Pima County Superior Court Judge Robert Donfeld ruled in favor of Wal-Mart, which had spent $33,529.50 on a referendum drive to overturn the City Council's ordinance regulating 24-hour big-box superstores. City Clerk Kathy Detrick rejected the petitions last November, saying they did not conform with city regulations.
Wal-Mart then sued the city, arguing that the petitions conformed to state law, which superseded tougher city regulations. Donfeld agreed, ruling that Detrick had to accept the petitions. That leaves the Big Box Ordinance on hold until the voters go to the polls or Donfeld's decision is overruled by a higher court.
"I'm very upset," says Chris Tanz, an El Con neighbor who has been a staunch opponent of allowing big-box stores at the mall. "I think the whole idea of a referendum is a people's initiative in public affairs and it's a totally different thing when it's initiated by a huge corporation."
City Attorney Tom Berning says he'll recommend that the city appeal the ruling.
"There's the issue in front of us and then there's the larger issue in terms of what Judge Donfeld's ruling means for the city overall. My larger concern is the institutional issue of his seemingly placing severe limitations on the powers of chartered cities. I think that issue needs to be considered, as well as the impact on the immediate issue, which is obviously very controversial. But it goes beyond that as far as we're concerned," Berning says.
Berning complains that Donfeld's ruling "went a lot further than the Wal-Mart folks were asking him to. They were essentially saying they thought that the Legislature's recent legislation had pre-empted our ability to act in certain areas in initiatives and referendum. He took the view, I believe, that we had no authority whatsoever to begin with in the area of initiative and referendum."
Berning believes the matter can be directly appealed to the state Supreme Court under an expedited appeal process.
Whether the council will pursue an appeal remains to be seen, although Councilman Steve Leal has already placed the issue on the agenda for next Monday's council meeting.
"There's the issue of El Con, but the larger issue is the city's ability to ensure the integrity of the electoral process," says Leal. "What kind of statement would that be if council members did not support that?"
Even if the council declines to pursue an appeal, neighborhood activists, who joined forces with the city as an intervening party, said they also plan to appeal. Tanz says the appeal will be filed by attorney Ann Graham-Bergin, who has often found herself on the opposite side on the legal fence, fighting to keep referendum efforts on the ballot. Graham-Bergin did not return a phone call seeking comment.
In the meantime, Detrick says the City Clerk's Office, in conjunction with the County Recorder's Office, will begin reviewing the petitions this week. She expects that work will be completed within the next two weeks, unless deficiencies are uncovered.
As long as the review is completed by early March, Detrick says, the issue could be on the ballot as early as the upcoming May bond election or as late as November 2001, depending on the direction of the City Council.
Tanz says her group will also review the petitions to determine if the signatures are valid. They will have 10 days after the petitions are certified to challenge their legitimacy.
With the law on hold while the legal maneuvers play out, El Con may now be able to get permission for a new Home Depot and an additional big box.
"It may be too late to affect El Con," Tanz says. "This is really being done for the sake of other neighborhoods, and I hope that other neighborhoods will join to support an appeal like this, because it's going to cost us money to do an appeal."
Leal continues to support the Big Box Ordinance.
"It was needed and it is needed," Leal says. "I don't mind if these folks want the community's business. It's just a matter of whether the community is going to allow large corporations to control government. Will we become a company town?"