Great news for the Arizona infill development industry, as the long awaited “fix” to the three-quarters vote/supermajority statute (i.e. A.R.S. Section 9-462.04(G)) has finally made its way through the State Legislature and has been signed into law by Governor Ducey. Effective August 9, 2017, it will be more difficult for a handful of opposing neighbors to cause an applicant in a zoning case to garner the requisite minimum number of affirmative votes from any Arizona city or town council. See HB 2116 here.

Approval of a zoning application requires the affirmative vote of a simple majority of a city or town council, which is four affirmative votes in the case of a seven member council and five affirmative votes in the case of the nine member Phoenix City Council. However, under prior law, if the owners of 20 percent of the land area located within 150 feet of any one side of a proposed zoning district timely filed a written legal protest objecting to the pending zoning change, the application could not be approved absent six affirmative votes, in the case of a seven member council, and seven affirmative votes in the city of Phoenix. Prior law was even more onerous because the 150 foot convention was not measured from the edge of the proposed zoning district boundary if the property was adjacent to a public right-of-way (even a freeway). More specifically, the 150 foot distance was measured from the edge of the right-of-way that was “opposite” to the zoning district boundary line. In other words, the public right-of-way was excluded from the 150 foot measurement.

Snell & Wilmer recommended a number of changes to District 17 Representative Jeff Weninger that were included in the final form of HB 2116:

1. Effective August 9, 2017, a written legal protest must be timely filed with the applicable city or town by the owners of 20 percent of all property (by area and number) that is located within 150 feet of all of the boundaries of the proposed zoning district, not just on any one side. Moreover, by adding the phrase “... by area and number of lots, tracts and condominium units ...” to the statute, the opposition must now also take into account all individual lots, tracts and condominium units located within 150 feet of all sides when calculating the 20 percent threshold.
2. Effective August 9, 2017, public rights-of-way will no longer be factored into the 150 foot measurement around the perimeter of the proposed zoning district. However, please keep in mind that, when the property that is the subject of a zoning application is physically adjacent to corresponding city/town public street, the zoning district will typically include one-half of such street. In that case, the 150 feet will be measured from the center line of such street, not from the property line of the proposed project.
3. Effective August 9, 2017, the statute changes the manner in which the three-quarters vote threshold is calculated. More specifically, the statute requires that the three-quarters fraction be rounded to the nearest whole number. In other words, in a city or town that has a seven member council, six of seven affirmative city or town council votes will no longer be required. Instead, it will only take five of seven affirmative votes for the application to be approved. However, with respect to the city of Phoenix, nothing has changed. An applicant will still need seven of nine affirmative city council votes under the three-quarters vote convention.

We expect that all of the cities and towns that currently have ordinances that reflect the former statutory framework will likely amend such ordinances to reflect the new law. However, in the event such changes are not adopted prior to August 9, 2017, we anticipate that city attorneys may opine that the new statutory provisions will supersede the applicable provisions of the local ordinances.