Daily Development for
Tuesday, October 13, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND PLANNING; COMPREHENSIVE PLAN; REFERENDUM: A rezoning of residential property pursuant to a municipality's general land plan is a legislative act subject to referendum.

Fritz v. City of Kingman, 957 P.2d 337 (Ariz. 1998).

The City of Kingman ("Kingman") adopted the Kingman General Plan on May 4, 1992 ("Plan") after holding public hearings and receiving citizen input. The Plan showed plaintiff's property to be in an area where densities could range from one to four dwelling units per acre. At the time the Plan was adopted, plaintiff's property was zoned to allow only one dwelling unit per acre. In 1997, upon plaintiff's request, Kingman adopted a zoning ordinance which changed the classification of plaintiff's property to allow up to four dwelling units per acre. A citizen group opposing the rezoning filed petitions with Kingman to refer the rezoning to a referendum. Kingman moved for summary judgment, arguing that the rezoning of plaintiff's property was done pursuant to the Plan, which it argued was legislation, and that the rezoning was thus an administrative act.

The Supreme Court of Arizona found that the rezoning was a legislative act. The court reasoned that the rezoning was a definite, specific act or resolution enacted by a legislative body, and that the Plan was merely a guide or statement of policies and preferences.

Comment 1: The editor is unfamiliar with whether holdings in other jurisdictions are consistent with the definition of "legislative act" here. The court cites only one decision, in Utah, and disagrees with that case. It should be noted that the General Plan in effect in Tucson in this case stated specifically that is was not determinative of any zoning issues, but merely advisory. State law in Arizona apparently does not elevate the general plan to the level of signficance it has (or at least has had) in states like Oregon.

Comment 2: A number of jurisdictions take seriously the distinction between "legislative" and "administrative" zoning activity. There can be significant procedural differences and differences as to the manner and standard of review, even Constitutional Due Process differences.

Whether a decision is "legislative" for referendum purposes may not be determinative of the question of whether it is "quasiadjudicative" for purpose of Due Process analysis, where relevant. In this case, for instance, the zoning decision apparently affected one tract of land owned by one landowner. Nevertheless, the determination here that the decision was legislative in character certainly will be something for analysts to consider when resolving other classification issues. As a decision of state Supreme Court in a case with significant growth control problems, this case is potentially an important precedent.

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