State Representative Calls off Investigation into Tempe’s Upcoming Special Election After Clearing Legal Concerns

Arizona State Representative Steve Montenegro (R-Goodyear) announced Tuesday that he is rescinding a complaint he previously filed against the City of Tempe with Arizona Attorney General Kris Mayes (D) after alleviating his concerns.

“Based on information and written assurances I have received within the last 24 hours, I hereby withdraw my request for an investigation of the City of Tempe’s Ordinance No. 02022.56, Ordinance No. 02022.57, Resolution No. R2022.l 70, and§ 12.9 and§ 17 of the Development and Disposition Agreement (“Agreement”) between the City and Bluebird Development LLC (“Bluebird”),” Montenegro wrote in a new letter emailed to the press.

According to the original press release from Monday, Montenegro (pictured above) went after Tempe regarding Bluebird’s involvement in the upcoming May 16th special election relating to constructing the proposed Tempe Entertainment District (TED).

According to the city, Bluebird collected over the 2,134 necessary petition signatures to put three measures, propositions 301, 302, and 303, to a vote. However, Montenegro initially alleged this action violated Arizona Constitution Article IV, part 1, § 1(8). The law states that under local governments, referendum powers are “reserved to the qualified electors,” so it would be inappropriate for a governmental body to put an ordinance on the ballot that the people do not choose. Montenegro understood that Bluebird acted under Tempe’s orders to get the signatures. Yet, upon receiving written confirmation from the company, the lawmaker said Bluebird’s efforts were “independent and unsolicited,” thereby clearing any constitutional concerns.

Secondly, Montenegro originally stated Bluebird would be involved in funding the election based on the DDA. Under section 17 of the DDA, Bluebird “shall bear the third-party, nonrecoverable actual costs, expenses, and fees associated with the Referral and the Referendum Election[.]” Arizona Revised Statute (ARS) § 16-407.01 states that a municipality, or any public body, “may not receive or expend private monies for preparing for, administering or conducting an election, including registering voters.” However, Montenegro now shared that he received written confirmation from Tempe that it will not enforce section 17 and will bear all costs associated with the election itself.

Despite clearing the water, the legislator said he still found it troubling that he had to submit a complaint in the first place.

“It is troubling to me that the City realized last week – without notifying voters or the general public – that section 17 of its Agreement is unlawful because A.R.S. § 16-407.01 prohibits the City from accepting private monies to administer the Special Election. Yet this information did not come to light until I submitted my request for an investigation questioning the legality of section 17,” Montenegro wrote to Mayes.

In any case, the election is less than a month away. A Monday release from Tempe shared that early voting is an option in this election, and constituents who have already received their ballot can submit it by mail no later than May 9th or drop it off at a voting center starting May 8th.

If voters approve the propositions in May, the City will amend the Tempe General Plan, change a plot of land at 53 South Priest Drive from “commercial” to “mixed-use,” and approve Bluebird to commence construction in the area. The TED would house a new hockey stadium for the Arizona Coyotes, shopping centers, and residential units.

While a potential conflict with the Legislature and Attorney General’s Office has subsided, Tempe is facing heat from Phoenix, which sued the City for planning to build the TED too close to Sky Harbor International Airport. Bluebird has since countersued Phoenix for attempting to “torpedo” the project.

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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].