IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

VOICE OF SURPRISE, et al., Plaintiffs/Appellants,

v.

SKIP HALL, et al., Defendants/Appellees.

No. 1 CA-CV 23-0698 EL

Appeal from the Superior Court in Maricopa County

No. CV 2022-013360

The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Timothy A. La Sota, PLC, Phoenix

By Timothy A. La Sota

Counsel for Plaintiffs/Appellants/Cross-Appellees

Voice of Surprise and Quintus Schulzke

City of Surprise, Surprise

By Robert W. Wingo, Melinda A. Bird

Counsel for Defendants/Appellees City of Surprise; Mayor Skip Hall; 

Councilpersons Patrick Duffy, Chris Judd, Nick Haney, Aly Cline, Jack Hastings, 

and Ken Remley; and City Clerk Kristi Passarelli

Berry Riddell LLC, Scottsdale

By Jeffrey D. Gross, Michael W. Zimmerman

Counsel for Defendant/Appellee Truman Ranch 46 SWC, LLC

FILED 1-31-2024
2

Gammage & Burnham, Phoenix

By Cameron C. Artigue, Jacqueline Marzocca

Counsel for Defendant/Appellee/Cross-Appellant Dominium Inc.

League of Arizona Cities and Towns, Phoenix

By Nancy L. Davidson

Counsel for Amicus Curiae League of Arizona Cities and Towns

OPINION

Acting Presiding Judge Kent E. Cattani delivered the opinion of the Court, 

in which Judge Anni Hill Foster and Judge Daniel J. Kiley joined.

C A T T A N I, Judge:

¶1 This is the second round of expedited appeals in this 

referendum matter concerning a City of Surprise ordinance challenged by 

Voice of Surprise, a political action committee.

1 In the first appeal, the 

Arizona Supreme Court held that VOS’s referendum petitions were invalid 

due to a technical application error, but also that the City Clerk lacked 

authority to reject the petitions on this basis. Voice of Surprise v. Hall (Voice 

II), 255 Ariz. 510, 516, 519, ¶¶ 26, 35 (2023). Because Developers had also 

contested the validity of the petitions, the Arizona Supreme Court 

remanded for the superior court to address VOS’s potential equitable 

defenses to a private party’s (rather than the City’s) challenge as well as any 

alternative grounds for challenging the petition. Id. at 519, ¶¶ 36–38.

¶2 On remand, the superior court enjoined transmittal of the 

referendum petitions for certification or placement of the referendum on 

the ballot on multiple bases. The court (1) determined that the matter 

sought to be referred was a non-referable administrative (not legislative) 

act and (2) rejected VOS’s laches defense to Developers’ claims that the 

petitions were invalid due to the application error.

1 For ease of reference throughout this opinion, the parties involved 

are: Voice of Surprise and its chairman (collectively, “VOS”), the 

referendum proponents; the City of Surprise, the City Clerk, and other City 

officials (collectively, the “City”); and developers Dominium, Inc. and 

Truman Ranch 46 SWC LLC (collectively, “Developers”), the real parties in 

interest.
VOICE, et al. v. HALL, et al.

Opinion of the Court

3

¶3 We hold that, because the ordinance to be referred merely 

implemented land use policy established years before, the ordinance was a 

non-referable administrative act. Accordingly, and for reasons that follow, 

we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶4 This case involves a referendum effort relating to the Surprise 

City Council’s 2022 passage of Ordinance 2022-18, which approved a 

preliminary development plan for a large swath of property Developers 

want to develop. Although the proposed referendum focuses on the 2022

action, the City’s underlying actions involving this property date back to 

2008.

¶5 At that time, the City undertook a series of interlocking steps

aimed toward establishing a planned development on the property with a 

mix of residential as well as office, retail, and restaurant uses. First, the City 

adopted an amendment to its General Plan 2020 changing the property’s 

land use designation from low-density residential to mixed use. See

Resolution 08-104 (adopting GPA08-019). The City then annexed the 

property, which had previously been part of a county island. See Ordinance 

08-31. When annexed, the property was placed into Surprise’s singlefamily residential (R1-43) and general commercial (C-3) zones, consistent 

with its prior zoning as county land. The next month, in September 2008, 

the City adopted Ordinance 08-37, which approved a planned area 

development (“PAD”) application for the property.

