Crusade could bring flurry of zoning referendums

Laveen resident Randy Jones is cruising up 35th Avenue in his pickup truck, a pair of neighbors in the backseat and Toby Keith on the radio, when he spots a sign announcing a possible rezoning.

Most Valley residents shrug at signs like this one, if they see them at all. Jones pulls over like a cop responding to a crime.

"That could be troublesome," says Carol Pacey, a fellow activist, as she whips out a pen and paper. Jones agrees. They scribble down the developer's information.

Jones and his neighbors have been on sign-spotting patrols like this one frequently in recent years, as the fastest-growing part of Phoenix becomes home to ever-denser developments. Afraid that unchecked development would destroy their neighborhood's character, they asked the Phoenix City Council for help. When the council rebuffed them, they took the city to court.

Today, they find themselves at the center of a legal case that will have ramifications statewide. If the neighbors' view prevails, it could result in a flurry of referendums in some of Arizona's largest cities, including Mesa and Tucson, and could affect such decisions as where shopping malls go or whether unpopular budget cuts are adopted.

From Jones' perspective, his story is about how far one neighborhood has gone to protect itself against unwanted development. From the city's perspective, it's a story about how small-scale efforts to preserve neighborhoods raise questions about the Valley's long-term sustainability.

And for both, it's a story about a legal case that could tip the balance of power in zoning cases back to residents.

It's a legal case that, for the moment, Jones is winning.

Deciding to fight

Jones and his neighbors moved to Laveen's low-scale subdivisions in hopes of finding a suburban life near the heart of the Valley, where they could enjoy large, affordable homes a few miles southwest of downtown Phoenix.

"We had the opportunity to buy a brand-new home we could afford, and we had a view of downtown," Pacey says. "The potential to make this as wonderful as other areas of Phoenix is huge."

But as they settled into their quarter-acre lots, market forces began demanding higher density. The Valley real-estate market took off, and developers pushed for more units per acre. The Phoenix City Council largely acquiesced, approving 18 amendments to the area's general plan in the past nine years.

Then Paul Johnson, a former Phoenix mayor, proposed taking a mostly vacant 27-acre parcel a few blocks east of Jones' home and building 517 apartments and townhouses on it.

The property was zoned for one house to the acre. It abuts a two-lane road where the speed limit, when two nearby schools are in session, is 15 mph. And the nearby intersection of 27th and Southern avenues, which provides access to downtown Phoenix, is still controlled by stop signs.

Schools in the neighborhood already were overcrowded, and residents were concerned about the police's ability to keep up with calls for service. Where were all these new people going to go?

"They've done so much building in Laveen that the infrastructure has not kept up," says Jones, an auditor who had no previous involvement in civic affairs.

Despite a resident outcry and opposition from Michael Nowakowski, the councilman who had just been elected to represent the district, the council approved the rezoning 7-1 on Dec. 19.

In most controversial zoning cases, the story ends there. The council approves the rezoning, and the neighbors go home. The project gets built, and the neighbors learn to live with it or move.

But Jones and his neighbors decided to fight. They collected signatures in an effort to send the case to a referendum, turning in several thousand to the Phoenix City Clerk.

Phoenix said the group lacked enough signatures to send the issue to the ballot. Jones pressed the issue, saying Phoenix's charter conflicted with Arizona law.

Earlier this year, he took Phoenix to court. And won.

Debating density

As a former mayor, Paul Johnson is familiar with residents' arguments against high-density developments.

"They feel that any time you have additional density, that it means a lower quality," he says one morning over coffee at Biltmore Fashion Park. "The counter to that is this."

Johnson gestures across Camelback Road to the high-rise apartments and townhomes near 24th Street.

"I look out across the street, and there's a lot of density there," he says. "But I'm also sitting in a pretty nice cafe. I have a nice place to sit. And there's a lot of other people here who think it's a nice place."

Where Jones and his neighbors see density as the problem, Johnson sees it as a solution.

For Johnson, the discussion about development in the Valley begins with population projections. By 2025, Maricopa County's population is expected to double to 7 million people.

"It's not a question of, are they coming?" Johnson says. "It's, where are they going to go?"

Affluent residents will always be able to afford homes close to their jobs. But what about the teachers, the firefighters, the police officers? They have starting salaries between $30,000 and $40,000, and can afford homes between $160,000 and $200,000.

One option is to buy in the fringes of the Valley: Maricopa, Florence, the White Tank Mountains. But high gas prices have made that daily 80-mile round-trip commute all but impossible on a teacher's salary.

