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									     DAN FRAZIER
1    Representing Self, Pro-Se
     P.O. Box 22324
2    Flagstaff, AZ 86002


     DAN R. FRAZIER and LISA A. RAYNER,             Case No.:
6    each of whom are residents of Coconino County
     and taxpayers. LISA A. RAYNER is also a        COMPLAINT FOR SPECIAL ACTION
7    property owner in the City of Flagstaff.
     MARLENE and DENNIS RAYNER, each of              DRAFT
8    whom are residents of Yavapai County, but who
     also own property and pay taxes in the City of
9    Flagstaff.
10                 Plaintiffs,

11           vs.
     CITY OF FLAGSTAFF, a political subdivision
12   of the State of Arizona,
13                 Defendant

14                               PARTIES, JURISDICTION AND VENUE

15      1. Plaintiffs Dan R. Frazier and Lisa A. Rayner, husband and wife, are residents and

16          taxpayers of the City of Flagstaff, Coconino County, Arizona. Lisa A. Rayner is a

17          property owner in the City of Flagstaff. Dan Frazier, representing himself and other

18          plaintiffs, is a business owner and political activist with no formal training in the law.

19      2. Plaintiffs Marlene Rayner and Dennis Rayner, husband and wife, parents of Lisa A.

20          Rayner, are residents of the City of Sedona in Yavapai County, Arizona, but also own

21          property and pay taxes in the City of Flagstaff.

22      3. Defendant City of Flagstaff ("Flagstaff") is a political subdivision of the State of Arizona.

23      4. Defendant Flagstaff is the real party in interest and is made a defendant pursuant to Rule

24          of Procedure for Special Actions 2(a).


1    5. This court has jurisdiction to hear and determine this Complaint for Special Action and to

2       grant the relief requested by virtue of Article VI, Section 18 of the Arizona Constitution

3       and Rule 4, Rules of Procedure for Special Actions.

4    6. Plaintiffs do not have an equally plain, speedy, and adequate remedy by any

5       administrative appeal from the action taken by Defendant Flagstaff.

6    7. Plaintiff Dan R. Frazier notified Flagstaff of his intention to bring this lawsuit via letter

7       dated Sept. 22, 2009, and via oral testimony at the Nov. 17, 2009 Flagstaff City Council

8       meeting, assuming that Flagstaff could not or would not comply with State Law

9       regarding the rezoning ordinance in question. A draft copy of this lawsuit was presented

10      to Flagstaff City Council at the Nov. 17, 2009 Council meeting.

11   8. Based upon lack of response by the City of Flagstaff, and the subsequent approval of the

12      zoning ordinance in question, Plaintiffs believe that Flagstaff may take the position that

13      Plaintiffs are without any administrative remedy. If Flagstaff agrees that Plaintiffs are

14      entitled to be heard on the merits of one or more administrative appeals, Plaintiffs will

15      agree to a stay of this action during the pendency of this appeal(s).

16   9. Plaintiffs will suffer irreparable injury and damage unless the requested relief is granted

17      by means of this Special Action.

18   10. The City of Flagstaff has caused an event to occur in Coconino County out of which this

19      claim arises.

20                                        BACKGROUND

21   11. On Oct. 1, 2003, the Roman Catholic Church of the Diocese of Phoenix (the "Catholic

22      Church") purchased 107 acres of forested property on the southern toe of McMillan Mesa

23      (the "Church Property") in the City of Flagstaff (1600 W. Rt. 66, APN: 107-07-002D).

24      The undeveloped property includes flat land atop the southern toe of McMillan Mesa as

25      well as steep slopes and a small canyon just west of the southern toe of the mesa.

1       McMillan Mesa is a large and beautiful mesa in the center of Flagstaff known for its

2       hiking trails, large grassy expanses, forested areas, and especially for Buffalo Park,

3       located about a mile north of the Church Property.

4    12. The northern portion of the Church Property is adjacent to a section of the Flagstaff

5       Urban Trail System (the "FUTS Trail"). The FUTS Trail separates the Church Property

6       from a large expanse of undeveloped grassland owned by the City of Flagstaff. The views

7       from the FUTS trail in this area are beautiful in all directions, but especially to the north

8       where the San Francisco Peaks are clearly visible.

9    13. On July 22, 2009, The San Francisco de Asis Parish (the "Parish"), a subdivision of the

10      Catholic Church, filed an application with the City of Flagstaff requesting to have 28

11      acres of the Church Property rezoned from Rural Residential ("RR") to High Density

12      Residential ("HR") in order to facilitate the construction of a school and church on the

13      Church Property. These 28 acres comprise the 28 relatively flat acres of Church Property

14      located atop the mesa.

