                                                                  FILED BY CLERK
                                                                      FEB 17 2006
                            IN THE COURT OF APPEALS
                                                                      COURT OF APPEALS
                                STATE OF ARIZONA                        DIVISION TWO
                                  DIVISION TWO


EMMETT McLOUGHLIN REALTY,                    )        2 CA-CV 2005-0073
INC.; QUIK-MART STORES, INC.;                )        DEPARTMENT A
DOUGLAS S. HOLSCLAW, JR.; ANNE               )
T. HOLSCLAW; TOOPS FAMILY                    )        OPINION
LIMITED PARTNERSHIP; RIGGS                   )
FAMILY TRUST; LYNN GREER                     )
TRUST; and JULIE GREER TRUST,                )
                                             )
                    Plaintiffs/Appellants,   )
                                             )
                   v.                        )
                                             )
PIMA COUNTY, ARIZONA; and                    )
MEMBERS OF THE BOARD OF                      )
SUPERVISORS OF PIMA COUNTY,                  )
ARIZONA,                                     )
                                             )
                  Defendants/Appellees.      )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. C20003514

                         Honorable Carmine Cornelio, Judge

                                      AFFIRMED


Law Office of Jeffrey M. Neff
 By Jeffrey M. Neff and Gabrielle A. Shinohara                               Tucson
                                                  Attorneys for Plaintiffs/Appellants

Barbara LaWall, Pima County Attorney
 By Paul A. Loucks                                                          Tucson
                                                 Attorneys for Defendants/Appellees
H O W A R D, Presiding Judge.


¶1            In this challenge to appellee Pima County’s zoning actions concerning certain

real property, appellants Emmett McLoughlin Realty, Inc., and others1 (collectively,

McLoughlin) appeal from summary judgment granted in favor of Pima County. McLoughlin

argues the trial court erred by rejecting its claims that Pima County had violated its

constitutional due process rights, violated the notice and hearing provisions in A.R.S. § 11-

829(C) and Pima County Code (P.C.C.) § 18.91.060(B)(1), and acted without jurisdiction

in violation of § 11-829 and P.C.C. § 18.91.030(A)(2). Finding the trial court did not err

in granting Pima County judgment on McLoughlin’s claims, we affirm.

¶2            We review a grant of summary judgment de novo. Strojnik v. Gen. Ins. Co.

of Am., 201 Ariz. 430, ¶ 10, 36 P.3d 1200, 1203 (App. 2001). A motion for summary

judgment should be granted if “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1), 16

A.R.S., Pt. 2; see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008

(1990). We view the facts in the light most favorable to the party against whom summary

judgment was entered. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App.

1998).




         1
       Appellants include Emmett McLoughlin Realty, Inc.; Quik-Mart Stores, Inc.;
Douglas S. Holsclaw, Jr.; Anne T. Holsclaw; Toops Family Limited Partnership; Riggs
Family Trust; Lynn Greer Trust; and Julie Greer Trust.

                                              2
¶3            This appeal concerns three parcels of real estate, totaling approximately thirty-

two acres, each of which is owned by separate individuals or entities. Prior to actions that

led to this litigation, Parcels A and C were zoned suburban ranch, and Parcel B was zoned

local business. In 1999, parties interested in purchasing Parcel A applied to the County for

a conditional use permit to construct and operate a charter school on that parcel. A hearing

administrator approved the application, but several neighboring property owners appealed

this decision to the Pima County Board of Supervisors. The appeal on Parcel A was

scheduled to be heard by the Board at a public meeting on July 13, 1999. Around the same

time as the conditional use permit for Parcel A was being processed, the owner of Parcel C

filed an application requesting the parcel be rezoned from suburban ranch to major resort

for use as a resort and conference center.

¶4            Before the hearing on the appeal concerning Parcel A occurred, a

neighborhood action group submitted a report to Pima County Supervisor Raul Grijalva,

proposing downzoning Parcel B from local business to suburban ranch and objecting to any

commercial development on Parcels A and C. Grijalva subsequently caused an agenda item

to be added to the Board’s regular meeting on July 6, 1999, to allow the action group to

present its report to the Board. At the meeting, the action group presented the contents of

its report, and the Board directed County staff to initiate the process of downzoning Parcel

B from local business to suburban ranch. Although Grijalva made that motion and the

Board unanimously passed it, he also noted the matter would first have to go through




                                              3
planning and zoning procedures and during that process various legal issues would have to

be addressed.

