An Interesting Update and Documents Filed.

A reply to the Town’s response has been filed with the Court.  An answer to the Counter Claim is due July 26.  That answer will include a discussion on the affirmative defenses asserted by the TOP.  There will then be a briefing and oral arguments.   A copy of the reply is found below in .pdf format.

As outlined in this post, we were reviewing the presentation to Council against the court fillings.  The Answer, drafted by the firm of Titus Brueckner, provides no case citations.  Town Legal appears to have presented citations to the Town Council in support of the purported repeal of the Propositions that do not appear to have made their way to the Court.   The Counter Claim, prepared by Mr. Paladini, Town Legal, with Pierce Coleman, cites two cases.  A review of the presentation to the Town Council on April 12 shows five citations.  Most appear to deal with legislative acts or zoning issues.

The video reflects the following, the discussion starts at 1:58:21 mark:

Minute Mark Citation Subject Discussion
  2:00:00 Town Legal, Mr. John Paladini declines to read the Propositions to Council.
 2:04:10 City of Scottsdale vs. Superior Court The subject is a zoning issue from 1968. In City of Scottsdale v. Superior Court (1968) 103 Ariz. 204 [ 439 P.2d 290], the Arizona Supreme Court held that the use of the initiative for amending a comprehensive zoning ordinance is in “irreconcilable conflict with the due process clause of the United States Constitution, 14th Amendment.”

The Arizona Supreme Court has used this principle in holding that zoning by initiative poses an irreconcilable conflict with the Due Process Clause of the United States Constitution.

 2:07:00 Crane vs. Peterson (Maricopa Superior) The subject was term limits. A Maricopa County Superior Court judge ruled the town’s term limits could not be enforced.  “Although the Town defended the ordinance, the Judge found the ordinance was in violation of State law.”
 2:08:00 League of Arizona Cities vs. J Lamar Shelly, General Counsel The subject is powers of initiatives referencing rezoning.
 2:11:20 State vs. Oakley The subject is zoning and legislative act. The “Adoption of the boundaries of a [community college] election district is a legislative act.”
 2:13:00 Wennerstrom vs. the City of Mesa Only legislation may be referred. In Wennerstrom, after voters approved Mesa’s “request for authorization to issue and sell $30 million of general obligation bonds” to improve city roads, the city council “passed a resolution ‘conceptually approving’ the widening of a portion of Country Club Drive from five to seven lanes ‘with alignment as indicated by staff.’

CONCLUSION AND DISPOSITION:  The two actions of the Mesa City Council which are challenged on appeal are not legislative in character and thus are not subject to referendum. For the reasons stated in this opinion, we affirm the trial court. The Mesa electorate spoke in 1987 when it approved the bond proposal. If there are those who disagree with the Council’s actions in implementing the bond proposal, their remedy does not lie in Arizona’s referendum laws.

A summary as found in another case, Tourtillot v. Yuma County noted the project at issue “merely carrie[d] out the [previously approved street-improvement] policy” and did not qualify as a legislative act.

Only two of the citations presented to the Council have made their way into the court fillings.  They are, City of Scottsdale vs. Superior Court and Wennerstrom vs. the City of Mesa.  If the citations presented to Council on April 12 were valid, and the basis/support for the purported repeal, it would seem they would have been included in the Answer or Counter Claim.  It appears not.  We are hopeful Town Council can address this with Town Legal.


There is an ongoing case against the Town of Payson by Varxity.  Varxity was part of the trilateral agreement that proposed the development of Rumsey Park.  We have accessed court filings.  In that case, the TOP filed a separate statement of facts in support of a motion for summary judgment.

The TOP is on record as stating that the Propositions prevented them, in part, from moving forward with the trilateral agreement.  That statement of facts indicates some discussion about 401 and 402.  A full copy is below in .pdf format.  It reads in part as follows.

Page 3 – Line 23

As a result of an election in August 2018, a new Mayor was elected and two

Page 4 – Line 1 – 13

As voter-initiated propositions (known as Propositions 401 and 402) restricted, or purportedly

restricted, the Town’s ability to lease its property (i.e. Rumsey Park).  The Town, Varxity,

and CCP recognized, at the time, that the election results effectively prevented the Town

from moving forward with the validation phase.  (See September 2, 2018 emails from Ron

Chambless and Lee Ploszaj, VDC-00472-00473, attached here as Exhibit 12; October 3,

2018 emails between Lane Moore and LaRon Garrett, VDC-00458-00459, attached here

as Exhibit 13; Ex. 4, Moore Depo. 13:22 – 14:7, 15:13 – 16:15, 35:15-24; Ex. 7, Garrett

Depo at 32:17 – 34:11.)


The Town Manager and Varxity’s CEO Lane Moore discussed the impact of

Propositions 401 and 402 on the Town’s ability to move forward in early October 2018.

(Ex. 13; Ex. 4, Moore Depo. 56:10 – 57:11, 57:18 – 59:11, 59:24 – 61:5.)


Specifically, the Town Manager confirmed that the Town “voted not to move

forward with anything validating the effects of 401 and 402.” (Ex. 13.)


Interestingly, the Town Manager stated there was a vote by the Town not to move forward.  That appears to reference Resolution 3132 of 2018.  A copy is again below in .pdf.  The Resolution reads in part as follows:

WHEREAS, on August 28. 2018, the electorate of Payson passed two ballot initiatives (401 and 402) which will become effective on January 1, 2019 and which may have a direct effect on the future of Rumsey Park, thus impacting the validation process; and

It appears the Town recognized the validity of 401 and 402 to support, in part, the exit of the trilateral agreement. The statements “the electorate of Payson passed two ballot initiatives” and “which will become effective on January 1, 2019” do not appear to leave room for doubt as to the Propositions’ validity.

The TOP now states the Propositions are invalid and can be repealed.  It would seem if the Propositions were not valid, and could be repealed, there would have been no need to terminate the trilateral agreement.  How can Propositions that were invalid and had insufficient votes cast impact a prior agreement?  We are uncertain if this will have implications for our matter.

Reply to Town’s Response.

071923 TP v TOP Reply-App OSC


Statement of facts in Varxity Development Corp. vs. Town of Payson.

V vs TOP Statement of facts for sum j - via TOP


Resolution 3132 of 2018.

112918 Resolution 3132


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