Zajac v. City of Casa Grande

SUPREME COURT OF ARIZONA
En Banc

STEPHAN G. ZAJAC, a single man, ) Arizona Supreme Court
and EVELIA S. ZAJAC, a single ) No. CV-03-0397-PR
woman, )
) Court of Appeals
Plaintiffs-Appellants, ) Division Two
) No. 2 CA-CV 03-0077
v. )
) Pinal County Superior
CITY OF CASA GRANDE, an Arizona ) Court
municipal corporation; WAL-MART ) No. CV200200932
INCORPORATED, )
)
Defendants-Appellees. ) O P I N I O N
)
__________________________________)

No. CV200200932
Pinal County Superior Court
The Honorable Kenneth L. Fields, Judge
JUDGMENT REINSTATED

No. 2 CA-CV 03-0077
Court of Appeals, Division Two
VACATED

Morrill & Aronson, P.L.C. Phoenix
By John T. Moshier
Scott D. Larmore
and
Cole, Massey & Finley Casa Grande
By A. Thomas Cole
Attorneys for Plaintiffs-Appellants

Casa Grande City Attorney’s Office Casa Grande
By Kay Bigelow
Attorneys for Defendant/Appellee City of Casa Grande

Bryan Cave LLP Phoenix
By Steven A. Hirsch
Stanley B. Lutz
Attorneys for Defendant/Appellee Wal-Mart Incorporated
__________________________________________________________________
J O N E S, Chief Justice

¶1 The City of Casa Grande, after several hearings before

the Planning and Zoning Commission and the City Council, rezoned

certain property by municipal ordinance. The rezoning ordinance

was subsequently upheld by the local electorate in a referendum

election. The plaintiffs, two Casa Grande residents, allege that

the city failed to comply with notice requirements applicable to

the hearing and enactment process and ask that we nullify the

referendum and invalidate the ordinance. Because the plaintiffs

failed to assert a timely claim, we hold they are now barred from

obtaining the relief sought.

I.

¶2 In September 2001, Wal-Mart, Inc. filed an application

with the City requesting rezoning for approximately twenty-eight

acres of property on the southeast corner of Florence Boulevard

and Arizona Road in Casa Grande. Wal-Mart asked the City to

change the property zone from “Urban Ranch” to “Planned Area

Development.” See Casa Grande City Code (“City Code”) § 17.16.010

(2001) (designating zoning classifications). On October 4, 2001,

a hearing took place before the Casa Grande Planning and Zoning

Commission to consider Wal-Mart’s request. At the hearing, the

Commission decided by a five-to-two vote to recommend that Wal-

Mart’s request be denied. Wal-Mart appealed the recommendation to

the City Council and, at a November 5, 2001 hearing, the Council

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granted Wal-Mart’s rezoning request by a four-to-three vote. In a

subsequent meeting, November 19, 2001, the City Council formally

adopted the rezoning request as Ordinance No. 1178.167. Finally,

on December 6, 2001, the Planning and Zoning Commission, by a

five-to-two vote, approved Wal-Mart’s proposed major site plan.

¶3 Some time after city approval of the Wal-Mart plan, a

group of residents opposed to the rezoning circulated a petition

to refer the ordinance to the voters in a special election. See

Ariz. Rev. Stat. (“A.R.S.”) §§ 19-101 to 19-143 (2001).

Sufficient signatures were obtained, and the referendum was held

May 21, 2002. Casa Grande voters approved the rezoning ordinance

by a vote of 1,784 to 1,466.

¶4 More than three months later, on September 12, 2002,

Stephan G. Zajac and his mother, Evelia S. Zajac (collectively,

“Zajac”), filed a complaint in superior court against the City and

Wal-Mart challenging the validity of the rezoning ordinance.

Zajac, the owner of property located at least in part within 200

feet of the proposed Wal-Mart, charges the City with failure to

give notice of the public hearings as required by Arizona law.

¶5 Zajac’s suit is grounded in both the Casa Grande City

Code, and in state statutory rezoning requirements imposed on all

municipalities when addressing requests to rezone property. See

City Code §§ 17.68-480 to -550 (2001); A.R.S. § 9-462.04 (Supp.

2003). The statutes require a municipality to “adopt by ordinance

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a citizen review process that applies to all rezoning and specific

plan applications that require a public hearing.” A.R.S. § 9-

462.03(A) (Supp. 2000). Pursuant to this requirement, the City

enacted a citizen review process which expressly includes

procedures for notice and hearing when property is being rezoned.

