Justices Could Decide If Residents Must Be Harmed Before Suing To Protect Against Government Threats

Justices Could Decide If Residents Must Be Harmed Before Suing To Protect Against Government Threats

By Terri Jo Neff |

If government officials threaten to force you from your home because of a zoning violation, should you be able to seek a court order blocking the forced removal? Or must you wait until you are actually homeless to fight back?

That is a question the Arizona Supreme Court could consider next year, in a case out of Sierra Vista that has garnered the attention of the Goldwater Institute and private property advocates across the state.

Among the plaintiffs are several longtime city residents of a mobile home park who filed a lawsuit in early 2021 arguing that city zoning officials should not be allowed to force them to move the recreational vehicles (RVs) they live in and that anti-RV ordinances violate their constitutional rights.

A Cochise County judge and the Arizona Court of Appeals ruled there is nothing that can be done in advance to stop the city from enforcing the ordinance. The lawsuit can only proceed if the city actually moves forward with making the residents leave, according to the court rulings.

The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation took issue with the city’s position as well as the legal reasoning of the judge and appellate court. The organization has filed an amicus (friend-of-the-court) brief asking the Arizona Supreme Court to hear the case which the RVers are appealing.

Timothy Sandefur, attorney for the Institute, notes that prospective injunctive or declaratory relief against a threatened future unconstitutional government act “is a routine procedure.” As such, the amicus brief asks the justices to order the requested injunction to protect the residents.

“This case is like a hypothetical situation in which a plaintiff files a lawsuit for an injunction to prevent a defendant from converting her personal property, or building a factory that will pollute her land, and the superior court tells her the case is unripe because no theft or pollution has yet occurred—before adding, ‘come back after your property has been stolen or ruined,’” Sandefur wrote.

Under city zoning definitions, RVs are considered temporary shelters that are not allowed as permanent residences in a manufactured home subdivision. RVs are, however, permitted as permanent residences in up to 30 percent of the total spaces in a manufactured home park.

The 160-lot Cloud 9 property involved in the dispute is considered a manufactured home subdivision despite being called a mobile home park for decades. In July 2020, a notice of non-compliance gave several residents, including Amanda Root, 30 days to remove their RVs despite the fact most had lived at Cloud 9 for years and did not have funds to move elsewhere.

The city agreed to take no action on the zoning order while attorneys for the residents and the city attempted to resolve the matter. But in February 2021, the city council rejected a proposed amendment which would have allowed Root and the other impacted residents to continue living in RVs at their current locations.

A lawsuit was filed a short time later seeking an injunction preventing the city from enforcing any evictions while the case was litigated. The city’s twofold argument contended the restrictive ordinances related to RVs are constitutional and that there is no legal basis for a court injunction at that time.

Judge David Thorn of the Cochise County Superior Court denied the injunction, pointing out there was no “injury” caused by the threats of enforcement. The Arizona Court of Appeals also passed on hearing the case due to no showing of actual harm, although the appellate court noted there could be harm in the future.

The Arizona Supreme Court will decide in early 2023 whether to hear the case or to leave in place Thorn’s decision that nothing can be done until Sierra Vista officials try to enforce the zoning violations.

Bill To Ban County Recorders From Voter Registration Drives On Private Property Hits Speed Bump

Bill To Ban County Recorders From Voter Registration Drives On Private Property Hits Speed Bump

By Terri Jo Neff |

A bill to limit the state’s 15 county recorders to participating in voter registration events only on government-owned locations appears to have died following pushback from election officials, including Arizona Secretary of State Katie Hobbs.

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SB1358 would amend state law to ban county recorders, who are elected to office, from engaging in voter registration events at any “location, facility or property” that is not government owned. However, the bill introduced by Sen. Michelle Ugenti-Rita (R-LD23) has been mired in the Senate since Feb. 24.

ARS 16-134 currently requires a county recorders to make voter registration forms available free of charge at locations “throughout the county such as government offices, fire stations, public libraries and other locations open to the general public.” It also requires recorders to provide a voter registration form to any qualified person who makes such a request.

For years county recorders have utilized large-attendance events to help reach as many new voters as possible to maximize the return of their time and expense.

But Ugenti-Rita’s would restrict the elected county recorders from conducting voter registration activities at places like churches and synagogues, nursing homes, private colleges, homeowner association centers, American Legion halls, even shopping malls. And if the local county fair is held at property owned by a nonprofit group instead of the county, then that would be a no-no as well.

“I have seen where we’ve had a recorder who likes to frequent certain kinds of events at the exclusion of others,” Ugenti-Rita said during a meeting of the Senate Committee on Government, which she chairs. “We want to make sure we’re hitting all voters and not just setting up voter registration at certain events that may more align with our political views than others.”

Even if SB1358 were to pass out of the Senate its prospects for passing the House are uncertain due to strong opposition from the majority of the elected county recorders as well as the Arizona Association of Counties.