By: Keri Silvyn Esq., Larry Lazarus Esq., and Rory Juneman Esq.
Let’s pretend that you own (or are under contract to purchase) a piece of property. You consult your local zoning attorney to determine whether you can use the property as you desire. You are told that a rezoning is required. You have the time, desire and drive to get it done (of course with the help of that zoning attorney!). The goal is to work with the surrounding property owners, jurisdictional staff and elected officials to find common ground, mitigate impacts and get it approved.
What if common ground is not completely achievable and the rezoning becomes controversial – especially for the immediate surrounding neighbors? Knowing the risks and consequences of a legal protest requiring a supermajority vote of the elected body is incredibly important. For decades, the legal protest calculation has remained unchanged. Then, on May 10, 2017, Governor Ducey signed House Bill 2116 into law substantially modifying the protest calculation for a rezoning within cities and towns .
The new law becomes effective August 9, 2017. Before explaining the changes, understanding the law as it exists today is important. In cities/towns, if 20% of the property owners within 150-feet “in the rear or any [one] side” of the rezoning property protested in writing, then a ¾ vote was triggered for the elected body. If there is a street or public right-of-way directly adjacent to the rezoning property, then the 150 feet was calculated starting on the other side of the street. For the supermajority vote on a 7-member city/town council, the vote required was 6 out of 7 members.
If it was a 9-member city/town council, the vote required was 7 out of 9 members. This law was difficult to administer, particularly when the rezoning property had an odd shape, making it difficult to figure out what a “side” is for purposes of the calculation.
So, what does the new law change?
1. 20% calculation based on entire perimeter of rezoning property. Under the new law, a supermajority vote is triggered if 20% of the property by area and number of lots, tracts and condo units within the “Zoning Area” files a written protest. The Zoning Area includes both the proposed rezoning area and the area within 150 feet of the rezoning area including rights-of-way. The 20% is no longer based on each side, and the 20% must be both the land area AND the number of lots, tracts and condo units within the Zoning Area. With these changes, triggering a supermajority vote has now become more difficult for adjacent property owners.
2. Public rights-of-way are now part of the 150-foot calculation. The old law excluded public rights-of-way from the 150-foot protest area. So, if there was a 120-foot public street adjacent to the rezoning property, the old law pretended that the public street did not exist.
The 150-foot protest area was calculated starting on the OTHER SIDE of the public street and extending 150 feet. The new law includes the street within the 150-foot area. In the same scenario above, if the street were 120 feet wide the 120 feet of the public street is now included in the protest calculation, resulting in only the properties and area of the properties within the 30 feet on the other side of the public street being included in the protest calculation. This new law generally makes it more difficult to reach the 20% protest where a rezoning property is adjacent to public rights-of-way.
3. Three-Quarter vote on a 7-member council is now 5. The new law now states that for purposes of calculating the supermajority (3/4) vote, “the vote shall be rounded to the nearest whole number.”
For those who must go to YouTube to learn math (especially when trying to help your kids with homework), here is the link to the YouTube video that helped me understand what “rounding to the nearest whole number” means: https://www.youtube.com/watch?v=s7qzUt0wuDs. Bottom line is that ¾ on a 7-member council is now 5 and not 6. In the Tucson Metropolitan area, this modifies the supermajority vote count for all cities/towns: City of Tucson, City of South Tucson, Town of Oro Valley, Town of Marana and Town of Sahuarita. In the Phoenix metro area most cities have a 7-member council, now requiring 5 votes for a super majority. For 5 or 9-member city/town councils, this language does not change the number – it is 4 and 7 respectively. Phoenix has a 9-member council. Consequently, there is no change for Phoenix and the supermajority is still 7. Many cities and towns have their own ordinances explaining how the supermajority/protest works in conformance with the old laws. Those zoning ordinances need to be revised to reflect the new law – preferable by August 9th. After August 9th, the validity of a city/town ordinance reflecting the old law is in serious question since state law preempts local law in this instance. The new law should control even if the local ordinance has not yet been revised. Understanding the protest laws as part of an overall zoning strategy – especially for contentious cases – is critical! So make sure you contact your local zoning attorney at Lazarus, Silvyn & Bangs, P.C. to understand the law and how it applies to your property!! We look forward to hearing from you.
ARS § 9-462.04 (H) and (K); Note that ARS § 11-814 (E) and (L) govern protests for rezoning in unincorporated counties and have different requirements than ARS § 9-462.04.