Rezoning Approved On Minority Vote

Attorney questions vote on new McLane Road subdivision


With two of the seven members of the Planning and Zoning Commission absent and another two claiming a conflict of interest, the rezoning of G. Michael Horton's Mogollon Ridge Subdivision was approved by a 2-1 vote.

Deputy Town Attorney Tim Wright told the commission that since a quorum was present at the beginning of the Monday afternoon meeting, the remaining members could render a decision.


The three commissioners who were allowed to determine the rezoning request for Mogollon Ridge were Mark Waldrop (left) and Barbara Underwood, who voted to approve, and James Scheidt, who voted against the G. Michael Horton project, which is located behind The Home Depot.

"As long as you have a quorum to start the meeting, which you did, if several members have conflicts on any one issue, the remaining members can address that issue," Wright told the commission.

But an attorney with Perkins, Cowie, Brown and Bain, a Phoenix law firm that specializes in media law, disagrees.

"(Based on) the cases I've looked at, it's my opinion that his opinion is wrong," attorney Mike Liburdi said. "Overwhelmingly they say that if you have a (situation) such as this and it drops your level underneath a majority of those members on the board such as what happened here, then you lose your quorum and you're not allowed to vote on that particular item.

"Once that particular issue came up and those members had to recuse themselves then the court has held that at that point there is no longer a quorum. So these cases seem to contradict what the deputy town attorney is saying."

Wright issued a memo Thursday defending his decision. He cited an opinion from Arizona Attorney General Bruce Babbitt which read, in part, that while there is "no Arizona law touching the question," Roberts Rules of Order leads to the conclusion that "given a quorum, business may be transacted by a disinterested minority, even if that minority is one person."

Mogollon Ridge, a proposed 35-lot subdivision behind The Home Depot, is one of the three subdivisions Horton plans to use Star Valley water to build. The Payson Town Council must still approve the rezoning request, which would reduce the required residential lot size from 175,000 square feet (300 X 300 feet) to 6,000 square feet (60 X 90 feet).

While Jason Phillimore, one of the commissioners who recused himself, has a clear conflict of interest -- he works for Tetra Tech, a company involved in the project -- the other commissioner, Hallie Overman, felt she should have been allowed to vote on the rezoning request.

Overman said Wright and new town Community Development Director Jerry Owen told her that she had a conflict of interest because she had attended a public meeting on the project before she was appointed to the commission and had written "Wonderful plans" on a public comment form.


G. Michael Horton

"They were concerned it would be a perceived conflict of interest," Overman said. "I didn't feel that there was one, (and) the more I thought about it I wasn't real happy about it. I just really thought it was very strange."

Overman said she has no vested interest in the project and wasn't even aware that Horton was involved when she attended the meeting.

Many of the residents who packed the council chambers for the commission meeting on Monday expressed their disbelief that a decision could be made with the approval of less than a third of the commissioners. Bob Edwards, leader of the Committee for Citizen-Based Growth, was among them.

"It seems strange to me," he said. "It certainly doesn't give one a comfort level that we're being well represented."

When told that Liburdi disagreed with Wright, Edwards said the 2-1 vote should be overturned.

"I don't see how they cannot go back and revisit that," he said. "At least when it goes to the council they need to turn it down as a result of that."

During the hearing on Mogollon Ridge, Edwards and several other members of the audience spoke against the project.

"Before we increase densities, before we make more commitments that might threaten the water and the quality of life of those that are here, we need to ask the water department to tell us where are we really at," Edwards said.

"They need to stop this debate they're having with themselves where they talk to one group and say, ‘We got water galore,' and talk to another group and say, ‘We don't have enough water.'"

Ed Blair, a Payson resident who lives near the project, asked the commission to act in the town's best interest.

"I believe a ‘yes' vote will only encourage G. Michael Horton and more developers in the future to make irresponsible proposals," he said. "I believe a ‘no' vote will send a message to not waste your time and town staff time.

"Something might be legal, but it's not necessarily moral, nor wise, nor does it look toward the future in a responsible manner."

But the two commissioners who voted for the project defended their decision.

"How water comes to the table will be (Horton's) choice," Commissioner Barbara Underwood said. "He has met all of the requirements of the town."

The other commissioner who voted ‘yes,' Mark Waldrop, said he wants "to support growth in the town."

"We hope the developers can bring water," he said. "I think it will help the town; that's what we want."

Vice Chairperson James Scheidt cast the lone vote against Mogollon Ridge. Chairperson Ray Jones and Commissioner Jere Jarrell were absent.

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