¶5              One week later, the Board held the public hearing on the appeal concerning

the conditional use permit for Parcel A. This hearing was preceded by publication in a

newspaper of general circulation in the county seat and personal notice to the appellants

who own the property. At that hearing, several speakers referred to the events that had

occurred at the July 6 Board meeting. The Board voted to deny the application for the

conditional use permit for Parcel A by a vote of three to two.

¶6              On March 29, 2000, the Pima County Planning and Zoning Commission held

separate public hearings on whether to downzone Parcel B and to rezone Parcel C. Both

hearings were preceded by publication in a newspaper of general circulation in the county

seat, posting notice on the subject properties along the public right of way, and personal

notice to the appellants who own the property. The Commission subsequently voted to

recommend that the Board not downzone Parcel B to a combination of suburban ranch and

single residence. The Commission also issued a report recommending that the Board deny

the owner’s application to rezone Parcel C from suburban ranch to major resort.

¶7              In April, the Board held a public hearing concerning the rezoning of Parcel B

and, despite the Commission’s recommendation, voted to downzone that parcel. Two

months later, the Board held a public hearing on the application to rezone Parcel C from

suburban ranch to major resort and, in accordance with the Commission’s recommendation,

voted to deny the rezoning request. Each of these public hearings was preceded by


                                              4
publication in a newspaper of general circulation in the county seat and personal notice to

the appellants who own the property.

¶8               McLoughlin sued Pima County and its Board of Supervisors, arguing the

County had violated the due process rights of the owners of each of the three parcels

because of the lack of notice of the Board’s July 6 meeting and the bias of a Commission

member.     McLoughlin also argued the county had violated certain statutory notice

provisions relating to the July 6 meeting and the Board had exceeded its authority when it

initiated the rezoning of Parcel B. McLoughlin further alleged the Board’s actions on Parcel

B violated a statute in effect at that time, A.R.S. § 11-829(F), which required the express

written consent of a property owner before a property could be downzoned.

¶9               The trial court entered partial summary judgment in favor of Pima County,

declaring the statute’s requirement of owner consent unconstitutional, and we affirmed that

decision on appeal. Emmett McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, 58

P.3d 39 (App. 2002). On remand, McLoughlin moved for summary judgment on the

remaining issues, and Pima County cross-moved for summary judgment. The trial court

granted Pima County’s motion and entered judgment in its favor. McLoughlin now appeals

to this court.

                 VIOLATION OF STATUTORY NOTICE PROVISIONS

¶10              McLoughlin argues that Pima County violated the notice provisions of A.R.S.

§ 11-829 and P.C.C. § 18.91.060(B)(1) by failing to give McLoughlin personal notice of the




                                               5
Board’s July 6 meeting.2 And McLoughlin argues that, because the results of the July 6

meeting affected Parcels A and C as well as Parcel B, the zoning decision on all three

parcels must be declared void.

¶11           Section 11-829(C) governs the procedures and notice requirements the County

must follow when addressing an application to amend or change a zoning regulation. This

statute provides that, after the Board receives an application, it must submit the application

to the Commission for a report. See also A.R.S. § 11-806(A). Before the Commission

reports to the Board, the Commission must hold at least one public hearing “after giving at

least fifteen days’ notice thereof by one publication in a newspaper of general circulation

in the county seat and by posting of the area included in the proposed change.” § 11-

829(C). In proceedings involving rezoning, the Commission must also give notice by first

class mail to each owner of the property to be rezoned and to all property owners within

three hundred feet of the property. § 11-829(C)(1). If anyone objects to the Commission’s

recommendation or requests a public hearing by the Board, the Board must hold a hearing

and give at least fifteen days’ notice of this hearing. § 11-829(D).

¶12           Likewise, the Pima County Code provides that, fifteen days prior to any public

hearing before the Commission, the County must give notice by publication in a newspaper

of general circulation and post notice on the property or area to be considered at the hearing.