¶6 As approved, the PAD designation incorporated Surprise’s 

neighborhood commercial (C-1), community commercial (C-2), and mixed 

use planned development (MU-PD) zoning districts under the zoning code 

in effect at the time.2 See Old Code §§ 125-155(b)–(c), -186 (MU-PD), -187 

(C-1), -188 (C-2). It also contained a variety of detailed requirements 

involving overall design standards, including building height restrictions 

and architectural criteria, designated setbacks and parking needs, as well 

as specifications for landscaping, lighting, and signage.

¶7 Although the Old Code contemplated consideration of a 

preliminary development plan as part of PAD approval, see Old Code § 125-

35(c)–(d), the PAD application did not include, and the City did not then 

approve, a preliminary development plan for the property. The Old Code 

2 Surprise’s zoning code has since been amended, but all parties agree 

that the code in effect in 2008 (“Old Code”) governs here.
VOICE, et al. v. HALL, et al.

Opinion of the Court

4

likewise contemplated a concurrent determination of allowable residential 

density for the PAD property. See Old Code §§ 125-194(b)(5)(b.) (criteria for 

the city council’s determination of reasonableness of densities in a PAD), 

-35(g)(2) (characterizing an increase in density as a “[m]ajor change[]” to a 

previously approved PAD); see also Old Code § 125-186(b)(2) (requiring 

allowable density in an MU zoning district be determined at the time of 

rezoning). Nevertheless, the City did not expressly consider or decide a 

specific allowable residential density as part of the 2008 PAD approval.

¶8 Regardless, the PAD zoning went into effect in October 2008. 

But development did not then proceed, and the land remained vacant for 

years. Eventually, in December 2021, Developers submitted a preliminary 

development plan for “a master-planned, horizontal mixed-use 

development integrating residential uses with commercial activities, such 

as retail, restaurant, office, service, mini-warehouse, and other similar 

uses,” expressly in accordance with the permissible uses and other 

strictures of the 2008 PAD zoning. The plan proposed 601 dwelling units 

of three types on the property, yielding an overall residential density of 20.9 

dwelling units per acre—just under the 21 dwelling units per acre 

maximum permitted under Surprise’s general plan.

¶9 On August 16, 2022, the City Council passed Ordinance 2022-

18 approving this preliminary development plan. Ordinance 2022-18 

expressly noted that the plan was “substantially consistent” with the PAD 

zoning adopted by Ordinance 08-37 in 2008 as well as the Old Code, 

although it further acknowledged that the 2008 PAD approval had neither 

included a preliminary development plan nor established a residential 

density allowance.

¶10 Opposing this action, VOS sought to refer Ordinance 2022-18 

for a vote by the people. To qualify for the ballot, VOS would have to 

submit petition sheets with 3,114 signatures within 30 days after the 

ordinance was adopted. See Ariz. Const. art. 4, pt. 1, § 1(8); A.R.S. § 19-

142(A). VOS initiated its referral effort on August 29 by filing with the City 

Clerk an application for a petition serial number and a statement of 

organization—but without including the text of the challenged ordinance

as required by A.R.S. § 19-111(A). Although the City Clerk noticed the 

omission, she accepted the application without comment and issued a serial 

number for the petition sheets. On September 16, VOS submitted petition 

sheets with 5,432 signatures supporting referral.

¶11 A week later (after the 30-day period for submitting 

referendum petitions had expired), Dominium sent the City Clerk a letter 
VOICE, et al. v. HALL, et al.

Opinion of the Court

5

urging rejection of the petition sheets for several reasons, including VOS’s 

failure to attach the ordinance to its serial-number application and that the 

ordinance was administrative and thus not referable. Relying on the 

application error (without taking a position on any alternative grounds), 

the City Clerk rejected all petition sheets and signatures on October 5, 2022.

