Superior Court Judge Edward Burke ruled Monday that petitions circulated by SOS Town were defective and granted a summary judgment in favor of the Ellman Companies’ challenge of the referendum petitions.

This means there won’t be a November referendum election and Ellman can proceed with his approved development plans in northern Fountain Hills.

The ruling is subject to appeal, however.

John McNeill, an attorney and member of the SOS Town committee, said Tuesday morning they had made no immediate decision on whether to appeal the ruling.

The intervenor may take the case forward to appeal.

“There is some time to decide on whether to appeal,” McNeill said.

He added that the appeal process may take some time if they go that route.

“We are disappointed in the judge’s ruling,” McNeill said. “I think he just didn’t get that the 1,750 (lots) wasn’t a given.

“He accepted that this was a down zoning without looking at a ridge that is a massive up zoning.”

Former Mayor Wally Nichols, who has been gearing up to support the Ellman plan at the polls, said he is pleased with the ruling.

“We applaud the court for ensuring a plan that will reduce density and traffic, and increase open space, becomes a reality,” Nichols said.

“Fountain Hills will be a better community for the decision…and the plan put together by the property owner and the Town Council.”

Don Kile, president of master planned communities for Ellman, was also pleased.

“The response we have received from the Fountain Hills community over the past few weeks has been overwhelming,” Kile said.

“It is clear that the project approved by Town Council…is widely supported.

“The court agreed…with our argument that the language on the petitions was misleading. Accordingly the court ruled…to stop the referendum initiative.”    

Judge’s thoughts

“The court finds that the 100-word descriptions used by (SOS Town) do not meet the requirement of (state statute) to set forth the principal provisions of the General Plan Amendment and the corresponding ordinance,” Burke stated in his ruling.

“The land presently can be developed with 1,750 dwelling units regardless of any referendum. The zoning change reduced the housing density from 1,750 … units to 1,350 … units. The petitions convey the mistaken impression that if the signers object to the rezoning by signing the petitions they can prevent development of the land.

“Not stating that the amendment and the ordinance actually reduce the density of the land use makes the descriptions materially misleading, a practice criticized by our Supreme Court …”

Burke agreed with the position of the SOS Town attorneys that the circulation of petitions is core political speech however, he said cases cited by the intervener failed to support that position.

Both parties involved in the debate asked Burke to rule on their requests for a summary judgment by Monday, July 14, to allow time for an appeal before election materials are prepared for the November election.

Court debate

Attorneys made their arguments to Burke last Friday stating why he should rule in their favor on the action challenging referendum petitions on the Ellman property in Fountain Hills.

Ellman Companies had challenged the referendum petitions cleared by the town by saying circulators had misled the public by making incorrect statements and that “principal provisions” of the council action were not stated in the referendum statement.

Kelly Flood, an attorney for the firm representing Ellman, told Burke that the Save Our Small Town (SOS Town) committee had editorialized to “spin” the facts about the land plan, and therefore misled petition signers.

Flood said the group would have been more accurate to describe the reduction in dwelling units, increase in open space and improved traffic circulation.

The committee is telling people that something happened with regard to the land plan, but does not tell them what happened, according to Flood. She also said the committee asks potential signers “wouldn’t you rather have it developed in an environmentally sensitive manner?

“There is an omission of material fact that creates a misleading impression for voters,” Flood said.

The 100-word description of the council action on the petitions was lacking in information and not compliant with state law, Flood said.

Lisa Hauser, an attorney representing the SOS Town committee acting as an intervener on behalf of the defendants, the Town Council and some staff, argued there is nothing wrong with the petitions.

Hauser said other courts have broadly interpreted the statutes with regard to the descriptive title.

Hauser discussed the legislative history of the statute.

“There was a desire to avoid litigation and entanglements just like this one,” Hauser said.

She added that the Supreme Court has ruled that the legislature can’t enact legislation that inhibits the right of initiative and referendum.

In her brief for the court, Hauser pointed out that the statute would be a violation of the First Amendment of the U.S. Constitution if it permits a court to judge the content of the circulator’s speech.

This is a political debate, Hauser said, and potential petition signers are well aware of the description of the referendum might be a partisan message.