15   14. The reason for the rezoning request was to allow for the construction of a large church

16      and school on the Church Property, and especially to allow for the 57-foot height of the

17      school.

18   15. On Aug. 7, 2009, the City of Flagstaff published a notice in the Arizona Daily Sun, a

19      daily newspaper published in Flagstaff, about two Public Hearings that would be held

20      regarding the requested rezoning of the Church Property.

21   16. The city mailed similar notices to property owners who owned property adjacent to the

22      Church Property.

23   17. Similar but less detailed notices were also posted at three locations on the perimeter of

24      the Church Property.


1    18. The first of the two Public Hearings was held on Aug. 26, 2009 before the City of

2       Flagstaff Planning and Zoning Commission. At the conclusion of the Public Hearing, the

3       Planning and Zoning Commission voted six to one to recommend rezoning to the

4       Flagstaff City Council.

5    19. The second of the two Public Hearings was held on Sept. 15, 2009 before the Flagstaff

6       City Council. At this meeting, a member of the City's Planning and Zoning Department

7       explained to Council that the public notices about the Public Hearings had contained a

8       significant error related to the size of the proposed building project. The staffer said the

9       Planning and Zoning Department felt that the public notices met minimum legal

10      requirements, but recommended that the City of Flagstaff should repeat the public

11      notification process with corrected notices, and hold additional public hearings in the

12      interests of full transparency. Flagstaff City Council decided instead to move forward

13      with the rezoning process without correcting notices or holding more public hearings.

14   20. On Oct. 6, 2009, Flagstaff City Council had a first reading of the rezoning ordinance that

15      would allow for the church and school on McMillan Mesa. Flagstaff City Council voted

16      unanimously to approve the rezoning.

17   21. On Nov. 17, 2009, Flagstaff City Council had a second and final reading of the rezoning

18      ordinance. Flagstaff City Council voted unanimously to approve zoning ordinance 2009-

19      35, effectively rezoning 28 acres of the Church Property on McMillan Mesa.



22   22. The Notice of Public Hearing published in the Arizona Daily Sun on Aug. 7, 2009 related

23      to the rezoning of the Church Property did not comply with public notification

24      requirements set forth in A.R.S. § 9-462.04.


1    23. A.R.S. § 9-462.04 was interpreted by Specht V. City of Page, 128 Ariz. 593, 627 P.2d

2       1091 (App.1981). Judge Richard K. Mangum wrote that the rezoning ordinance in that

3       case "should have set forth 'a general explanation' of the ordinance to be considered from

4       which an interested property owner could ascertain in general how and to what extent his

5       property would be affected by the proposed zoning."

6    24. Upon information and belief, similar or identical notices to that published in the Arizona

7       Daily Sun were mailed to the owners of properties adjacent to the Church Property. These

8       mailed notices were similarly flawed.

9    25. Specifically, A.R.S. § 9-462.04 requires that a public notice provide “a general

10      explanation of the matter to be considered and including a general description of the area

11      affected.”

12   26. The notice published in the Arizona Daily Sun stated, "The development will include

13      structures totaling approximately 63,300 square feet in floor area, parking areas, and

14      related amenities.” In actuality, the square footage for all areas referenced totals roughly

15      14 acres, or about 609,840 square feet -- nearly ten times more than what was indicated in

16      the published notice.

17   27. Further, the "general explanation of the matter to be considered" as published in the

18      Arizona Daily Sun failed to explain who had requested the rezoning. There was no

19      mention of the San Francisco de Asis Parish, the Catholic Church, or any individual

20      involved with the project such as the project manager for the church, the priest for the

21      local parish, or the bishop for the local diocese. On this point, the notice said only, "The

22      proposed rezoning will allow for the development of a parish educational complex and

23      church facility."



1    28. Nor did the notice published in the Arizona Daily Sun give any accurate information

2       whatsoever regarding the size or height of the proposed buildings, playing fields, parking

3       lots, or other aspects of the proposed Parish building project.

4    29. Nor did the notice published in the Arizona Daily Sun explain that the proposed change in

5       zoning would increase the allowable height of buildings on the Church Property by more

6       than ten per cent.

