Superior Court of Arizona upholds Scottsdale Southbridge referendum

Developer voes project will never have public vote

It’s disappointing. We will most likely be appealing to the Supreme Court and we will keep fighting hard for as long as we can as opposed to the alternative of appealing our entitlements.”

Carter Unger, Spring Creek Development president

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By Melissa Rosequist
Twitter: @mrosequist_

The Superior Court of Arizona has dismissed with prejudice Carter Unger’s lawsuit seeking to overturn thousands of petition signatures opposing his Southbridge Two development in Old Town Scottsdale.

Mr. Unger, Spring Creek Development president, is expected to make a decision immediately about appealing to the Arizona Supreme Court.

“It’s disappointing,” Mr. Unger said of the court’s decision.

“We will most likely be appealing to the Supreme Court and we will keep fighting hard for as long as we can as opposed to the alternative of appealing our entitlements.”

Southbridge Two has been engulfed in a public fight to see the light-of-day after being approved by Scottsdale City Council in December with a 4-3 vote.

Immediately following the council’s narrow approval, Political Action Committee, “For the Preservation of Old Town Scottsdale” sought nearly 15,000 verified signatures in a 30-day period to push the development project to a public vote in November.

In January when the signatures were verified, Mr. Unger filed suit, claiming misinformation and “outright lies” were used to garner signatures.

The lawsuit was filed against:

• Scottsdale City Clerk Carolyn Jagger;
• Maricopa County Recorder Adrian Fontes; and
• Political Action Committee: For the Preservation of Old Town Scottsdale.

Of the property owners and merchants neighboring Southbridge Two --- a mixed-use development including residential units, hotel and office space --- more than 150 supported the project, and only three entities were against, Mr. Unger says.

“We owe it to all of them to keep trying to do the best thing for the area and create as much prosperity as possible for them,” he said.

Court decision

According to court documents, the only issue that needed to be resolved by the court is whether or not an oral oath is required as part of the ballot process.

The petitioners were essentially arguing that two oaths must be administered, one in writing and one where the affiant actually raises their hand and is sworn-in.

In addition, a motion to dismiss was denied, court minutes show.

The referendum petition was projected to have an estimated 14,807 valid signatures, of which 11,930 valid signatures were required for the referendum election to be in order. As such, Mr. Unger’s camp would need to invalidate 2,877 signatures.

The petitioners --- Unger’s camp --- complained about three major issues, the court document states. They were:

• There were pervasive notarial irregularities;
• Handwriting irregularities; and
• Circulator Gregory Word allegedly did not reside at the address he represented in affidavits of the petition sheets he claims to have circulated.

Petition circulators must execute sworn affidavits in the presence of a notary public attesting that the circulators personally witnessed the signatures, that the signatures are genuine and that the signatures personally inscribed all requited items of information.

The signature sheets must contain an affidavit executed by the circulator that is “subscribed and sworn” before a notary public.

“This requires, at most, that the signer ‘has made in the notary’s presence a voluntary signature and has taken an oath or affirmation vouching for the truthfulness of the signed documents,’” the court judgment penned by the Honorable Timothy Thomason states.

“’Oath’ or ‘affirmation’ means a notarial act or part of a notarial act in which a person made a vow in the presence of the notary under penalty of perjury, with reference made to a surprise being in the case of an oath.”

As part of the complaints, the petitioners claim that Scottsdale resident Emily Austin, a notary, testified that she ‘occasionally’ signed and stamped notarial certificates for certain high-volume circulators who had not yet completed their affidavits, the documents state. She also acknowledged that she did not personally observe the execution of every circulator affidavit she notarized.

Additionally, the petitioners allege that circulator Shirley Cordasco testified she observed circulators drop off completed sheets for later notarizations.

In total, the petitions claim that the notary must give the circulators a verbal oath.

“There is no such requirement,” Mr. Thomason states, citing state statute. “The circulators who sign are swearing that the things attested to are true, under penalty of perjury. That is all that the statutes require. There is no additional requirement for a verbal oath.”

Mr. Thomason dismissed the case with prejudice, which bars Mr. Unger from filing another lawsuit on the same issue. He does, however, have the option to appeal.

Mr. Unger says if he decides to appeal to the Supreme Court, that process would begin in two weeks.

The local developer will not, he says, allow the project to go to a vote in November regardless of any outcome.

“We won’t go to a vote. It doesn’t work business wise with us to push it off that long, we’ve already lost a lot due to these delays,” Mr. Unger said.

“If we don’t win [the appeal] we will repeal our entitlements and build apartments.”

According to Randy Grant, executive director of planning, economic development and tourism for Scottsdale, the Southbridge Two project is on hold pending the outcome of litigation or the election.