Notice of the time, date, place, and purpose of the hearing must

be provided to the general public by publication in a newspaper of

general circulation at least fifteen days prior to the first

hearing. City Code § 17.68.500(B). The parties do not dispute

that the City complied with these procedures. The City Code also

requires that a “similar notice shall be made at least fifteen

days before the day of the first hearing to each owner of property

situated wholly or partly within two hundred feet of the property

to which the rezoning relates.” City Code § 17.68.500(C).

¶6 Cities are required by law to “follow[] the procedure

prescribed in the citizen review process” any time consideration

of a plan is undertaken to adopt a “zoning ordinance that changes

any property from one zone to another.” A.R.S. § 9-462.03(B).

Thus, by reason of § 9-462.03, a failure to notify the owners of

property located within the 200-foot limit results in not only a

violation of the City Code but also a violation of state law.

¶7 The City mailed the requisite notice of the hearings to

the adjacent property owners. Although Zajac’s name appeared on

title records as the owner of property located within 200 feet of

4
the proposed building site, he resided with his mother elsewhere

in Casa Grande. The notice or notices were apparently mailed to

the subject property which, at all times relevant, was leased to a

tenant. One can conclude from the record that neither Zajac nor

his mother received the mailed notice.

¶8 Nevertheless, as noted, the hearings occurred, the

ordinance was adopted, and the referendum took place. Then, more

than three months after the referendum, Zajac filed the instant

suit in superior court alleging that the City failed to give

notice, that the rezoning ordinance was void ab initio, and that

no change in the property zoning ever occurred. The suit

requested that the court enjoin the City from issuing construction

permits or approvals to Wal-Mart.

¶9 On February 18, 2003, the superior court issued a minute

entry dismissing Zajac’s claim. The court held that the City and

Wal-Mart “complied in all respects” with statutory notice

requirements and “substantially complied” with the requirements of

the City Code. Finding substantial compliance to be “all that is

required” under Schwarz v. City of Glendale, 190 Ariz. 508, 950

P.2d 167 (App. 1997), the trial court denied Zajac’s request for

relief.1

1
The trial court upheld the ordinance on the theory of
“substantial compliance” with the notice requirements. Our
disposition of this case in today’s opinion makes it unnecessary
for us to address the compliance issue.

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¶10 Zajac appealed and, in a memorandum decision, the court

of appeals reversed, rejecting the “substantial compliance”

standard and holding that Hart v. Bayless Investment & Trading

Co., 86 Ariz. 379, 346 P.2d 1101 (1959) and its progeny demand

“strict compliance” with the notice requirements for public

hearings on proposed zoning changes. Zajac v. City of Casa

Grande, 2 CA-CV 2003-0077 ¶ 25 (Ariz. App. Oct. 6, 2003) (mem.

dec.). The appellate court further found that by not mailing

notice to the address of Zajac’s actual residence, the City and

Wal-Mart “negligent[ly] fail[ed] to comply with the city’s own

notice by mail requirement.” Zajac, 2 CA-CV 2003-0077, slip op.

at ¶ 40. The court also rejected additional arguments made by

Wal-Mart, expressly finding the referendum and Zajac’s prior

knowledge of the referendum to be irrelevant. Zajac, 2 CA-CV

2003-0077, slip op. at ¶¶ 43-44. The court declared the rezoning

ordinance null and void. Zajac, 2 CA-CV 2003-0077, slip op. at ¶

46.

¶11 Wal-Mart and the City of Casa Grande jointly petitioned

this court for review of the appellate decision. We granted

review and directed specifically that the parties submit

supplemental briefs on the effect, if any, of the zoning ordinance

referendum on plaintiffs’ right to sue. Our jurisdiction is

established by Article VI, Section 5(3) of the Arizona

6
Constitution, A.R.S. § 12-120.24 (2003), and Rule 23 of the

Arizona Rules of Civil Appellate Procedure.

II.

¶12 Adoption of a city ordinance by the city’s governing

authority, the city council, is an exercise of legislative power.

Our courts have consistently refrained from ajudicating

substantive attacks on new city ordinances prior to completion of

the adoption process; that is, until the ordinance becomes law.

