Superior Court of Arizona, County of Coconino

DAN FRAZIER

Representing Self, Pro-Se

P.O. Box 22324

Flagstaff, AZ86002

SUPERIOR COURT OF ARIZONA, COUNTY OF COCONINO

PARTIES, JURISDICTION AND VENUE

1. Plaintiffs Dan R. Frazier and Lisa A. Rayner, husband and wife, are residents and taxpayers of the City of Flagstaff, Coconino County, Arizona. Lisa A. Rayner is a property owner in the City of Flagstaff. Dan Frazier, representing himself and other plaintiffs, is a business owner and political activist with no formal training in the law.
2. Plaintiffs Marlene Rayner and Dennis Rayner, husband and wife, parents of Lisa A. Rayner, are residents of the City of Sedona in Yavapai County, Arizona, but also own property and pay taxes in the City of Flagstaff.
3. DefendantCity of Flagstaff ("Flagstaff") is a political subdivision of the State of Arizona.
4. Defendant Flagstaff is the real party in interest and is made a defendant pursuant to Rule of Procedure for Special Actions 2(a).
5. This court has jurisdiction to hear and determine this Complaint for Special Action and to grant the relief requested by virtue of Article VI, Section 18 of the Arizona Constitution and Rule 4, Rules of Procedure for Special Actions.
6. Plaintiffs do not have an equally plain, speedy, and adequate remedy by any administrative appeal from the action taken by Defendant Flagstaff.
7. Plaintiff Dan R. Frazier notified Flagstaff of his intention to bring this lawsuit via letter dated Sept. 22, 2009, and via oral testimony at the Nov. 17, 2009 Flagstaff City Council meeting, assuming that Flagstaff could not or would not comply with State Law regarding the rezoning ordinance in question. A draft copy of this lawsuit was presented to Flagstaff City Council at the Nov. 17, 2009 Council meeting.
8. Based upon lack of response by the City of Flagstaff, and the subsequent approval of the zoning ordinance in question, Plaintiffs believe that Flagstaff may take the position that Plaintiffs are without any administrative remedy. If Flagstaff agrees that Plaintiffs are entitled to be heard on the merits of one or more administrative appeals, Plaintiffs will agree to a stay of this action during the pendency of this appeal(s).
9. Plaintiffs will suffer irreparable injury and damage unless the requested relief is granted by means of this Special Action.
10. The City of Flagstaff has caused an event to occur in CoconinoCounty out of which this claim arises.

BACKGROUND

1. On Oct. 1, 2003, the Roman Catholic Church of the Diocese of Phoenix (the "Catholic Church") purchased 107 acres of forested property on the southern toe of McMillan Mesa (the "Church Property") in the City of Flagstaff(1600 W. Rt. 66, APN: 107-07-002D).The undeveloped property includes flat land atop the southern toe of McMillan Mesa as well as steep slopes and a small canyon just west of the southern toe of the mesa.McMillan Mesa is a large and beautiful mesa in the center of Flagstaff known for its hiking trails, large grassy expanses, forested areas, and especially for BuffaloPark, located about a mile north of the Church Property.
2. The northern portion of the Church Property is adjacent to a section of the Flagstaff Urban Trail System (the "FUTS Trail"). The FUTS Trail separates the Church Property from a large expanse of undeveloped grassland owned by the City of Flagstaff. The views from the FUTS trail in this area are beautiful in all directions, but especially to the north where the San Francisco Peaks are clearly visible.
3. On July 22, 2009, The San Francisco de Asis Parish (the "Parish"), a subdivision of the Catholic Church,filed an application with the City of Flagstaff requesting to have 28 acres of the Church Property rezoned from Rural Residential ("RR") to High Density Residential ("HR") in order to facilitate the construction of a school and church on the Church Property. These 28 acres comprise the 28 relatively flat acres of Church Property located atop the mesa.
4. The reason for the rezoning request was to allow for the construction of a large church and school on the Church Property, and especially to allow for the 57-foot height of the school.
5. On Aug. 7, 2009, the City of Flagstaff published a notice in the Arizona Daily Sun, a daily newspaper published in Flagstaff, about two Public Hearings that would be held regarding the requested rezoning of the Church Property.
6. The city mailed similar notices to property owners who owned property adjacent to the Church Property.
7. Similar but less detailed notices were also posted at three locations on the perimeter of the Church Property.
8. The first of the two Public Hearings was held on Aug. 26, 2009 before the City of Flagstaff Planning and Zoning Commission. At the conclusion of the Public Hearing, the Planning and Zoning Commission voted six to one to recommend rezoning to the Flagstaff City Council.
9. The second of the two Public Hearings was held on Sept. 15, 2009 before the Flagstaff City Council. At this meeting, a member of the City's Planning and Zoning Department explained to Council that the public notices about the Public Hearings had contained a significant error related to the size of the proposed building project. The staffer said the Planning and Zoning Department felt that the public notices met minimum legal requirements, but recommended that the City of Flagstaff should repeat the public notification process with corrected notices, and hold additional public hearings in the interests of full transparency. Flagstaff City Council decided instead to move forward with the rezoning process without correcting notices or holding more public hearings.
10. On Oct.6, 2009, Flagstaff City Council had a first reading of the rezoning ordinance that would allow for the church and school on McMillan Mesa. Flagstaff City Council voted unanimously to approve the rezoning.
11. On Nov. 17, 2009, Flagstaff City Councilhad a second and final reading of the rezoning ordinance. Flagstaff City Council voted unanimously to approve zoning ordinance 2009-35, effectively rezoning 28 acres of the Church Property on McMillan Mesa.

