February 10, 2005
A legal attempt to stop a Mesa election has failed. A Maricopa County Superior Court judge’s ruling Wednesday denies Riverview at Dobson developers’ claims that referendum petitions were invalid.
The ruling paves the way for the May 17 special election, which will determine whether Mesa gives up $80 million in sales tax revenue and fees for a major retail project expected to be anchored by Bass Pro Shops Outdoor World.
Kimco Developers and De Rito Partners Development will not appeal Judge Jonathan Schwartz’s decision, said Doug Cole, a political consultant representing the developers.
"We’re moving forward with the May 17 election, and we have a great story to tell," Cole said.
The developers are planning a 250-acre project at Loop 202 and Dobson Road that’s also expected to include a 16-screen movie theater and entertainment district, "big-box" retail stores, auto dealerships and a business park.
The referendum effort was led by David Molina and Jan Hibbard of Valley Business Owners (And Concerned Citizens), whose paid circulators collected 3,691, 3,788 and 4,055 valid signatures respectively for the three zoning-related referendum measures.
"The people who signed the petitions won, the Constitution has won and justice has prevailed," Hibbard said of Wednesday’s decision.
The developer’s lawsuit attempted to have the election called off on four counts, but never questioned the number of valid signatures.
The first allegation was that certain petitions were invalid because a paid circulator had her affidavit notarized by her son. Schwartz wrote that he sees conflicting interpretations of notary law between the intent of the Legislature and a secretary of state manual.
The allegations in the lawsuit contend that petitions used misleading and inflammatory language such as "secret deals," "secret subsidies," and "corporate welfare," but Schwartz wrote that the incentive package is linked to the zoning and the descriptions were not misleading.
Schwartz denied the developers’ claims that a mistake in a description of the property should invalidate the petitions. Schwartz wrote that mistake was cured by a warning on the petitions letting the signer know the description could be incomplete. Finally, the developer claimed the general plan amendment — one of three measures that will be on the ballot — is not subject to referendum. Schwartz disagreed.
The decision guarantees an election, but another pending lawsuit could push back the date. That debate is scheduled to resume in U.S. District Court today with a hearing before a three-judge panel.
Molina filed a lawsuit alleging Mesa violated federal election law by failing to seek clearance from the Department of Justice before the City Council called the election.
Mesa City Attorney Debbie Spinner said the city received a letter Wednesday from the Department of Justice that grants Mesa preclearance for the May 17 special election date. The city submitted for preclearance after the election was called, which Spinner said is the city’s normal practice.