When Arizona achieved statehood 100 years ago, voters were given three progressive constitutional powers: the direct initiative of legislation; the recall of elected officials; and the referendum to void legislation.

In Tucson, the last of those is now in serious jeopardy of, as they say in baseball, getting struck out. The original Arizona Constitution made it fairly simple for city voters to use their referendum powers. It stated of either referring adopted legislation to the voters for a final decision, or having it voided before that step was taken: “… 10 percent of the electors may propose the referendum on legislation enacted within and by such city.”

In the last century, onerous requirements have been placed on the petition-signature-gathering process by the courts, meaning the potential use of the referendum is severely restricted. Strike one!

In Tucson, the City Council on Feb. 28 adopted an “overlay zone” near the University of Arizona. This area now has a variety of commercial, residential and other uses in mostly single- and two-story buildings, some of which are listed on the National Register of Historic Places. The overlay zone would allow high-density, multistory redevelopment up to almost 160 feet in height. Disappointed by this move, many nearby residents began a public effort to either refer the overlay zone to the voters, or have the City Council rescind it.

City officials supplied referendum organizers with a petition for signatures. These officials work for—and some are appointed by—the City Council. Petition-drive organizers had 30 days to collect the valid signatures of approximately 8,500 registered Tucson voters.

After about 20 days had passed—and more than 6,000 signatures had been collected on the original petitions—city officials decided the form they had supplied was legally insufficient. The petition-passers, many of whom live in the West University Neighborhood that encompasses the overlay zone, then used another petition to collect almost 6,000 additional signatures.

When all 12,000 signatures were submitted to City Hall at the end of March, municipal officials, not surprisingly, almost instantly rejected them all, stating there weren’t enough valid signatures to refer the overlay zone to voters. Strike two!

Two petition signers—David Boston and I—then filed a lawsuit in an attempt to require the city to accept all of the petition signatures and determine if they are sufficient to refer the overlay zone to voters. It is truly a legal case of two Davids vs. the Goliath of City Hall.

Some people argue the overlay zone is needed to create a high-density, big-city area in Tucson while also providing potential riders for the modern streetcar. Others say this type of development should go downtown, and that the overlay will result in the demolition of historic structures.

That argument is completely irrelevant to the lawsuit. Instead, what is essential is protecting the democratic rights of voters. Many signatures, including my own, got tossed aside because they were on the first petition.

It is vital that the voters of Tucson be the final decider on legislation, just as the 1912 state Constitution intended. If City Hall’s position prevails—that even though they supplied the legally insufficient petition, the signatures on it shouldn’t be counted—then we’ve all lost a basic right.

I hope the Superior Court orders the city to determine if there are enough valid signatures on both petitions. It was City Hall’s mistake, after all, by providing the wrong form.

If the lawsuit doesn’t succeed, it will send a chilling message to Tucson voters: You can’t fight City Hall—and if you think about even trying, they can mislead you. Strike three!

(Note: In the original version of this piece, Dave Devine incorrectly stated: “City officials unbelievably informed the petition organizers to not go back to the people who had signed the initial, and now invalid, petition.” Devine received incorrect information from some of the petition-gatherers.)

This article appears in Apr 19-25, 2012.

8 replies on “Guest Commentary”

  2. “Overlay Towers” is probably going to happen no matter what, darn it, cuz that’s where the money is. Also it does seem the clerk’s office was incompetent (or very clever) in dispensing petition forms. Got to worry about where all those tenants will park their cars — the streetcar doesn’t solve that problem at all — and parking for UA employees is already miserable.

  3. whether I agree with the premise that we should put the kids “not in my backyard” it is disheartening to think that the city won’t let it’s constituents voices be heard. The funny thing is if put to a vote the overlay zones would most likely pass as it is a small minority that live in the neighborhoods that feel they are affected. Old buildings will have to be torn down to have “progress” regardless of whether it’s down town or surrounding the U o A. Guess what them’s the brakes of living near the precious UA.

  4. Detrimental Assistance as public policy. Should there be a sign posted at the City Clerk’s office Let the Citizens Beware ? Who pays their salaries ? This is not about NIMBY, not about the Overlay, not about students or parking, it is about citizens being denied public process and their civil rights. The petitions should be counted and signatures validated. If there are sufficient signatures, gathered from ALL over town, the matter should be scheduled for a vote to reveal the true nature of this fascinating story. For which there has been a media blackout. Thank you Tucson Weekly.

  5. Mr. Devine:

    There are two important issues here – the overlay zone controversy, and the possible abrogation of constitutional rights. You’ve left me confused about both of them. Consider writing two essays – one that explains both sides of the overlay issue and the other that describes what happened with the petition drive. What’s wrong with changing the zoning status of the areas near the University? Why would this hurt Tucson? What should be done instead to advance Tucson’s interests? As for the referendum, I would like to know whether this is a referendum and not an initiative. How come you aren’t getting signatures on an initiative that would point Tucson in the direction you think it should go? If you’re gathering signatures anyway you might as well try to create something you want rather than just stopping something you don’t want. What is the cities legal position on the legality of the process you attempted? What exactly are they saying you did incorrectly?

