MANGUM, WALL AND STOOPS ATTORNEYS AT LAW 222 EAST BIRCH AVENUE H. KARL MANGUM NEIL V.CHRISTENSEN DOUGLAS J. WALL FLAGSTAFF, ARIZONA SSOOI 1923-196S RICHARD K. MANGUM DANIEL J. STOOPS MAILING ADDRESS: P. O. Box 10 JOVCE O. MANGUM January 29, 1973 TELEPHONE 774-6664 JOHN G.VERKAMP Dr. Richard F. Wilson 7326 Paseo del Norte Tucson, Arizona 85704 Re: Hart Prairie / Summit Properties Dear Dick: Enclosed herewith for your information and file is a copy of the Motion for Summary Judgment received today from Warren Ridge. If you have any questions, please let me know. Very truly yours, MANGUM, WALL AND STOOPS DJW/ch-1 Enc. 1 IN THE SUPERIOR COURT OF THE STATE OF ARI2DNA 2 IN AND FOR THE COUNTY OF COCONINO 3 4 RICHARD F. WILSON and JEAN WILSON, husband and wife, 5 Plaintiffs, 6 7 v. 8 COCONINO COUNTY BOARD OF SIP ERVISORS et al.; COCONINO COUNTY PLANNING AND 9 ZONING COMMISSION, et al.; and 10 SUMMIT PROPERTIES, INC., a subsidiary of POST CO., INC. (real party in 11 interest), 12 Defendants. No. 26662 (Consolidated) 13 14 and MOTION FOR 15 FRANK GOLDTOOTH, SR. and TSINNIGINNIE SUMMARY JUDGMENT SINGER, as ind. and for and in behalf of 16 all NAVAJOS similarly situated; and (Oral Argument EARL NUMKENA, as an ind. and for and Requested) 17 in behalf of all HO PIS similarly situated, 18 Plaintiffs, 19 20 COCONINO COUNTY BOARD OF SUPERVISORS 21 et al.; COCONINO COUNTY PLANNING AND 22 ZONING COMMISSION, et al.; and SUMMIT PROPERTIES, INC., a subsidiary of 23 POST CO., INC. (real party in interest), 24 Defendants. 25 26 COME NOW the defendants, by and through their respective 27 counsel, and pursuant to Arizona Rule of Civil Procedure 56(b), move the 28 Court to enter summary judgment in favor of the defendants and against the 29 plaintiffs on all matters before the Court for the reason that there are no 30 material issues of fact to be determined herein. 31 32 1 Dated this !j? day of January, 1973. 2 3 s) WARREN C. RIDGE 4 Attorney for Defendant Summit Properties, 5 Inc. 6 s) J. THOMAS BROOKS 7 Attorney for Defendant Summit Properties, Inc. 8 9 s) WILLIAM A. FLICK 10 Attorney for Defendants Coconino County 11 Board of Supervisors and Coconino County Planning and Zoning Commission et al. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 -2- 1 MEMORANDUM 2 MEMORANDUM OUTLINE 3 1. Statement of facts and issues 4 2. Legal Memorandum 5 a) Introduction - Jurisdictional question 6 7 b) General Defenses 8 c) Specific Defenses 9 3. Conclusion 10 11 12 STATEMENT OF FACTS AND ISSUES 13 1. This consolidated lawsuit combines a suit brought by 14 Richard F. Wilson and Jean Wilson, husband and wife (Coconino County 15 No. 26662) with a suit brought by Frank Goldtooth, Sr., Tsinniginnie Singer, 16 and Earl Numkena (Coconino County No. 26761). 17 18 2. Both actions, now consolidated under Coconino County 19 No. 26662, are against the same defendants, as indicated in the caption 20 herein. 21 3. The Wilson suit has four separate counts, while the 22 Goldtooth et al. suit contains twelve separate counts, the first four of which 23 are, for all practical purposes, identical to the first four counts of the 24 Wilson suit. 25 26 4. The subject matter of the consolidated suit is property 27 owned by defendant Summit Properties, Inc. in Coconino County, Arizona. 28 5. Plaintiff's complaints attempt to raise issues in two 29 general categories: 30 (a) Whether the rezoning of said property 31 initiated in 1969 is valid, and 32 •3- (b) Whether the developmental approvals (preliminary plat and use permit) obtained in 1972 are valid. 6. The salient sequence of events in this case is as follows: (all dates are established by pleadings and admissions on file herein. ) Rezoning Procedure: (a) December 12, 1969 -, Publication of Notice of Planning and Zoning Commission hearing. (b) December 30, 1969 - Planning and Zoning Commission hearing - approval recommended. (c) January 17, 1970 - Publication of Notice of Board of Supervisors hearing. (d) February 2, 1970 - Board of Supervisors hearing - approval granted. Developmental Approvals Procedure: (a) April 3, 1972 - Application for developmental approvals (preliminary plat and use permit). (b) April 25, 1972 - Planning and Zoning Commission hearing - approvals recommended. (c) May 6, 1972 - Publication of Notice of Board of Supervisors hearing. * (d) May 22, 1972 - Board of Supervisors hearing - approvals granted. 