¶12 Two days later, VOS filed a statutory special action against 

the City, also naming Developers as real parties in interest. See A.R.S. § 19-

122(A); see also Ariz. R.P. Spec. Act. 2(a)(1). VOS sought injunctive and 

declaratory relief compelling the City Clerk to accept and process the 

petition sheets for submission to the county recorder for verification and, 

ultimately, placement of the referendum on the ballot.

¶13 The City answered, raising as defenses both the application 

error and that adoption of Ordinance 2022-18 was a non-referable 

administrative act. The City and Dominium, both joined by Truman Ranch, 

also opposed VOS’s injunction request, relying on (among other 

arguments) the application error and the administrative-act issue. 

Dominium then timely filed an answer and counterclaim, again asserting

the application error as well as the administrative-act issue.

¶14 After an evidentiary hearing, the superior court denied VOS’s 

request for injunctive relief and entered judgment for all defendants. The 

court reasoned that, given the statutory requirement of strict compliance in 

the referendum process, VOS’s application error precluded the relief it 

sought. In light of that ruling, the court declined to reach the defendants’ 

alternative arguments, including their assertion that Ordinance 2022-18 

was a non-referable administrative act. VOS appealed, and this court 

affirmed. See Voice of Surprise v. Hall (Voice I), 255 Ariz. 204, 205, ¶ 2 (App. 

2023).

¶15 The Arizona Supreme Court granted review, reversed, and 

remanded. See Voice II, 255 Ariz. at 519, ¶ 40. Although agreeing “that VOS 

did not strictly comply with § 19-111(A), and that [application] error cannot 

be undone,” id. at 516, 519, ¶¶ 26, 37, the court held that the City Clerk was 

not authorized to reject the petition sheets on that basis, id. at 519, ¶ 35. The 

court remanded because Dominium (not just the City) had also challenged 

the referendum petition based on the now-established application error, 

but the private party’s counterclaim might be subject to a laches defense 

that had not yet been litigated. Id. at ¶¶ 36–37. The court further observed 

that all defendants’ alternative bases for challenging the petition—

“including that the matter is seeking to refer a non-referable administrative 
VOICE, et al. v. HALL, et al.

Opinion of the Court

6

or executive matter”—could be addressed in the first instance on remand. 

Id. at ¶ 38.

¶16 On remand, the City (joined by Truman Ranch) moved for 

summary judgment on VOS’s complaint on the basis that Ordinance 2022-

18 was not a legislative act and was instead a non-referable administrative 

act.3 After briefing and argument, the superior court granted summary 

judgment against VOS, holding that adoption of Ordinance 2022-18 was a 

non-referable administrative act and that VOS thus was not entitled to the 

relief it requested. The court alternatively ruled that VOS had not 

established a laches defense to the petitions’ invalidity based on the 

application error.

¶17 The court denied VOS’s motions for reconsideration and new 

trial and entered final judgment dismissing VOS’s claims and enjoining the 

City from processing the petitions or placing the referendum on the ballot. 

VOS timely appealed. See A.R.S. § 19-122(A); see also ARCAP 10.

DISCUSSION

¶18 The Arizona Constitution reserves to the qualified electors of 

incorporated cities the power of referendum. Ariz. Const. art. 4, pt. 1, § 1(8). 

This power permits qualified electors to submit city council actions to a 

popular vote—but only if the action is legislative, not administrative, in 

nature. Id. (power of referendum on matters on which the relevant 

governmental entity is “empowered by general laws to legislate”);

3 Developers’ role in the litigation expanded after remand as well. 

Even before the mandate issued, Truman Ranch filed an answer and 

counterclaim to VOS’s complaint, along with a crossclaim against the City 

under A.R.S. § 19-122(C), asserting invalidity of the referendum petitions 

based on the application error, the administrative-act issue, and other 

grounds. Dominium likewise filed a crossclaim against the City Clerk 

under A.R.S. § 19-122(C) seeking to enjoin placement of the referendum on 

the ballot due to the application error and the administrative-act issue.