PUBLIC NOTICES IN VIOLATION OF STATE LAW

NOTICE OF PUBLIC HEARING IN ARIZONA DAILY SUN

1. The Notice of Public Hearing published in the Arizona Daily Sun on Aug. 7, 2009 related to the rezoning of the Church Property did not comply with public notification requirements set forth in A.R.S. §9-462.04.
2. A.R.S. §9-462.04 was interpreted by Specht V. City of Page, 128 Ariz. 593, 627 P.2d 1091 (App.1981). Judge Richard K. Mangum wrote that the rezoning ordinance in that case "should have set forth 'a general explanation' of the ordinance to be considered from which an interested property owner could ascertain in general how and to what extent his property would be affected by the proposed zoning."
3. Upon information and belief, similar or identical notices to that published in the Arizona Daily Sun were mailed to the owners of properties adjacent to the Church Property. These mailed notices were similarly flawed.
4. Specifically, A.R.S. §9-462.04 requires that a public notice provide “a general explanation of the matter to be considered and including a general description of the area affected.”
5. The notice published in the Arizona Daily Sun stated, "The development will include structures totaling approximately 63,300square feet in floor area, parking areas, and related amenities.” In actuality, the square footage for all areas referenced totals roughly 14 acres, or about 609,840 square feet -- nearly ten times more than what was indicated in the published notice.
6. Further, the "general explanation of the matter to be considered" as published in the Arizona Daily Sun failed to explain who had requested the rezoning. There was no mention of the San Francisco de Asis Parish, the Catholic Church, or any individual involved with the project such as the project manager for the church, the priest for the local parish, or the bishop for the local diocese. On this point, the notice said only, "The proposed rezoning will allow for the development of a parish educational complex and church facility."
7. Nor did the notice published in the Arizona Daily Sun give any accurate information whatsoever regarding the size or height of the proposedbuildings, playing fields, parking lots, or other aspects of the proposed Parish building project.
8. Nor did the notice published in the Arizona Daily Sunexplainthat the proposed change in zoning would increase the allowable height of buildings on the Church Property by more than ten per cent.
9. Nor did the notice published in the Arizona Daily Sun explain that the proposed change in zoning would increase the allowable number of buildings and total square footage on the Church Property by more than ten per cent.
10. Nor did the notice published in the Arizona Daily Sun explain that the proposed change in zoning would increase the allowable types of buildings and permitted uses on the Church Property.
11. The crude map included with the notice in the Arizona Daily Sundid not indicate which area of the 28-acre parcel to be rezoned was to be developed, and the map failed to note the existence of a nearby public trail or nearby open space owned by the City of Flagstaff.

NOTICES IN PUBLIC PLACES

1. Notices posted by the City of Flagstaff in public places were much less informative than the Notice of Public Hearing published in the Arizona Daily Sun and thus also were in violation of A.R.S. §9-462.04 for many of the same reasons.The notices, comprised of a pair of 11-inch by 17-inch posters placed side by side, contained fewer than 150 words combined. Notices in public places said nothing about any kind of development or building project, and made no mention of any kind of church or school.
2. Only three notices were publicly posted – one alongside the FUTS trail north of the property, one on a wooden fence along Route 66 nearEnterprise Road and one at the east dead end of E. Ponderosa Parkway. A.R.S. §9-462.04, subd. A, Par. 1suggests that ten notices would have been more appropriate, especially in light of the size of the property to be rezoned.
3. Posted notices in public places were not conspicuous. The notice along Route 66 was posted on a fence running parallel to Route 66 and set back about 20 feet from the road. The notice was partially obscured by trees. The notice placed near the FUTS trail was placed 10 to 15 feet from the trail. This notice was repeatedly vandalized. Stakes supporting the two posters of the notice were knocked over, posters were torn, and at one point one of the posters disappeared for at least a few days, until it was replaced by the City of Flagstaff.
4. Posted notices in public places did not conform to the visibility requirements of A.R.S. §9-462.04, subd. A, Par. 1. The lettering pertaining to the present zoning district classification, the proposed zoning district classification, and the date and the time of the Public Hearing was only three-eighths (3/8) of an inch tall. Letteringof this small size would probably not be visible from a distance of 100 feet as required by law.