    I would like to know more about these issues, and I’m sure others would too. I hope you have the time to explain it.

    Vic Napier

  6. TO THE TUCSON COMMUNITY,
    Water Main Break

    There are a great deal of political issues in Tucson, AZ .However as the pumps keep pumping we must stay focused on agenda, My agenda is on the water quality since Tucson Southside sits on a super fund site, for those of you who do not know what that is, I will explain it to you in simple words, The South Side Tucson International Airport area has been under Construction since the 1982 T.C.E. a contamination afflicting thousands and killing many of our loved ones this legal issue concluded in a Settlement Agreement Plaintiffs of 1,600 home owners in the community against the City of Tucson a municipal corporation and Tucson Airport Authority a non profit corporation, on 3/16/2015 after a study I have worked on for the past year putting in 19 hours a day and no weekends off I became more determined to keep the study and attend UCAB meetings at the El Pueblo neighborhood center every 2 months throughout the year. I had no clue what I was about to hear in a meeting room full of the responsible people who caused this horrific nightmare the Tucson International Airport , Superfund Site , Air Force Plant 44 Raytheon, The site 2002, also detected 1,4-dioxane, Hexavalent Chromium, including T.C.E. Trichloroethylene a manmade solvent known to cause cancer and neurological damage , many who have not done the study would never know how serious this issue is, recently I have been assisted by Environmental Justice Mr. Stephen Lester, who I have the pleasure meeting and working closely with, in Falls Church, VA. I will be at the Valencia Library the so Mothers Safe Water Force will hope to see you all come out and empower the community since it is there Tax Payer dollars, that are paying the clean up cost as well punitive damages with our children, grand children, and our next generation,
    The potential “AT RISK ” population in memory of my daughter who died of many cancers due to these senseless acts. including Lupus and Kidney failure My name is Linda I will be starting the introduction at 1:00pm on Saturday March 21, 2015 the 8th year anniversary of my daughters passing .

    Sincerely
    Linda Robles
    mothers safe water force
    Valencia Library
    202 W. Valencia Rd.
    (520) 294 -5390

  7. I am currently advised to form a group of Tucson Southside Community members and residents to demand Air Force Plant 44 Raytheon, To pay more money to victims of pollutants/contaminants released in the Tucson International Airport Area since 1981. including trichloroethylene (“TCE”) in 2004 a release of 1,4- Dioxin and Chromium 6, including Chloroform, Benzene was detected in the Water Supply including City of Tucson Water Supply. In 2007, an Administrative Order was entered and Environmental Protection Agency with the Order Compels the Respondent AFP44 to conduct measures to abate the threat to public health presented by the past and present contaminations from the Air Force Plant 44 , Located in Tucson Arizona , The Administration Order performing the response action describe as the scope of work (SOW), incorporated in the appendix A. in the Order. since prior activities and projects to cleanup these pollutants has failed and have not been containable, an Advanced Oxidation Process treatment system to treat TCE , DX currently April 2, 2015. Is the milestone date on the Advance Oxidation Treatment update. It really is a disappointment to me that the community gave up and I understand I get it I to gave up when my daughter passed away in 2007. from Lupus and Permanent Kidney damage she was only 20. and when my youngest was told by her Renal Doctor she was at her end stage and she would die in three Mouths , Thank the one who was and is to come the one who lives in us than he who is of the world the man up stairs she is in remission since her chemo treatment in 2014, I to gave up when my grand daughter was diagnosed with Nephrotic Syndrome with no chance of change she is only 6 years old, It just really hurts that Tucson Arizona hates our children and we let them we even assist them ” HOW” by sitting around waiting for the next door neighbor to do something about it. If you have a comment please by all means share I have been working even 14-15 hours a day for a year now it kept me motivated to keep on pressing every time I said JESUS especially when I had to read my daughters Autopsy Report I was not to smart academically I thought unremarkable meant she was healthy and had an unremarkable heart , till I read the definition of the word on the medical encyclopedia. my daughter heart exploited and she died at home it was the most traumatic thing I had ever encountered soon after her death I forgot how to read I was dead in spirit until I hit bottom and a wonderful man they call GOD redeemed me and turned my ashes into beauty, it is no lie when you take it to the source he restores you and no kidding he is truly the Son of God. and he lives and raises us up from the dead just as he did Lazarus I pray that I will not ever deny him three times despite how hard the storms are and how big the giant is I hope I do not leave my home without the armor of God, and the extra stones in my pocket. this is not a comment this is an inspirational true story and I hope if you just happen to read this that you will get out of the comfort zone and get involved in making a difference in this thriving community. I am hopeful GOD will draw me to the group he has for me and my family as well as the afflicted children.

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