Committee for the Preservation of Old Town Scottsdale

Thousands of signatures collected by the Committee for the Preservation of Old Town Scottsdale in support of its referendum to put Southbridge Two before voters are now the subject of a lawsuit by the developer behind the project.

The Southbridge Two development in downtown Scottsdale will go before voters in November – if the opposition’s referendum petition survives a court challenge filed by the developer on Feb. 5.

Scottsdale City Clerk Carolyn Jagger on Jan. 31 notified the Committee for the Preservation of Old Town Scottsdale political action committee notifying them that the PAC collected enough valid signatures to put Southbridge Two referendum before voters.

Following a state-mandated vetting process, the Clerk projected the PAC collected 14,807 valid signatures – well above the 11,930 signatures needed to put Southbridge Two on the ballot.

Resident Emily Austin, who volunteered with the PAC to notarize signatures, said she was “thrilled” with the results.

The vote would give Scottsdale residents the chance to confirm or reverse the 4-3 City Council decision last Dec. 4 to approve Southbridge Two, the ambitious 10-acre redevelopment project would reshape the 5th Avenue shopping district in downtown Scottsdale and include buildings up to 150 feet tall.

But whether or not the referendum will actually reach the ballot is unclear.

Carter Unger, the developer behind the project, filed a lawsuit in Superior Court, alleging the Clerk and Maricopa County Recorder’s Office missed signatures that should have been invalidated.

State law allows anyone to challenge the validity of a referendum in court within five days of the date the clerk receives the verification from the County Recorder.

That multi-step verification process began when the PAC turned in over 17,000 signatures to the Clerk’s office on Jan. 3.

The Clerk’s certification letter said her office invalidated 185 signatures off the bat while another 499 signatures were invalidated later in the process.

The County Recorder then generated a five percent sample from the remaining 16,894 signatures for verification.

The recorder invalidated 100 signatures from that 845-singature sample – a failure rate of 11.83 percent.

The clerk applied that failure rate to the total remaining 16,894 signatures to generate the projected valid signature count of 14,807.

Unger was not surprised by the results of the random sample test.

“The sample wasn’t surprising at all,” Unger said. “We anticipated that the five percent wouldn’t get into the level of detail that we will.”

Unger, via the lawsuit, alleged the City Clerk and County Recorder failed to account for thousands of invalid signatures.

The lawsuit alleged that approximately 3,800 additional signatures should be invalidated for various violations of the state laws that govern signature collection, including duplicate signatures or signatures from non-Scottsdale voters.

Unger is asking a judge to invalidate those signatures, which would drop the petition below the 11,930 valid signatures required to put Southbridge Two before voters.

Tim LaSota, an attorney for the PAC, was undeterred.

“Our substantial margin will hold up, and the citizens of Scottsdale will have their say on Southbridge Two at the ballot,” LaSota said.

Unger’s lawsuit alleged a mix of clerical errors and potential fraud in seeking to push the referendum off the ballot.

The allegations included that some petition lines had incomplete dates or were dated after the Jan. 3 deadline.

Arizona is known for its rigorous laws regulating petition circulation.

State law requires that potion requirements be “strictly construed” and that referendum collections “strictly comply” with rules set forth in law and by the Arizona Constitution.

Some allegations are more serious in nature, including that petition circulators or others filled out information on behalf of signers or after signatures were gathered.

The lawsuit alleges some information on the signature lines “were written in the hand of an individual other than the signer” and that some incomplete circulator affidavits were filled in by third parties after the affidavits were signed.

State law requires signers to fill out all information themselves – including name, address, date and signature.

Unger said that he will use “handwriting experts that can speak to whether or not someone wrote multiple different names and addresses…”

The lawsuit also alleged that the PAC used pre-notarized petition sheets and, in some cases, petition signatures included were dated after the notarization date on the sheet.

Arizona law disqualifies any names signed to a petition after the sheet has been notarized.

The lawsuit also alleged that some signature gatherers failed to disclose whether they were a volunteer or paid circulator, as required by law.

Each petition sheet includes an area to designate the circulator as paid or a volunteer.

According to the suit, some circulators “inconsistently identified themselves as ‘volunteers’ or ‘paid circulators,’ marking one designation on some signature sheets but the other designation on other signature sheets…”

The lawsuit specifically cites sheets circulated by Austin, Guy Phillips, Cora Phillips, Maria Desautel, Sally LeRoy and Sandra Neil as containing both the volunteer and paid designations.