But in cases in which procedural defects in the adoption process

are alleged, our decisions have invalidated city and county

ordinances for failure to follow statutorily required procedures.

See, e.g., Hart, 86 Ariz. 379, 346 P.2d 1101 (invalidating county

ordinance for failure to comply with procedural requirement of

state Zoning Act); Hyland v. City of Mesa, 112 Ariz. 66, 537 P.2d

936 (1975) (invalidating city ordinance for failure to comply with

procedural requirements of state law).

¶13 Today’s case arises in the context of a law that had

been approved by the voters of Casa Grande in a referendum

election, and requires that we focus on when challenges to the

procedures by which this law was adopted must be made. Early in

our state’s history, this court considered a challenge similar to

that presented by Zajac. In Allen v. State, 14 Ariz. 458, 130 P.

1114 (1913), the legislature enacted a statute making it a crime

to kill a quail without a license. Id. at 459-60, 130 P. at 1114-

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15. After a sufficient number of the voters signed referendum

petitions, a state referendum followed in which voters approved

the law. Id. at 464, 130 P. at 1116. The defendant, who was

charged under the statute and admitted killing the quail, argued

that the statute was invalid, not as to its substance, but because

the matter was allegedly not submitted to the voters at the proper

election, and because pre-referendum publicity required by the

state constitution had not been provided. Id. at 461, 130 P. at

1115. This court addressed these procedural challenges and held

that the defendant’s failure to raise the objections before the

referendum election barred his suit:

If objections had been made in the early stages of the
process of submission for the reasons now assigned, the
questions would have been subjects of judicial
investigation and determination. . . . Timely appeal to
the courts upon the questions now raised, if
meritorious, would have settled the matter before the
election was had. However, the measure was submitted to
the voters without question. They were invited to
believe that the formalities of the law pertaining to
the submission of the measure had been fully met. The
expense of the election was incurred, and the electors,
imbued with the conviction that they were performing one
of the highest functions of citizenship, and not going
through a mere hollow form, we may assume, investigated
the question and went to the polls and voted thereon.

Id. at 461-62, 130 P. at 1115.

III.

¶14 This court has consistently followed Allen when

considering challenges to the procedures leading up to initiative

and referendum elections. See Fairness & Accountability in Ins.

8
Reform v. Greene, 180 Ariz. 582, 587, 886 P.2d 1338, 1343 (1994)

(“[T]he procedures ‘leading up to an election cannot be

questioned’ after the vote but ‘must be challenged before the

election is held.’”) (quoting Tilson v. Mofford, 153 Ariz. 468,

470, 737 P.2d 1367, 1369 (1987)); see also Hernandez v.

Frohmiller, 68 Ariz. 242, 259, 204 P.2d 854, 865 (1949) (refusing,

after the vote, to invalidate a ballot initiative alleging defects

that occurred in the process prior to the election); Renck v.

Superior Court, 66 Ariz. 320, 326-27, 187 P.2d 656, 660-61

(1947)(same); Kerby v. Griffin, 48 Ariz. 434, 444, 62 P.2d 1131,

1135 (1936) (“[I]f parties allow an election to proceed in

violation of the law which prescribes the manner in which it shall

be held, they may not, after the people have voted, then question

the procedure.”); Abbey v. Green, 28 Ariz. 53, 68, 235 P. 150,

155 (1925) (“[A] duty is imposed upon one who would question the

correctness or regularity of an election to act promptly, and, if

he has information before the election of any defects in the

proceedings, he must take steps to prevent the election . . . , or

he will be regarded as having waived them.”).

¶15 Zajac’s argument — that he was harmed by the City’s

failure to give notice — unmistakably raises a procedural not a

substantive issue. See Winkle v. City of Tucson, 190 Ariz. 413,

416, 949 P.2d 502, 505 (1997) (stating that “fail[ures] to comply

with publication requirements” in initiative petitions are

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“procedural defects”); Hart, 86 Ariz. at 391, 346 P.2d at 1110

