Zoning Out

The supes welcome a lawsuit against them as their last chance to fight the state law against downzoning.

REJECTED BY A Superior Court, rebuffed in the Court of Appeals and ignored by the Arizona Supreme Court, the Pima County Board of Supervisors now hopes to reverse state law prohibiting downzoning through its defense of a lawsuit filed by a Tucson businessman whose Gates Pass-area property was pummeled by the supervisors in a succession of votes beginning in July 1999.

Supervisors and other county officials are happy that Emmett "Bucky" McLaughlin, a real estate broker and businessman, filed a suit in July challenging the Board of Supervisors' actions to strip the zoning on one parcel, deny a conditional use permit for a charter school on another, and block development of a small resort on a third parcel.

Without McLaughlin's suit, filed in Pima County Superior Court, the Board of Supervisors and its eager lawyers had nowhere left to go. Pima County had been joined by Coconino and Mohave counties in a lawsuit that sought to eliminate a 1998 state law forbidding county actions to downzone property without the owner's consent, but that suit was snubbed at every level.

The state Supreme Court last month declined to hear an appeal by Pima County and its lawsuit partners. That let stand the previous decision by the Arizona Court of Appeals that the counties had no "real dispute ripe for resolution." Similarly, Judge William J. Schafer III of Maricopa County Superior Court refused to grant Pima and the other counties a declaratory judgment voiding the state anti-downzoning law, and instead granted the state's request to dismiss the counties' suit.

The counties, said the Phoenix-based judges of the Court of Appeals Division 1, "argue that they suffer a present injury because they are 'chilled' from exercising their zoning powers. (The counties) merely allege that they may suffer an injury in the future. Until (the counties) attempt to pass zoning ordinances that require the consent of owners and the owners withhold their consent, (the counties) have no present injury of which to complain."

The Court of Appeals said "when and if the Board of Supervisors is actually faced with any of these issues, then we would be presented with a real dispute ripe for resolution." To rule on the counties' case as presented "would be to render an advisory decision."

Pima County lawyers took some consolation in that ruling because it was a memorandum decision that was not published in case books and cannot be cited as precedent.

"The same issues have been raised in the other suit, so we'll be arguing our position there," said Katharina Richter, Pima County's chief civil deputy attorney and the chief legal adviser to the Board of Supervisors.

And County Administrator Chuck Huckelberry, who like his bosses on the Board of Supervisors opposed the 1998 state law, said McLaughlin's suit "gets down to the specific points."

Huckelberry and supervisors howled when Republican Governor Jane Hull signed the law against downzoning in May 1998. The county, in court papers filed in response to McLaughlin's suit, contends the law "constitutes an unlawful delegation of legislative zoning powers to private persons, is unconstitutionally vague" and violates the state constitution as well as the equal protection clause of the U.S. Constitution.

Ann Day, who has succeeded fellow Republican Mike Boyd in the central and foothills District 1 supervisor's seat, was in her penultimate term in the state Senate in 1998 and voted for the law barring county action to downzone.

"The whole thing has been a fiasco from day one," Day said, voicing displeasure with both the county and the final version of the state law. "The county was abusing its authority and overstepping its bounds but the final bill went too far. I remember having to take a side. I didn't like the bill, but if I had to take a side it was going to be on the side of property rights.

"The legislature overreacted," Day said. "We were using the wrong law for the right reason."

To McLaughlin, a former member of the City Council, the county's votes restricting his property reach farther than the no-growth measures contained in Proposition 202, which voters handily rejected in November.

"Not only does the Board of Supervisors ignore state law," says McLaughlin, "they also ignore the will of the voters."

In the county's long tradition of personal politics, where issues are rarely separated from individuals, McLaughlin was ensnared not only by powerful anti-development voices in the Tucson Mountains--a steady lobby against any construction on his parcels--but also by his political choices.

McLaughlin, a Republican, didn't endear himself to some members of the Board of Supervisors before and during the votes that went against him. He was a key supporter of Brenda Even and a coordinator of her failed campaign in the 1998 GOP primary against Supervisor Ray Carroll, although Carroll did not vote against one of McLaughlin's issues--that of the charter school. There also was backlash when McLaughlin was among those who lined up against the Board of Supervisors in the summer of 1999 when the board, beset by the county's mounting debt, raised property taxes to record high levels. Supervisors Dan Eckstrom and Raúl Grijalva, both Democrats who later voted to downzone McLaughlin's property, ridiculed McLaughlin and other budget critics during those budget and tax hearings.

With the county's fiscal crisis as the backdrop, McLaughlin represented property owners--including the son of the late and beloved former state legislator and arts benefactors Douglas and Alice Holsclaw--on the charter school proposal. A hearing officer first granted approval, but members of the Tucson Mountain West Neighborhood Association appealed to the Board of Supervisors. There, protesters were allowed to present petitions against development of that parcel as well as two others.

Included on the petition was the signature of the husband of Katharina Richter, the board's chief legal counsel. The county has since recruited legal power Amelia Craig Cramer, formerly of Brown & Bain, to handle the defense.

Grijalva led the Democratic majority that included Eckstrom and Sharon Bronson to deny a conditional use permit for the school. Carroll and Boyd voted to allow the school.

At the same meeting, Grijalva was successful in cranking up county machinery to downzone the adjacent parcel.

In the lawsuit, McLaughlin and other property owners say the board violated state law by discussing two properties that were not the subject of the charter school hearing. McLaughlin's attorneys, Ethan Steele and Jeffrey Neff, say the action violated the state Open Meeting Law as well as the zoning law because the parcels were not posted on the agenda nor was there required notice to the affected property owners. In their answer, Richter and Deputy County Attorney Christopher Straub say no notice was required and that the board was within its rights to talk about land uses within the area.

Eight months after the charter school denial, the county Planning and Zoning Commission, in a split vote, recommended against reducing the zoning on McLaughlin's property from commercial to low-density residential. Zoning had been in place for 27 years, but the Board of Supervisors voted unanimously in April of last year to approve the downzoning. And in June, the board again voted without dissent to deny McLaughlin's request for an 88-room resort on 20 neighboring acres.

McLaughlin says the downzoned parcel has been classified on at least three occasions in reviews and approvals of neighborhood plans for commercial and other non-residential uses as a neighborhood activity center. The county acknowledges that the countywide Comprehensive Land Use Plan, adopted in 1992 as Grijalva was ending his first term, also classifies the downzoned parcel as a neighborhood activity center.

McLaughlin and the other property owners, including Quik Mart, three trusts and a partnership, are seeking unspecified damages for violation of due process and equal protection as well as for taking or reducing the value of the property. It also seeks payment for the loss of the contractual opportunity to sell the parcel that was to be used for the charter school.

McLaughlin is zeroing in Bill Staples, one of Grijalva's two appointments to the Planning and Zoning Commission. Staples, a longtime Grijalva ally and campaign worker, also works in the county's real estate division within the Department of Transportation and Flood Control. He is paid $45,229 a year.

Staples' dual roles, the lawsuit contends, "present an unlawful conflict of interest as his votes are subject to being influenced by his employers," including supervisors and county administration.

The suit, assigned to Judge Charles Harrington, has not been set for trial.

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