Payson residents will not be able to vote on the town council's decision to pay George Randall and Roy Haught $750,000 for water the town intends to take from Star Valley and re-sell to developers.
Although the Committee for Community-Based Growth submitted petitions last month bearing the signatures of more than 1,900 Payson voters requesting a referendum on resolution 2098, legal counsel has advised the council that the referendum cannot proceed. The council retained the services of Tom Irvine, a Valley lawyer who specializes in election law, and he informed the council of his opinion at a hastily called special meeting at 4 p.m. Friday.
Irvine based his advice on his determination that Resolution 2098 was "administrative" in nature rather than "legislative." In other words, it was merely carrying out a policy that was already in place.
The initial "legislative" decision came in 1999, according to Irvine, when a provision was placed in the town code telling developers they must provide a new water source for all developments of 21 or more lots. That provision was reaffirmed in the town's general plan, which the voters approved in 2004.
Once the developer, G. Michael Horton, came to the town with his plan to take water from Star Valley and bring it into Payson to meet this requirement, the town had no choice but to accept, in Irvine's opinion.
"Could you have turned down the developer in giving you the well?" Irvine asked. "The way your ordinances are written, I don't think you could have turned down the developer (without inviting a lawsuit)."
The bottom line, Irvine told the council, is that under state law, legislative decisions are subject to referendum, but administrative ones are not. But Irvine also said he expected his opinion to be challenged in court.
Before adjourning the meeting, Mayor Barbara Brewer allowed Hal Baas, secretary-treasurer of the committee, to address the council.
"I'm not an attorney, and I'm certainly not going to question the attorneys present," Baas said, "(but) when the voters were given the opportunity to approve the general plan, they believed that the town policy regarding new water had to do with the need to mitigate shortages occurring versus current commitments -- including those that are currently (water) customers and also those who own land or have other rights to receive water from the town. I believe that is different than additional development and creation of additional properties through subsequent rezoning."
Town Manager Fred Carpenter said the meeting had to be scheduled on short notice because the town had only 48 hours to respond once the signatures on the petition had been verified by Gila County Recorder Linda Haught-Ortega on Thursday. Members of the committee and the Diamond Star Water Coalition packed council chambers anyway, spilling out into the hallway and parking lot.
While those in the chamber sat stoically through Irvine's presentation, many talked afterward about recalling the four council members who continue to favor taking water from Star Valley to build new subdivisions in Payson. In addition to Brewer, they are Robert Henley, John Wilson and Judy Buettner.
Randy Roberson, a Payson resident who has served as the spokesperson for the Diamond Star Water Coalition from the outset, put the issue in perspective.
"Since the beginning this has been an issue where people had to decide between legality and morals," Roberson said in the parking lot after the meeting. "It's still a moral issue, and the council seems to be teeming with spineless wonders.
"If this is the direction they're going to go, I think it needs to be challenged in court, and because some of the people up on the dais are not acting with the best interests of their constituents at heart, I think they have to be recalled; I think it's our duty to do that."
On Monday, Baas said the committee is considering challenging Irvine's decision in court, and agreed with Roberson regarding a recall.
"We have 10 calendar days to file an appeal from when we are informed of their rejection," Baas said.
"Our chairman, Bob Edwards, clearly is of the mindset to do a recall, and we're going to be having a steering committee meeting next week and we'll make the final decision," he added. "But people are expressing to us, through phone calls and e-mails and on the street and at the Beeline Cafe, that they want a recall now."
Baas acknowledged the fact that the council has to follow Irvine's advice, but he said they should never have put themselves in such a position.
"They dug this hole," he said. "They are in a legal quandary. We don't deny that.
"But they got into this mess by passing certain resolutions and putting certain policies into the general plan.
"There's a lot of actions taken by this council which dug this deep hole of theirs and puts them into a bind, so a recall is over a track record going back over the last one, two, three or four years of poorly made decisions and insufficient legal advice and insufficient information from their department heads.
"We've been trying for weeks and months to get them to look into this a little better and not keep digging this hole deeper and deeper. We now see this council is not capable of doing that."
Brewer defended the council's decisions regarding Diamond Star water and its overall record.
"We vowed to make sure the public has all of the information right from the get-go, and yet people say what they want and it just divides the community," the mayor said.
The fact the council opted not to hear Irvine's opinion behind closed doors is, she believes, a case in point.
"Based on the information, I'm glad we did everything out in the open so that the people could hear all of the facts that were given by Mr. Irvine about whether Resolution 2098 was referable," the mayor said.
Given that three council members and the mayor must stand for re-election in March, Brewer feels a recall is ill advised.
"There's not that many months left and if they want to waste taxpayers' dollars to recall us, then so be it," she said. "But I don't believe we've done anything wrong. I think we've continued to work hard for this community."
The committee is seeking donations to defray legal expenses to challenge the referendum decision. Donations can be sent to Committee for Community-Based Growth, 217 East Highway 260, PMB 200, Payson, AZ 85541.
See related stories:
County gets Diamond Star petitions (Oct. 18)
Hydrology report disputes town's claims (Oct. 14)
Legislators decline to join local water fight (Oct. 7)
McDaniel to serve on Diamond Star council (Sept. 27)
Pipe on site, ready to go (Sept. 23)
Developer creates $100,000 fund to assist Star Valley well conversions (Sept. 16)
Council's executive session includes Haught-Randall deal (Sept. 13)
'Closed council' prompts referendum (Sept. 2)
Diamond Star water polarizes Rim Country (Aug. 30)
Diamond Star water to cost town $750K (Aug. 26)
Citizens groups to protest at town council meeting (Aug. 23)
Diamond Star rallies behind coalition
Diamond Star says, 'no deal, they still want our water'
Town officials, Diamond Star representatives agree to talk
Developer says taking water 'not a moral issue'
Neighbors question proposed subdivision