The City answered without opposing either crossclaim and likewise 

did not oppose Developers’ respective motions for judgment on the 

pleadings on the crossclaims. VOS intervened, however, and opposed 

Developers’ dispositive motions on laches and other grounds. VOS also 

successfully moved to dismiss Dominium’s counterclaim (and later its 

crossclaim), largely on the basis that as a foreign (Minnesota) corporation 

not registered to do business in Arizona, Dominium was not permitted to 

“maintain” a judicial proceeding in this state. See A.R.S. § 10-1502(A), (E).
VOICE, et al. v. HALL, et al.

Opinion of the Court

7

Wennerstrom v. City of Mesa, 169 Ariz. 485, 488 (1991). We review de novo 

the superior court’s determination that adoption of Ordinance 2022-18 was 

not legislative and thus non-referable. See Redelsperger v. City of Avondale, 

207 Ariz. 430, 432, ¶ 7 (App. 2004); see also Beck v. Neville, CV-22-0134-PR, 

2024 WL 91185, at *2, ¶ 10 (Ariz. Jan. 9, 2024) (summary judgment).

¶19 The distinction between legislative and administrative acts is 

not always easy to discern. See Wennerstrom, 169 Ariz. at 489. As a general 

rule, legislative acts address “subjects of a permanent and general 

character” and “make new law,” “prescribe[] a new policy or plan,” or 

“declar[e] a public purpose and mak[e] provision for ways and means of its 

accomplishment.” Id. (citation and emphasis omitted); see also id. (citing

Pioneer Tr. Co. of Ariz. v. Pima County, 168 Ariz. 61, 65 (1991)) (“[A]n act that 

declares a public purpose and provides for the ways and means of its 

accomplishment is legislative.”). In contrast, administrative acts address 

“subjects of a temporary and special character” and “execute law already 

in existence,” “pursue[] a plan already adopted” (by the enacting legislative 

body or a superior power), or “merely carr[y] out the policy or purpose 

already declared by the legislative body.” Wennerstrom, 169 Ariz. at 489 

(citation and emphasis omitted). Accordingly, we determine whether a 

given action was legislative or administrative by “consider[ing] whether 

the action is (1) permanent or temporary, (2) of general or specific (limited) 

application, and (3) a matter of policy creation or a form of policy 

implementation.” Redelsperger, 207 Ariz. at 433, ¶ 15 (reciting the 

Wennerstrom factors).

¶20 The most compelling consideration in this context is the third: 

whether Ordinance 2022-18 created new policy or implemented existing 

policy. See Wennerstrom, 169 Ariz. at 489. And here, Ordinance 2022-18 

merely implemented the policy and overall plan created in 2008 with the 

City’s adoption of PAD zoning for the property.

¶21 In 2008, Ordinance 08-37 rezoned the property from singlefamily residential and general commercial to a PAD incorporating the 

neighborhood commercial (C-1), community commercial (C-2), and mixed 

use planned development (MU-PD) zoning districts—rendering a 

legislative decision determining (and limiting) the permissible land uses for 

future development. See Fritz v. City of Kingman, 191 Ariz. 432, 433, ¶ 7

(1998) (reiterating that rezoning decisions are legislative). The PAD 

approval also adopted a variety of detailed standards—design, height, and 

architectural criteria constraining buildings along with setbacks, 

landscaping, pedestrian, and parking requirements—that specified the 

character of development contemplated and how such development was to 
VOICE, et al. v. HALL, et al.

Opinion of the Court

8

proceed. Although the PAD—by design—authorized “a variety of 

appropriate land uses including retail, employment, and commercial with 

residential components,” it set the parameters and policy for the 

development to come. Cf. Pioneer Tr., 168 Ariz. at 65 (“At that point, the 

decision had been made.”).

¶22 Ordinance 2022-18 implemented this previously established 

development policy. Developers’ 2022 proposal chose a variety of uses 

from within the menu of land uses authorized in 2008, and it rendered a 

concrete site plan consistent with the discrete standards adopted in 2008. 

The City Council acknowledged as much in Ordinance 2022-18 itself, (1) 

reciting that Developers’ proposal “would implement the [2008] PAD by 

allowing development of land uses permitted by the PAD in accordance 

with design and development standards set forth in the PAD” and (2) 

expressly requiring that “development and use of the subject site . . . shall

be substantially consistent with and shall be regulated by the [2008 PAD], 

Ordinance No. 08-07.”

