Id. at § 11. The court reiterated the three elements of equitable estoppel: "(1) the party to be estopped commits acts inconsistent with a position it later adopts; (2) reliance by the other party; and (3) injury to the latter resulting from the former's repudiation of its prior conduct." Id. at § 35.

In Pingitore v. Town of Cave Creek, 194 Ariz. 261, 981 P.2d 129 (App. 1998) rev. den’d., the Court of Appeals further explored the elements of governmental estoppel. As to the first element, the court stated: "the action claimed to be relied upon by the party asserting estoppel must have been taken by or have had the approval of one authorized to act in that circumstance", 194 Ariz. at 265. In this case, Mr. Hoyos, the Pinal County Director of Elections was the sole person responsible for determining (1) the materials to be circulated and (2) the date the petitions were due. In fact, Mr. Hoyos personally delivered the materials for circulation on May 31, 2001 and personally inserted the day of July 2, 2001 into the Application for Petition Serial Number. 

The second element of reliance is established because Pinal Citizens was required to obtain the materials for circulation only from Mr. Hoyos. As discussed above, A.R.S. §19-142(C) provides that it is the duty of the city/town/county official to provide the materials for circulation. They do not come from any other source and petition proponents are not obligated to seek the materials from any other source. The reason is obvious. To require petition proponents to seek out the materials from various possible sources within the city/town/county government places an unreasonable burden on the right to referendum. The fact that the ordinances may have been available on May 16, 2001 from other sources within Pinal County is irrelevant because the only authorized source of delivery of these materials to Pinal Citizens was Mr. Hoyos and he stated he did not have the materials on May 16, 2001 or anytime up to May 31, 2001.

Furthermore, Ms. Kazda’s Affidavit demonstrates that Mr. Hoyos acted with full authority and with full knowledge of the County Attorney’s office in determining and providing the materials for circulation. Mr. Hoyos acted in supplying the materials only after full consultation with the County Attorney’s office. The memo of May 31, 2001 confirms this fact conclusively. Pinal Citizens had every reason therefore to rely upon Mr. Hoyos’ actions when he provided them with the materials for circulation and when he inserted the due date for the petitions.

The third element is obvious. If the petitions are rejected on the basis that now Pinal County is changing its mind and states that the due that it wrote on the Application for Petition Serial Number is no longer correct, the constitutional rights of the thousands of persons signing the petition will be denied. Referendum rights are fundamental rights guaranteed to every citizen in Arizona pursuant to the Arizona Constitution. They may not be denied based upon an arbitrary decision now to change the due date for the petitions.

2. The Petitions Contain the Appropriate Materials.

A.R.S. §19-121(E) sets forth the requirements for the attachments to the petition by providing as follows:

1. A copy of the adopted ordinance for both the rezoning and PAD approvals;

2. A legal description of the property which was the subject of the rezoning and PAD approvals;

3. The stipulations approved by the Board of Supervisors relating to the property; and

4. The portions of the Board of Supervisors’ minutes reflecting their approval of the rezoning and PAD.

Snell & Wilmer’s argument is similar to the argument raised by opponents to a referendum petition in Sherrill v. City of Peoria, 189 Ariz. 537, 943 P.2d 1215 (1997). In Sherrill, the opponents argued that in addition to the rezoning ordinance, the referendum proponents should have also attached some additional development "guidelines" because without such material the ordinance was incomplete.

In rejecting this argument, the Arizona Supreme Court stated as follows:

A copy of the PAD was not part of the ordinance adopted. It was not required to be attached to the petitions. More importantly, the PAD was not given to Pinal Citizens to circulate. As discussed earlier, A.R.S. §19-142(C) requires the County Director of Elections to determine and provide the materials for circulation to the proponents of a referendum petition. In this case, Ms. Kazda specifically asked Mr. Hoyos, the County Director of Elections, if the materials he provided to them represented the entire materials for circulation. Mr. Hoyos specifically advised that these materials were correct, after further discussing the issue with the County Attorney’s office. His office further documented this fact through the office Memo dated May 31, 2001. 

The Arizona Supreme Court rejected a similar attempt in Sherrill to require petition circulators to guess at the appropriate materials to circulate:

The Director of Elections has no discretion to reject the petition on the basis that the appropriate materials were not attached. As discussed above, the materials he provided to Pinal Citizens were attached to the petitions. Nothing more was required to be attached.

The objections raised by the property owner are not well founded. The rights of the thousands of citizens who signed these petitions should not be sacrificed because the property owner urges the County to change its mind and declare that the due date for the petitions was incorrect. Should the County reject the petitions because of these reasons, Pinal Citizens will institute a mandamus action to compel the Director of Elections to perform his statutory duty.

Sincerely,
 
 
 
 

Anne C. Graham-Bergin

Enclosures