7. The specific issues which plaintiffs attempt to raise in each count of their consolidated complaint are: (a) Do the notice of hearing published by the Board of Supervisors give the Board juris- • _4- diction by complying with a fifteen day requirement contained in A. R. S. 11-829? (Counts I and II) (b) Does A.R.S. 11-822 require that the Planning and Zoning Commission, in order to obtain jurisdiction, publish notice in a newspaper of a hearing on an application for a use permit? (Counts II and III) (c) Unspecified constitutional issues. (Count IV) (d) Did the 1969 notice of the Planning and Zoning Commission and the 1970 notice of the Board of Supervisors contain legally sufficient in­ formation concerning the identity, ownership, location and zoning designations of the subject property to give those bodies jurisdiction? (Counts V, VI, VII and VIII) (e) Are the publication laws of Arizona unconsti­ tutional in that they require publication in English? (Count IX) (f) Are any religious rights which the plaintiffs Goldtooth et al. may have under the First Amendment to the United States Constitution being violated? (Count X) (g) Were any of the notices defective so as to de­ prive the County Board and Commission of jurisdiction because they were published in the Arizona Daily Sun? (Counts XI and XII) | -5- ! 1 8. A.R.S. 11-829 prescribes the process involved in rezoning. 2 It is a two-step procedure wherein the Planning and Zoning Commission con­ 3 ducts a hearing and then makes its recommendations to the Board of Super­ 4 visors, which Board in turn conducts its own hearing and then takes final 5 action. 6 7 9. The procedure for developmental approvals (use permit and 8 preliminary plat) is also a two-step process before the same bodies, and it 9 is prescribed in the Coconino County zoning regulations. 10 11 12 13 LEGAL MEMORANDUM 14 Introduction - Jurisdictional Question 15 As the Court will itself determine upon its review of the plead­ 16 ings, memoranda and depositions herein, this consolidated lawsuit is totally 17 without merit, and there are no issues of material fact to be determined 18 herein. The plaintiffs make numerous arguments which are incredible on 19 20 their face, other arguments which are ludicrous in light of the previous action 21 or non-action by plaintiffs, arguments which are super-technical and frivolous, 22 and finally, arguments are made which have absolutely no relationship to the 23 single jurisdictional question before this Court. For example, plaintiffs 24 argue: (1) that it is unconstitutional to print notices in English; (2) that the 25 Arizona Daily Sun, Flagstaff's principal daily newspaper, is not a newspaper 26 of general circulation in the county seat; (3) that Sunday is a non-day; and 27 28 (4) that unrequired notices are required. It is readily apparent that plaintiffs 29 are motivated by a desire to obstruct the proposed development, and not by a 30 truly held conviction that the technical arguments they, make have any merit. 31 The complaints are designated by the plaintiffs as "Special 32 Actions", pursuant to the Arizona Rules of Procedure for Special Actions. -6- 1 Rule 3 of said Rules provides that only three types of questions may be raised o ** in a special action. Plaintiffs' pleadings make reference to only one of those 3 three questions, to-wit: Rule 3(b) - "Whether the defendant has proceeded or 4 is threatening to proceed without or in excess of jurisdiction or legal authority 5 g . ." (emphasis added) 7 Accordingly, the Court must be aware that the question under- 8 lying the various water-muddying arguments presented by plaintiffs is whether 9 or not any of the esoteric and strained positions taken by plaintiffs have the effect of depriving the Board of Supervisors of their statutorily prescribed 11 jurisdiction to rezone property and improve developmental plans. 12 The jurisdictional predicate for action by a Board of Super- 13 visors in planning and zoning matters is found in Arizona Revised Statutes 15 11-801 through 11-830. See Hart v. Bay less Investment and Trading Company, 18 86 Ariz. 379, 346 P. 2d 1101 (1959). 17 18 GENERAL DEFENSES Before analyzing the specific arguments of plaintiffs and their 20 application or non-application to the jurisdictional question before the Court, 21 it is essential to present to the Court those several matters which constitute 22 separate general defenses to the relief sought by plaintiffs. 24 All Plaintiffs are Estopped by Laches from Contesting the Validity of the 1969-1970 Rezoning. 25 As previously indicated, the rezoning which is now being at- 26 I tacked was initiated in late 1969 and completed by the Board of Supervisors on on February 2, 1970. These proceedings of three years ago were not attended 29 by any of the plaintiffs. (See Affidavits Nos. 1 and 5) 30 The first legal attack upon said rezoning occurred upon the 31 filing of the lawsuit herein by the plaintiffs Wilson on June 26, 1972, some 32 I two and a half years after the rezoning.