A new state law making it harder for neighbors to force a βsupermajorityβ vote on rezonings will make it easier for the Tucson City Council to approve a proposed Fryβs supermarket on the east side.
The law, which overwhelmingly passed the Legislature last spring, adds several procedural requirements for neighbors wishing to formally protest rezoning proposed to city and town councils. It amounts to a sweeping revision of the rules for gathering protest signatures.
As such, it is βone of the most impactful changes in land-use law in at least a decade,β said Jordan Rose, president of the Rose Law Group, an influential Scotts- dale real estate and business law firm.
Until the law took effect in August, opponents of the Fryβs had rounded up enough protest signatures to force the βsupermajorityβ vote requirement for a zoning change. That would have required six council members to approve the rezoning.
Under the new law, four votes will be enough to approve the zoning change, said John Beall, a Tucson city planning official. It would authorize construction of a 99,918-square foot supermarket, two much smaller stores and a service station with nine gas pumps.
The council is scheduled to vote on the proposed commercial zoning Tuesday night, following a neighborhood debate thatβs lasted two years. The Fryβs would be built less than 2 miles from Saguaro National Park-East, whose officials oppose it.
Linda Schaub, a neighborhood activist fighting the Fryβs, said she and her allies felt βkicked in the gutβ and βblindsidedβ when they learned of the new law in recent months.
Schaub and Rose, a supporter of the bill, framed it similarly β although from opposite perspectives.
βThis bill was specifically structured for developers,β said Schaub, team leader for the Save Houghton East Coalition. βI feel like they stole our supermajority from us.β
Real estate attorney Rose said Friday that the law is βvery pro-business, pro-growth, pro-economic development, pro-private property rights for Arizona.
βI think the law renewed Arizonaβs commitment to the respect of private property rights,β said Rose, whose firm represents developers, homebuilders and βothers who want to do economic development,β she said.
βIt will have a tremendous effect on the dynamics of a successful project in many cases.β
Under the previous law, if opponents of a rezoning rounded up protesting signatures from owners of 20 percent of adjacent properties on any one side of the project site, the supermajority vote was needed. That would require approvals from 75 percent of council members.
The new law says:
- Opponents must get signatures from 20 percent of property owners on all sides of a project site.
- Opponents must also garner signatures from owners of 20 percent of all those adjoining properties.
- For the first time, land included in the potential protest area now includes the property that is proposed for rezoning, along with any public right-of-way within 150 feet of that same property.
- In the past, the number of votes needed to achieve a supermajority on a city council was rounded up, toward the total number of council members. Now, it will be rounded up or down toward the nearest number.
For a seven-member council such as Tucsonβs, a 75 percent requirement used to mean six votes were needed to be a supermajority. Now, five votes will be needed.
Under the new requirements, if the property owner seeking the rezoning owns more than 80 percent of the land used to calculate protests, that alone would make a supermajority vote impossible.
The protesters against the Fryβs proposal got 45.5 percent of the total number of surrounding lots, but only 8.7 percent of all the total area, said Beall.
Keri Silvyn, a longtime Tucson land-use attorney representing Fryβs in this case, said she was pleased that the law was clarified to match city protest requirements with county protest requirements. But she and others representing Fryβs in this issue didnβt push the bill, they said.
βIt was honestly a surprise to all of us,β said Linda Morales, CEO of the Planning Center, a Tucson consulting firm also representing Fryβs in this case.
Added Silvyn: βThere have been attempts to do this for 20 years. There have been many, many attempts.β
One of the law's co-sponsors, Reps. Bob Thorpe of Flagstaff, said, he was asked to "run" this bill by the City of Sedona, to help resolve zoning problems that the town had experienced.
"Throughout the process, both Sedona and the (Arizona) League of Cities and Towns were asked to review and approve the bill language and any amendments to the bill. The problem that we were trying to solve was to ensure that citizens living within Arizona cities and towns had the same requirements for opposing a zoning change as citizens living within Arizona counties, in other words, we wanted the uniform application of the law throughout Arizona."
The other co-sponsor, Brenda Barton of Payson, didnβt return a phone call seeking comment on the bill.
Overall, these changes remind Marana-area activist Barbara Rose of recently passed legislation tightening requirements for citizens to force statewide referendum votes by gathering petition signatures. Rose unsuccessfully fought the May 2017 Lazy K Bar Ranch rezoning in the Tucson Mountain foothills, where the supermajority requirement was first in place but later removed for other reasons before the new law took effect.
The changes βlimit local control and the democratic process,β she said. βThe Arizona Legislature should work for all of us, not just corporations and industries who care less about longterm sustainability and more about fast money.β
Disagreeing, attorney Jordan Rose (no relation to Barbara Rose) said the new law still allows for community control, since local city and town councils must approve the rezoning.
βThis law just allows private property owners to not be held hostage in certain situations and allows elected officials who are the voice of those residents to make those decisions,β she said.
The billβs final passage came in the House on May 8, two days before the 2017 legislative session ended. Gov. Doug Ducey signed it into law the same day. The House OKβd it 59-0 after the Senate approved it 29-1 in March.
The Home Builders Association of Central Arizona endorsed the bill, which clarifies the previous law and represents a legitimate test for determining supermajority requirements, said group Vice President Spencer Kamps.
The League of Cities and Towns supported an early version of the bill as a way to clarify state law and, as Thorpe said, to insure that cities and counties had the same rules in such mattres, said Tom Belshe, the league's deputy director. It has since backed away from the broader measure that was ultimately enacted.
The league doesnβt support the provision putting the property proposed for rezoning in the potential protest area, said Belshe. The league will try to remove them, he said.
βWe were not trying to make it harder to stop rezonings,β Belshe said. βIt was our opinion that 20 percent of property owners meant 20 percent of all owners affected. We wanted to make the change so it was fairer, to give all property owners around it a chance to say yes or no.β
In an emailed statement, Thorpe said that in the past, a very small percentage of property owners adjacent to a property with a proposed zoning change -- 20% of landowners on only 'one side' of the property -- were required in a petition to block a change. "
After HB2116 was enacted, again a small percentage of property owners can still petition to block a zoning change, however now 20% of the property owners on all 4 sides of the property are required.
"So for example, if there were 20 property owners (5 per side) adjacent to a proposed zoning change, prior to HB2116, only 1 property owner out of the 20 was required for a petition to block the change. In this same example, after HB2116 was enacted, it would now take 4 property owners out of the 20 for a petition to block the change. The requirements for cities and towns is now consistent with those for the counties, and is far from being either unreasonable or unattainable," said Thorpe, whose statement didn't discuss the later amendments adding additional requirements for a supermajority vote.
Schaub, the Fryβs opponent, said she suspects the new law helped change the timing of the final vote on the rezoning.
A city zoning examiner recommended approval of the rezoning in May. Normally, that would have meant a council vote within a relatively short time, before the law state took effect in August.
But Fryβs requested a delay in the council hearing until September, citing scheduling issues. It denied Schaubβs allegations that the new law had anything to do with the request for a delay. βThere was a lot of interest in the project, and having the council hearing over the summer wasnβt a good idea,β Silvyn said.
The council hearing was ultimately delayed until this week, for unrelated reasons.