7    30. Nor did the notice published in the Arizona Daily Sun explain that the proposed change in

8       zoning would increase the allowable number of buildings and total square footage on the

9       Church Property by more than ten per cent.

10   31. Nor did the notice published in the Arizona Daily Sun explain that the proposed change in

11      zoning would increase the allowable types of buildings and permitted uses on the Church

12      Property.

13   32. The crude map included with the notice in the Arizona Daily Sun did not indicate which

14      area of the 28-acre parcel to be rezoned was to be developed, and the map failed to note

15      the existence of a nearby public trail or nearby open space owned by the City of

16      Flagstaff.

17                               NOTICES IN PUBLIC PLACES

18   33. Notices posted by the City of Flagstaff in public places were much less informative than

19      the Notice of Public Hearing published in the Arizona Daily Sun and thus also were in

20      violation of A.R.S. § 9-462.04 for many of the same reasons. The notices, comprised of a

21      pair of 11-inch by 17-inch posters placed side by side, contained fewer than 150 words

22      combined. Notices in public places said nothing about any kind of development or

23      building project, and made no mention of any kind of church or school.

24   34. Only three notices were publicly posted – one alongside the FUTS trail north of the

25      property, one on a wooden fence along Route 66 near Enterprise Road and one at the east

1       dead end of E. Ponderosa Parkway. A.R.S. § 9-462.04, subd. A, Par. 1 suggests that ten

2       notices would have been more appropriate, especially in light of the size of the property

3       to be rezoned.

4    35. Posted notices in public places were not conspicuous. The notice along Route 66 was

5       posted on a fence running parallel to Route 66 and set back about 20 feet from the road.

6       The notice was partially obscured by trees. The notice placed near the FUTS trail was

7       placed 10 to 15 feet from the trail. This notice was repeatedly vandalized. Stakes

8       supporting the two posters of the notice were knocked over, posters were torn, and at one

9       point one of the posters disappeared for at least a few days, until it was replaced by the

10      City of Flagstaff.

11   36. Posted notices in public places did not conform to the visibility requirements of A.R.S. §

12      9-462.04, subd. A, Par. 1. The lettering pertaining to the present zoning district

13      classification, the proposed zoning district classification, and the date and the time of the

14      Public Hearing was only three-eighths (3/8) of an inch tall. Lettering of this small size

15      would probably not be visible from a distance of 100 feet as required by law.


17   37. A.R.S. § 9-462.04, subd. A, Par. 5 suggests that it is appropriate under some

18      circumstances for a municipality to notify all residents of a proposed rezoning. Plaintiffs

19      believe that this is especially appropriate in this case because the Church Property to be

20      rezoned abuts a public trail and publicly owned open space. Under these circumstances,

21      in an era of greatly diminished newspaper readership, it would have been much more in

22      keeping with the spirit of Arizona law to mail notices about the proposed rezoning to

23      every resident of the City of Flagstaff.



1                                            STANDING

2    38. While a challenge to a zoning ordinance may turn on the question of standing, in this case

3       the question of standing would appear to be moot. Because the public notification process

4       was so deeply flawed, a hypothetical property owner in a neighborhood near the rezoning

5       who might be expected to have the greatest claim to standing never received an adequate

6       "general explanation of the matter to be considered … including a general description of

7       the area affected" as required by A.R.S. § 9-462.04. Without such an explanation and

8       description, such a hypothetical individual would not have an opportunity to determine

9       "how and to what extent his property would be affected by the proposed zoning" Specht

10      V. City of Page, 128 Ariz. 593, 627 P.2d 1091 (App.1981). Without proper public

11      notification, those with the greatest claim to standing would be unlikely to raise an

12      objection to the rezoning.

13   39. Therefore, it would appear to be improper to deny standing to Plaintiffs when the

14      possibility of anyone with greater standing stepping forward has been rendered almost

15      non-existent by the lack of proper public notification. It is worth noting that the Plaintiffs

16      learned of the proposed zoning ordinance not from published or posted notices -- notices

17      that by their lack of relevant detail seemed to be designed so as not to be noticed or

18      attract attention. Plaintiffs are grateful to have learned about the proposed rezoning from

19      an individual who knew about the proposed rezoning. However, the possibility of

20      notification by word of mouth or other interpersonal communication does not relieve the

21      City of Flagstaff of its legal obligation to provide accurate and complete notification that

22      is readily accessible to all Flagstaff residents.

23   40. There are a variety of concerns that a hypothetical property owner with obvious standing

24      might have. For instance, the proposed school on the Church Property will be about 1,000

25      feet from houses and apartments in the Ponderosa neighborhood. The school project will

1       include two large playing fields and a playground. The close proximity of the project to a

2       residential neighborhood could prompt concerns about increased noise.

