Sun, Jan. 19

City clerk comments on referendum petition procedures<br><i>State statutes strictly govern <br>application, filing process</i>


Each of the two sets of petitions – one regarding Resolution 1886 and one regarding Ordinance 408, both approved Nov. 29 by the Cottonwood City Council – contained more than 160 signatures, well beyond the 102 required for a referendum, according to Davidson and Cherie Ryan, another Verde Heights resident.

Resolution 1886 redesignated the General Plan land use for the 144-acre parcel from "residential/mixed use" to "commercial, multi-family residential, business park, and open space/trails."

Ordinance 408 amended zoning from R-1 (single-family residential), R-2 (single- or multi-family residential), and C-1 (light commercial) to PUD-C/R (planned unit development, commercial-residential).

The serial-number mistake on the set of petitions regarding Ordinance 408 was discovered when the petitions were submitted to Jiménez for filing Dec. 31.

That serial number was corrected subsequently by Davidson and the neighborhood group, and rushed back to the clerk's office for filing. The petition was then taken by the clerk, Davidson said, but no receipt was given.

However, Jiménez said she didn't "take" the set of petitions. Instead, she said, Davidson brought them in and laid them on her desk at only five munutes before 5 p.m. The city clerk said, "I indicated to her I would call her." She reportedly talked with Davidson by telephone on Jan. 4.

In a Jan. 8 letter, the city clerk formally advised Davidson that the petitions regarding Ordinance 408 were being refused because "the petitions did not contain the correct serial number when they were circulated," in violation of state statutes.

The clock began running from the date of refusal – Dec. 31, according to city attorneys. Davidson and the group of neighbors were left with only two days to file their special action in Superior Court.

However, Jiménez said she viewed the time period differently from the city attorneys, but she had to abide by their advice. She cited her Jan. 8 letter to Davidson, in which she referred to her Jan. 4 telephone conversation with Davidson.

"When we spoke last Friday," the city clerk said in the letter, "I indicated to you that as far as I was concerned, the 10-day period … would not begin to run until I issued a final decision in this matter.

"And although it is my position that my final decision in this matter did not occur until today, our attorneys have advised us of an appellate court decision in which the court held that the time period begins on the date of refusal, rather than the date of notification of refusal, and the reasons therefore."

Jiménez's letter cited the specific 1992 appellate court case used as the case precedent by the city attorneys, Barry v. Alberty.

The letter further stated, "Thus, contrary to my personal position in the matter, it could be that a court might find that the period in which you were required to seek review of my refusal began to run on Dec. 31, 2001, rather than today.

"And if that is true, the time in which you must file a petiton for special action would expire on Jan. 10, 2002, because, in the same case cited above, the court held that this period was not extended by weekends, holidays, or mailing time, as is usually the case with other civil actions."

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