Fidelity National Title Co. v. Town of Marana – 2/13/2009

March 3, 2009

Arizona Court of Appeals Division Two Holds that the Time for Filing a Referendum Petition Challenging a Zoning Ordinance Begins To Run When the Ordinance is Approved.

On October 2, 2007, the Town of Marana (“Marana”) approved an ordinance changing the zoning on a piece of land that Fidelity National Title Co. (“Fidelity”) owns.  The ordinance stated that the time for challenging the ordinance by referendum would not begin to run until after Marana filed a waiver with the theCountyRecorder.  Nessinger, thereafter, obtained a referendum petition, which stated that the deadline for filing was November 8, 2007.  Marana, however, contacted Nessinger and informed her that she did not have to file the referendum until after Marana filed its waiver.  Marana filed the waiver on November 8, 2007, and on that date, Nessinger obtained an amended referendum petition, which stated that the deadline for filing was December 10, 2007.  Nessinger filed the petition on that date.  Marana accepted and certified the petition.  Fidelity challenged the petition in Pima County Superior Court as untimely.  The trial court found for Nessinger and this appeal followed.

The Court of Appeals explained that according to Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 811 P.2d 22 (1991), and A.R.S. § 19-142(D), the date that triggers the 30-day period for challenging a rezoning is the date when the town council initially approves the ordinance.  The language of § 19-142(D) does not grant the state’s subdivisions with the power to deviate from this bright-line rule.  The Court of Appeals reasoned that while all interested parties can easily ascertain the initial approval date of an ordinance, the alternative triggering event that Marana adopted does not share the same virtue.  The bright-line rule also provides uniformity.  Because Nessinger did not file her petition within 30 days after Marana approved the rezoning, Nessinger’s petitioner was untimely.

Judge Eckerstrom authored the opinion; Judges Brammer and Vásquez concurred.