ALL CITY RESIDENTS SHOULD HAVE BEEN NOTIFIED BY MAIL

1. A.R.S. §9-462.04, subd. A, Par. 5 suggests that it is appropriate under some circumstances for a municipality to notify all residents of a proposed rezoning. Plaintiffs believe that this is especially appropriate in this case because the Church Property to be rezoned abuts a public trail and publicly owned open space. Under these circumstances, in an era of greatly diminished newspaper readership, it would have been much more in keeping with the spirit of Arizona law to mail notices about the proposed rezoning to every resident of the City of Flagstaff.

STANDING

1. While a challenge to a zoning ordinance mayturn on the question of standing, in this case the question of standing would appear to be moot.Because the public notification process was so deeply flawed, a hypothetical property owner in a neighborhood near the rezoning who might be expected to have the greatest claim to standing never received an adequate "general explanation of the matter to be considered … including a general description of the area affected" as required by A.R.S. §9-462.04. Without such an explanation and description, such a hypothetical individual would not have an opportunity to determine "how and to what extent his property would be affected by the proposed zoning"Specht V. City of Page, 128 Ariz. 593, 627 P.2d 1091 (App.1981). Without proper public notification, those with the greatest claim to standing would be unlikely to raise an objection to the rezoning.
2. Therefore, it would appear to be improper to deny standing to Plaintiffs when the possibility of anyone with greater standing stepping forward has been rendered almost non-existent by the lack of proper public notification. It is worth noting that the Plaintiffs learned of the proposed zoning ordinance not from published or posted notices -- notices that by their lack of relevant detail seemed to be designed so as not to be noticed or attract attention. Plaintiffs are grateful to have learned about the proposed rezoning from an individual who knew about the proposed rezoning. However, the possibility of notification by word of mouth or other interpersonal communication does not relieve the City of Flagstaffof its legal obligation to provide accurate and complete notification that is readily accessible to all Flagstaff residents.
3. There are a variety of concerns that a hypothetical property owner with obvious standing might have. For instance, the proposed school on the Church Property will be about 1,000 feet from houses and apartments in the Ponderosa neighborhood. The school project will include two large playing fields and a playground. The close proximity of the project to a residential neighborhood could prompt concerns about increased noise.
4. The likelihood of increased traffic could also prompt concerns. There will be only two driveways accessing the proposed church and school site. One of these driveways will begin at the east end of Ponderosa Parkway. This means a substantial amount of new traffic can be expected in the Ponderosa neighborhood. The quiet neighborhood is home to many small children and a playground adjacent to Ponderosa Parkway.
5. The 57-foot height of the school, and unspecified height of the church, could prompt concerns about the views in the direction of the proposed church and school. If built according to current plans, the school will be the tallest structure on McMillan Mesa, and 10- to 20- feet taller than most of the trees in the area of the building. The height of the school will make its roof visible from several points in the Ponderosa neighborhood and from several areas of East and West Flagstaff, despite its relatively isolated location in a forested area.
6. The proposed church and school could also prompt concerns about diminish recreational opportunities, especially for residents of the Ponderosa neighborhood. An informal walking trail splits off from the FUTS trail and winds through the Church Property. This informal trail is popular with some residents of nearby neighborhoods, especially residents of the Ponderosa neighborhood. The Ponderosa neighborhood is located less than a quarter-mile west of the informal trail. This trail cuts through the proposed building site, and no accommodation for the trail has been made on site plans.Increased noise and traffic along with diminished views and reduced recreational opportunities arejust a few of the potential concerns that might be voiced by a hypothetical property owner who had the benefit of proper notification.
7. Plaintiffs include individuals who are not hypothetical property owners, and who stand to suffer particularized harm. Lisa A. Rayner, Marlene Rayner and Dennis Rayner own a townhome in the 100 block of East Oak Avenue, less than a mile north-west of the rezoned Church Property. These plaintiffs contend that their property's value will be diminished by the reduced recreational opportunity in their neighborhood caused by the rezoning and the resulting 14-acre church and school building project.
8. Furthermore, the rezoning will diminish the character of Plaintiffs' neighborhood by chipping away at existing open space in the area, and adding large buildings, a parking lot, driveways and other man-made facilities to a treasured area on McMillan Mesa.
9. Plaintiff Dan R. Frazier and his wife Lisa A. Rayner have occasionally enjoyed walking along the FUTS trail in the area of the rezoned Church Property. If the rezoning is allowed to stand, their enjoyment of the trail will be diminished by a large parking lot that approaches within 25 feet of the trail, and by the large church and school buildings that are to be built 300 feet south of the FUTS trail.
10. Plaintiffs Dan R. Frazier and Lisa A. Rayner also have a unique awareness of the flawed rezoning process and the proposed building project on the Church Property. They have both attended rezoning hearings and council meetings and have spoken out repeatedly with their objections to the rezoning. Frazier has written extensively about this matter on his Web site and has also had articles and letters on this topic published in local newspapers.

REQUEST FOR RELIEF