"The people who can least afford it - we're pushing them the farthest out," Johnson says. "To me the question is, how do you get the single biggest part of the market close to where they work?"

Given how many people are expected to move here, answering that question could prove lucrative to developers like Johnson.

Since leaving the Mayor's Office in 1994, Johnson has invested heavily in real estate. His company Web site describes him as the founder of several multimillion-dollar companies.

In 2005, Johnson launched Berkana Homes, hoping to bring affordable housing to the center of the Valley.

The first Berkana development opened last year at Interstate 17 and Glenrosa Avenue, with 54 units starting at $200,000.

He hoped to build a similar, albeit larger, version of that project in Laveen.

Johnson and his firm, Old World Communities, spent more than six months working with neighbors in an effort to reach an agreement on the layout. About 20 site plans were presented in an effort to build consensus.

When Phoenix approved the project, council members praised Johnson for his focus on building homes that would be affordable to young families.

Then Jones launched his referendum drive, and the project was thrown into doubt.

The case against Phoenix

Jones' legal case against the city - and, by extension, the ease with which higher-density projects will be built in some large Arizona cities - hinges on how many signatures are needed to force a referendum.

Phoenix's charter says a resident needs a number of signatures equal to 10 percent of the total number of votes cast in the most recent mayoral election. In this case, that would be 9,798 signatures.

Jones argues that the Phoenix charter conflicts with state law, which says a resident needs signatures equal to 10 percent of the votes cast in the last election "at which a mayor or councilmen were chosen."

Phoenix approved the Laveen case shortly after a runoff election in which two council members were elected. Turnout was much lower in that election because only residents of the two council districts in which candidates were running were eligible to vote.

Using the runoff turnout as a standard, Jones would need only 2,727 signatures to qualify for the ballot - less than one-third as many as Phoenix required. He turned in about 7,500.

In April, a Maricopa County Superior Court judge sided with Jones. If upheld, the judge's ruling would allow Jones' referendum to go forward and add a confusing new wrinkle to the referendum process.

In essence, for cities that elect their councils by district, the threshold for how many signatures are needed to refer a question to the ballot would depend on which offices were contested in the most recent election.

If it were a mayoral election with high turnout, the threshold would remain much like it is today. But if the most recent election were a council election or runoff, the threshold could be much lower.

The ruling would affect at least two other large Arizona cities, Mesa and Tucson, that elect their councils by district and have language similar to Phoenix's in their charters.

The case has elected officials on tenterhooks.

"It's zoning by initiative now, if that holds," Mayor Phil Gordon said.

The Arizona Court of Appeals heard oral arguments in the case Sept. 24. A ruling could come at any time.

Political scientists say that if Jones succeeds, controversial cases will be much more likely to be referred to the ballot.

"Lowering the threshold could certainly lead to more successful drives, especially for grass-roots campaigns that don't . . . have the backing of a big money group," said Miki Kittilson, who studies citizen participation in democracies at Arizona State University.

An age-old dilemma

To date, Jones and his neighbors have spent about $75,000 in legal fees fighting Phoenix on the Berkana case. Jones says he will mortgage his house if the case is appealed to the Arizona Supreme Court.

Johnson says he respects the Laveen neighbors' opinion that density reduces quality of life. But he worries that, over the long term, residents' opposition will cause the core of the city to stagnate and die.

Forcing people to drive 30 miles to work increases air pollution and dependence on foreign oil, he says. And traffic will get worse regardless of whether new residents move in next door or a few miles away.

"Each one of these cumulative decisions add up to a big decision," Johnson says. "Unless something changes, we're going to have two decades of urban sprawl."

For the most part, it has been up to city councils to decide how much density one neighborhood can tolerate. If Jones is successful, they could lose some of that power.

"It speaks to the age-old dilemma of representative democracy versus direct democracy," said Paul Lewis, an assistant professor of political science at ASU. "There's always an issue with land use because what might be in the overall interest of the city might still be seen as a detriment to its immediate neighborhood."

For now, the Berkana project in Laveen appears finished. The legal wrangling over the signatures dragged on long enough that the property has fallen out of escrow.

The owners are looking to sell to other buyers, and Johnson is now developing projects elsewhere in Phoenix.

But even as the Valley's housing market has slowed, demographers still predict huge population increases. For developers of infill projects, life might be about to become much more difficult.

"This case may become an icon for it," Johnson says. "At the end of the day, this is a much bigger issue that people need to think about: What do I want my city to be?"

Randy Jones (left) stands with a group of supporters in his neighborhood in Laveen. The group of neighbors oppose high-density rezoning for apartments and want to preserve a more suburban way of life.