¶23 Highlighting the omission of a preliminary development plan 

and residential density allowance from the 2008 PAD approval, VOS argues 

that Ordinance 2022-18 must have created, not just implemented, policy. 

VOS asserts that, because the 2008 enactments permitted so many uses and 

allowed such a wide range of residential densities, they necessarily 

contemplated future legislative acts.

¶24 To be sure, the Old Code contemplated consideration of a 

preliminary development plan and determination of allowable density at 

the time of rezoning. See Old Code §§ 125-35(c)–(d), -194(b)(5)(b.). And the 

City acknowledged the prior omissions when adopting both via Ordinance 

2022-18.

¶25 But design and development standards were adopted in 2008 

as part of the PAD approval, even if not as components of a preliminary 

development plan. See also Old Code § 125-35(c)(2)(a.)–(l.) (listing types of

design and development criteria to be considered). And the 2008 PAD 

authorized—and limited—land use by incorporating three discrete zoning 

districts. Developers’ 2022 preliminary development plan did not seek 

different design standards or new land uses but rather worked within the 

strictures of the established PAD zoning. Although VOS asserts that the 

menu of land uses allowed under the 2008 PAD was too broad, the time to 

challenge the breadth of permissible uses was in 2008. See Pioneer Tr., 168 

Ariz. at 66. At that point, the public was on notice of which uses were 

sanctioned, rendering subsequent approval of conforming plans
VOICE, et al. v. HALL, et al.

Opinion of the Court

9

administrative in nature. Cf. Redelsperger, 207 Ariz. at 437, ¶ 27 (quoting 

Sandblom v. Corbin, 125 Ariz. 178, 184–85 (App. 1980)) (noting that issuance 

of use permits is generally administrative and zoning generally legislative 

because “the public is not affected to as great a degree by the issuance of 

[use] permits as they would be in cases of changes in zoning, because they 

are already on notice that these special uses are permissible by 

administrative decree”). Indeed, the additional detail provided in the 2022 

plan was in the nature of a site plan conforming to the 2008 strictures, and 

approval of a conforming site plan is an administrative act. See id. at 438, 

¶ 28 (citing 3 Edward H. Ziegler, Jr. et al., Rathkopf’s The Law of Zoning and 

Planning § 46:7 (4th ed. 1994)).

¶26 Likewise, although the 2008 PAD did not expressly designate 

the permissible residential density, the density question was not the blank 

slate VOS alleges. The 2008 PAD zoning incorporated the mixed-use 

planned-development zoning district, which would generally allow any 

variety of residential use permitted in the city. See Old Code § 125-155(b) 

(MU-PD column). But the Old Code also mandated that density in PAD 

zoning, as in an MU-PD district itself, be consistent with the density 

designated in Surprise’s general plan. Old Code §§ 125-186(b)(1) (MU-PD 

density ranges consistent with general plan), -194(b)(5)(a.) (PAD density 

flexible, but consistent with the land use as designated in the general plan). 

The 2008 PAD, albeit by default, thus did incorporate a range of permissible 

densities based on the property’s mixed-use designation in General Plan 

2020: up to 21 dwelling units per acre.

¶27 This range is admittedly broad, and the City only ultimately 

picked a specific number—601 dwelling units, corresponding to a density 

of 20.9 dwelling units per acre—in Ordinance 2022-18. But as of 2008, the 

permissible range was on the record in a PAD approval that, by its terms, 

applied to “[a]ll present and future owners of the property”—owners who 

were thus entitled to rely on the approvals (and required to comply with 

the restrictions) adopted in the 2008 PAD. And the density specified in 

Ordinance 2022-18 was less than the maximum density allowed. Cf. Old 

Code § 125-35(g)(2) (characterizing an increase, but not a decrease, in density 

as a major change to a PAD approval). The “logical and practical time” for 

any challenge to a density range perceived as overly broad was in 2008,

“after the contested proceedings and public hearings, . . . before the 

legislative members leave office through expiration of terms or elections 

. . . . [and] also before owners, developers, and lenders expend huge sums 

of money to comply with the conditions.” See Pioneer Tr., 168 Ariz. at 66.
VOICE, et al. v. HALL, et al.