3    41. The likelihood of increased traffic could also prompt concerns. There will be only two

4       driveways accessing the proposed church and school site. One of these driveways will

5       begin at the east end of Ponderosa Parkway. This means a substantial amount of new

6       traffic can be expected in the Ponderosa neighborhood. The quiet neighborhood is home

7       to many small children and a playground adjacent to Ponderosa Parkway.

8    42. The 57-foot height of the school, and unspecified height of the church, could prompt

9       concerns about the views in the direction of the proposed church and school. If built

10      according to current plans, the school will be the tallest structure on McMillan Mesa, and

11      10- to 20- feet taller than most of the trees in the area of the building. The height of the

12      school will make its roof visible from several points in the Ponderosa neighborhood and

13      from several areas of East and West Flagstaff, despite its relatively isolated location in a

14      forested area.

15   43. The proposed church and school could also prompt concerns about diminish recreational

16      opportunities, especially for residents of the Ponderosa neighborhood. An informal

17      walking trail splits off from the FUTS trail and winds through the Church Property. This

18      informal trail is popular with some residents of nearby neighborhoods, especially

19      residents of the Ponderosa neighborhood. The Ponderosa neighborhood is located less

20      than a quarter-mile west of the informal trail. This trail cuts through the proposed

21      building site, and no accommodation for the trail has been made on site plans. Increased

22      noise and traffic along with diminished views and reduced recreational opportunities are

23      just a few of the potential concerns that might be voiced by a hypothetical property owner

24      who had the benefit of proper notification.


1    44. Plaintiffs include individuals who are not hypothetical property owners, and who stand to

2       suffer particularized harm. Lisa A. Rayner, Marlene Rayner and Dennis Rayner own a

3       townhome in the 100 block of East Oak Avenue, less than a mile north-west of the

4       rezoned Church Property. These plaintiffs contend that their property's value will be

5       diminished by the reduced recreational opportunity in their neighborhood caused by the

6       rezoning and the resulting 14-acre church and school building project.

7    45. Furthermore, the rezoning will diminish the character of Plaintiffs' neighborhood by

8       chipping away at existing open space in the area, and adding large buildings, a parking

9       lot, driveways and other man-made facilities to a treasured area on McMillan Mesa.

10   46. Plaintiff Dan R. Frazier and his wife Lisa A. Rayner have occasionally enjoyed walking

11      along the FUTS trail in the area of the rezoned Church Property. If the rezoning is

12      allowed to stand, their enjoyment of the trail will be diminished by a large parking lot

13      that approaches within 25 feet of the trail, and by the large church and school buildings

14      that are to be built 300 feet south of the FUTS trail.

15   47. Plaintiffs Dan R. Frazier and Lisa A. Rayner also have a unique awareness of the flawed

16      rezoning process and the proposed building project on the Church Property. They have

17      both attended rezoning hearings and council meetings and have spoken out repeatedly

18      with their objections to the rezoning. Frazier has written extensively about this matter on

19      his Web site http://carryabigsticker.com/news/catholic_church.htm and has also had

20      articles and letters on this topic published in local newspapers.

21                                  REQUEST FOR RELIEF

22   1. Because the City of Flagstaff failed to comply with A.R.S. § 9-462.04 regarding public

23      notification, plaintiffs ask this court to invalidate City of Flagstaff ordinance 2009-35,

24      ruling the rezoning process invalid ab initio.


1    2. Since the actions of the City of Flagstaff were illegal, and thus void, they must be set

2       aside and the rezoning process redone in accordance with all applicable State and local

3       laws. New and corrected Public Notices should be published, and additional public

4       hearings should be held if the Parish desires that the Church Property be rezoned.

5    3. Grant a stay of site and building construction and/or development during the pendency of

6       that portion of this legal action that is necessary to determine whether the actions of the

7       Flagstaff City Council were done in conformity with State statutory provisions. Prohibit

8       the issuance of a Conditional Use Permit or other City-issued permits related to the

9       Church Property while this matter is pending before the court. Postpone the effective date

10      of any related Development Agreement(s) involving the Church Property until the

11      proposed rezoning is done in conformity with State statutory provisions.

12   4. Considering that the Flagstaff City Council adopted zoning ordinance 2009-35 despite

13      being repeatedly warned of statutory shortcomings in the public notification process, and

14      rejected the advice of City staff to repeat the public notification process, grant such and

15      further relief that this Court deems just and proper.

16                                                 Dated this 1st day of December, 2009
17                                                               By
                                                                      Dan Frazier
18                                                                    Representing Self, Pro-Se
                                                                      P.O. Box 22324
19                                                                    Flagstaff, AZ 86002







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