By: Keri Silvyn, Esq.
Let’s pretend that you own (or are under contract to purchase) a piece of property. You consult your local zoning attorney to determine whether you can use the property as you desire. You are told that a rezoning is required. You have the time, desire and drive to get it done (of course with the help of that zoning attorney!). The goal is to work with the surrounding property owners, jurisdictional staff and elected officials to find common ground, mitigate impacts and get the rezoning approved. What if common ground is not completely achievable and the rezoning becomes controversial – especially for the immediate surrounding neighbors? Knowing the risks and consequences of a rezoning protest that can trigger a supermajority vote of the elected body is incredibly important.
After decades of the State legislature not being interested in zoning protest laws, we now have two legislative sessions in a row with bills focusing on zoning protest requirements within cities and towns. The 2017 legislative session resulted in a major change to the law when Governor Ducey signed House Bill 2116 into law, becoming effective on August 9, 2017. And in 2018, additional amendments were offered to clarify the calculation for protest. Although the 2018 amendments were not passed, it appears there may be more attempts to clarify this calculation in upcoming legislative sessions.
The Law Prior to August 9, 2017
Before explaining the 2017 changes, understanding the law as it existed before August 2017 is important. In cities/towns, if 20 percent of the property owners within 150-feet on any one side of the rezoning property protested in writing, then ¾ of the elected body, or supermajority, had to vote for the rezoning. The supermajority vote for a seven-member city/town council required six out of seven members. A nine-member city/town council required seven out of nine members. In addition, to calculate the protest votes for a property that abutted a public street/right-of-way, the 150-foot protest area did not include the street. This allowed the protest area to extend beyond 150-feet of the rezoning property because the area measurement began on the other side of the street, opposite the rezoning area. Cities/towns had difficulty administering this law, particularly when the rezoning property had an odd shape that made it hard to determine what a “side” is for purposes of the calculation.
The Law Today
So, what did HB 2116 change?
- 20 percent calculation based on all sides of the rezoning property.
Under the new law, a supermajority vote is triggered if 20 percent of the property by area and number of lots, tracts and condo units within the “Zoning Area” files a written protest. The Zoning Area includes both the proposed rezoning area and the area within 150 feet of the entire boundary of the rezoning area, including rights-of-way. The 20 percent is no longer based on each side, and now must include 20 percent of both the land area AND the number of lots, tracts and condo units within the Zoning Area. With these changes, triggering a supermajority vote has now become more difficult for adjacent property owners.
- Public rights-of-way are now part of the 150-foot calculation.
The old law excluded public rights-of-way from the 150-foot protest area. So, if there was a 120-foot public street adjacent to the rezoning property, the old law ignored the public street and began the 150-ft measurement on the OTHER SIDE of the street right-of-way. The new law includes the street within the 150-foot measurement area. In the same scenario as above, now the 150-foot protest area covers the 120-foot street and the properties/area extending 30 feet beyond the public street. For properties across the street from a proposed rezoning, the new law generally makes it more difficult to reach the 20 percent protest
- Three-Quarter vote on a 7-member council is now 5.
The new law now states that for purposes of calculating the supermajority (3/4) vote, “the vote shall be rounded to the nearest whole number.” For those who must go to YouTube to learn math (especially when trying to help your kids with homework), here is a link to the YouTube video explaining what “rounding to the nearest whole number” means: https://www.youtube.com/watch?v=s7qzUt0wuDs.
Bottom line is that ¾ on a seven-member council is now five and not six. In the Tucson region, this modifies the supermajority vote count for all cities/towns in the region: City of Tucson, City of South Tucson, Town of Oro Valley, Town of Marana and Town of Sahuarita. In the Phoenix metro area most cities have a seven-member council, now requiring five votes for a supermajority. For those cities/towns with five or nine-member councils, the new law does not change the supermajority number, which is four and seven respectively. For example, the law does not impact Phoenix’s nine-member council, which still has a supermajority vote of seven members.
Many cities and towns have their own ordinances explaining how the supermajority/protest works in conformance with the old laws. Those cities/towns have or should be revising their zoning ordinances to reflect the new law. Because state law preempts local law on this issue, the new State law controls even if a jurisdiction has not revised its local ordinance.
It’s not over yet!
One concern about the new law already being voiced from citizens and some local jurisdictions is that the protest calculation includes BOTH the land within the rezoning area AND the 150-foot perimeter around the rezoning area. If the rezoning area is large enough (with or without right-of-way adjacent to the rezoning request area), then the surrounding neighbors could ostensibly never get to 20 percent to trigger the supermajority vote. SB-1014 was introduced in the 2018 session to address this issue by proposing language to require calculating the 20 percent one of two ways:
EITHER within the rezoning request area
OR within the 150-foot perimeter (but not both).
SB 1014 was not passed in 2018. However, expect another push in 2019 to revise this language.
Understanding the protest laws as part of an overall zoning strategy – especially for contentious cases – is critical!
With all of the changes in 2017, and a promised attempt in 2019 to further revise the protest laws, watching this law carefully along with the timing of your rezoning case in a city/town is important.