Opinion of the Court

10

¶28 Furthermore, Ordinance 2022-18 lacked other hallmarks of 

policy-creating actions. For example, this court’s last foray into the 

legislative/administrative question—Workers for Responsible Development v. 

City of Tempe, 254 Ariz. 505 (App. 2023)—highlighted an ordinance’s 

substantive additions to prior zoning that rendered it legislative: “extensive 

tax, expenditure, sale, and development decisions beyond what is provided 

in the zoning designation.” Id. at 515, ¶ 44. Here, Ordinance 2022-18 

included no such provisions. The Workers court also observed that the 

ordinance at issue there “neither identifies the previously declared policy 

decision it intends to implement nor suggests that the MU-4 zoning 

designation is the policy it intends to carry out.” Id. at ¶ 46. Here, in 

contrast, Ordinance 2022-18 did just that: It expressly cross-referenced the 

City’s steps in 2008 establishing the policy for the property (from Resolution 

08-104 approving general plan amendment GPA08-019, through 

annexation by Ordinance 08-31, to approval of specifically delineated PAD 

zoning pursuant to Ordinance 08-37). And it explicitly found that the 

proposed preliminary development plan “is substantially consistent with” 

and “would implement” the previously adopted PAD. In short, Ordinance 

2022-18 did not create new policy but rather implemented a policy 

previously adopted.

¶29 As to the other two Wennerstrom factors—

permanent/temporary and general/specific—VOS urges that each leads to 

the conclusion that adoption of Ordinance 2022-18 was a legislative act. See 

Redelsperger, 207 Ariz. at 433, ¶ 15. VOS asserts that Ordinance 2022-18 was

permanent because its permissions and restrictions were “just as 

permanent as any rezoning,” creating entitlements that run with the land. 

But while Ordinance 2022-18 was “permanent” in the same sense as a use 

permit or approved plat, its permanence stemmed from conformity with 

the 2008 legislative act—because the 2008 PAD rezoning was “permanent,” 

so was approval of a conforming use. Although VOS relies on Workers for 

this point, the Workers analysis in fact undercuts its argument. There, the 

development agreement to be referred established entitlement, for 

example, to purchase certain property and receive deviations from 

otherwise-applicable zoning. Workers, 254 Ariz. at 514, ¶¶ 37, 40. The 

parameters here, however, were set in 2008.

¶30 VOS likewise asserts that Ordinance 2022-18 was of general 

and not limited scope, but its argument merely restates that the burdens 

and benefits of preliminary development plan approval and density 

designation are “permanent.” Moreover, its primary authority (Workers

again) undermines its position. The Workers court highlighted the 

ordinance’s “declar[ation of] a public purpose” (to “improve or enhance the 
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Opinion of the Court

11

economic welfare” of residents) and “provi[sion] for the ways and means 

of its accomplishment” (including a phased master-planned real estate 

development constructed over 15 years, providing for phased purchase of 

city property, agreement to tax abatement on one side and cash 

contributions to specified city funds on the other). Id. at 514–15, ¶¶ 38–43. 

In contrast, here, any comparable declaration of public purpose and plan to 

accomplish it arose not with Ordinance 2022-18, but rather with the 

adoption of PAD zoning in 2008.

¶31 In sum, adoption of Ordinance 2022-18 was an administrative 

act implementing the policies established by legislative act in 2008, and thus 

is not referable. See Wennerstrom, 169 Ariz. at 488. The superior court 

properly so held, and thus properly dismissed VOS’s claims and enjoined 

placement of the matter on the ballot. Because the referendum effort fails 

for this reason, we do not address the viability of VOS’s laches defense 

against Developers’ assertion of invalidity based on the application error or 

Dominium’s cross-appeal from dismissal of its counter- and crossclaims. 

Because VOS has not “prevail[ed] by an adjudication on the merits” against 

a government entity, see A.R.S. §§ 12-348(A), -2030, we deny its request for 

attorney’s fees against the City on those bases.

CONCLUSION

¶32 The judgment is affirmed.