(identifying failures to comply with notice requirements as

“procedural infirmities”). Zajac does not assert that the City

lacked the substantive power to rezone property within its

jurisdiction or that the ordinance violates the Constitution or a

statute.2

¶16 Zajac does contend, however, that the failure to notify

pertained to the rezoning hearings, not the subsequent referendum,

and that the City therefore lacked jurisdiction to enact the

2
Although Zajac does not expressly argue that notice
requirements are substantive, he cites Hart as stating that a
failure to provide proper notice is a “jurisdictional” defect.
To the extent this argument implies that notice requirements are
not procedural, Hart is unsupportive. The issue whether the
defects were “jurisdictional” arose in Hart only after the court
determined the defects that had occurred were in fact procedural:
It is clear from this record that the mandate of the
Zoning Act was ignored. The question then arises
whether these procedural defects are of such gravity
that the ordinances must be invalidated.
. . . [S]uch ordinance will not be set aside unless
defects are shown which are jurisdictional in nature.
The remaining question, then, is whether the failure to
comply with the notice and hearing conditions of the
Zoning Act left the Commission and Board without
jurisdiction to adopt either or both of the ordinances
in question.
Hart v. Bayless Inv. & Trading Co., 86 Ariz. 379, 390, 346 P.2d
1101, 1109 (1960).
Our analysis in the instant case, therefore, is not whether
defects occurred or whether existing defects are “jurisdictional.”
Rather, as a preliminary matter, we ask only whether the alleged
defects were procedural.

10
ordinance at the rezoning stage.3 But even if his argument were

correct as to the rezoning hearings, his complaint is really no

different from the complaint asserted in Allen and its progeny –

that procedural defects prior to the referendum election

invalidated the election.

¶17 The Allen principle applies here. Allen, like Zajac,

failed to assert his objection until after the referendum had

occurred. 14 Ariz. at 465-66, 130 P. at 1116-17. Like Allen,

Zajac could have raised an objection prior to the referendum

election. The record is clear that Zajac had actual knowledge

prior to the election that the proposed rezoning ordinance had

been adopted by the City and would be referred to the voters in an

election. He placed a sign in his yard manifesting opposition to

the rezoning and, indeed, cast his personal vote against the

rezoning ordinance in the referendum. As a result of his failure

to challenge alleged procedural defects before the election,

Zajac, like Allen, has waived his right to object.

¶18 Finally, the record indicates Zajac actually recognized

the validity of the referendum he now challenges. Having had

actual notice of the impending election, he claims to have

“await[ed] the results of [the] referendum” to file suit because

“if [the election had been] decided in [his] favor [, it] would

3
The Zajacs, in fact, expressly argue that the referendum
should never have taken place and was therefore of no effect.

11
have mooted th[e] lawsuit.” In other words, he effectively

recognized the election as legitimate, but did so only if the

ordinance were defeated. Dissatisfied with the election results,

Zajac now argues that voters lacked authority to act on the

matter. He cannot have it both ways; that is, he cannot allow the

election to proceed without objection, and then be permitted

thereafter to assert his protest. The Allen court employed

similar reasoning in an analogue to the doctrine of estoppel:

While estoppel may not technically bind either party to
an election, yet where a mere defect of form exists,
which may, if presented seasonably, be fully corrected,
and is not suggested until after the election is over,
there is eminent justice in applying the principles of
estoppel, and holding that they who have gone to trial
on the merits shall not, when beaten there, go back to
an amendable defect in the preliminary proceedings.

14 Ariz. at 480, 130 P. at 1123 (quoting Prohibitory Amendment

Cases, 24 Kan. 700 (1881)); see also Renck, 66 Ariz. at 325, 187

P.2d at 659 (“[I]f parties allow an election to proceed in

violation of the law . . . they may not, after the people have

voted, then question the procedure.”) (quoting Kerby v. Griffin,

48 Ariz. 434, 444, 62 P.2d 1131, 1135 (1936) (citations omitted)).

IV.

¶19 Like the Allen court, we perceive justice in declining

to upset the stated will of the voters of Casa Grande. For the

foregoing reasons, we hold that Zajac, having failed to file a

timely complaint, has waived his right of action. Clearly, the

post-referendum filing is subject to the doctrine of waiver, a

12
doctrine frequently referred to as the equitable doctrine of

estoppel by laches. We therefore vacate the memorandum decision of

the court of appeals and order reinstatement of the judgment of

the trial court.

____________________________________
Charles E. Jones
Chief Justice
CONCURRING:

____________________________________
Ruth V. McGregor, Vice Chief Justice

____________________________________
Rebecca White Berch, Justice

____________________________________
Michael D. Ryan, Justice

____________________________________
Andrew D. Hurwitz, Justice

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