       2
        We address McLoughlin’s statutory argument first because, if it is correct, it would
obviate the need to reach the constitutional issues he raises. Little v. All Phoenix S. Cmty.
Mental Health Ctr., Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App. 1995) (“Courts
should decide cases on nonconstitutional grounds if possible, avoiding resolution of
constitutional issues.”).

                                              6
P.C.C. § 18.91.060(B)(1)(a)-(b). And, when the hearing involves an issue of rezoning, the

County must also notify by first class mail all property owners within three hundred feet of

the property sought to be rezoned. P.C.C. § 18.91.060(B)(1)(c). These same notice and

hearing requirements also apply to a public hearing held by the Board of Supervisors.

P.C.C. § 18.91.060(B)(2). The notice requirements in the Code are additional to those

requirements mandated by statute. See Pima County v. Clapp, 23 Ariz. App. 86, 90, 530

P.2d 1119, 1123 (1975).

¶13           McLoughlin acknowledges it received notice of all public hearings that

occurred in the formal zoning process relating to the properties. However, McLoughlin

asserts that, because the action taken at the Board’s July 6 general meeting ultimately

affected Parcel B as well as the other parcels, the July 6 meeting was not simply a general

meeting of the Board, but instead, amounted to the first hearing on the rezoning of the

property. As a result, McLoughlin argues it was entitled to personal notice of this meeting

pursuant to § 11-829(C) and P.C.C. § 18.91.060.3

¶14           But, under Arizona’s statutory rezoning scheme, the Board’s July 6 meeting

could not have affected any of the three parcels at issue. When the Board receives an

application for rezoning, it must refer the application to the Commission for its

recommendation. § 11-829(C); Maricopa County Bd. of Supervisors v. Bell 51st Investors,

108 Ariz. 261, 263, 495 P.2d 1315, 1317 (1972). And, although the Board may choose to



       3
        McLoughlin relies on § 11-829(C)(2), which applies when the Commission changes
“the standards governing land uses,” but that did not occur here.

                                             7
disregard the Commission’s recommendation, as it ultimately did with respect to Parcel B,

the Board has no jurisdiction to act until it receives this recommendation. Bell 51st

Investors, 108 Ariz. at 264, 495 P.2d at 1318 (“Without either a positive or negative

recommendation by the Commission, the Board has no jurisdiction to act.”) (emphasis

deleted). In this case, the Commission had not acted prior to the Board’s July 6 meeting.

Therefore, as a matter of law, the Board could not have affected the zoning of any of these

parcels at its July 6 meeting. And the statutory scheme is very clear that the first rezoning

hearing is the first hearing before the Commission.

¶15           Furthermore, as noted earlier, the record reflects Supervisor Grijalva

specifically acknowledged at the July 6 meeting that legal issues and other factors would

have to be considered during the rezoning process. And the vote on July 13 to deny the

conditional use permit on Parcel A was split three to two. Accordingly, the record does not

support McLoughlin’s assertion that the Board made the actual zoning decision concerning

its property at the July 6 meeting. That meeting, therefore, was not, as a matter of law or

fact, the first meeting on the rezoning of McLoughlin’s property. And neither the statute nor

the Code required personal notice to McLoughlin of the general meeting before the Board.

See A.R.S. § 38-431.02.4 Accordingly, the trial court did not err when it determined that

Pima County did not violate the notice provisions of either the Arizona statutes or the Pima

County Code.



       4
       McLoughlin does not argue that Pima County failed to comply with the notice
requirements of § 38-431.02.

                                             8
                        CONSTITUTIONAL DUE PROCESS

A. Notice of July 6, 1999, meeting

¶16           McLoughlin argues that Pima County denied each of the owners due process

afforded by the United States and Arizona Constitutions when it failed to give the owners

personal notice of the Board’s July 6 meeting, which McLoughlin claims was a “pivotal

proceeding leading to a diminution of [his] property rights.”5 We review constitutional

claims de novo. Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs, 202 Ariz. 555, ¶ 7, 48

P.3d 505, 507 (App. 2002).

¶17           The United States and Arizona Constitutions prohibit the state from depriving

any person of “life, liberty, or property, without due process of law.” U.S. Const. Amend.

XIV; see also Ariz. Const. art. II, § 4. Due process requires, in part, that a party receive

adequate notice and have the opportunity to be heard at a meaningful time and in a

meaningful manner. See Hall v. Lalli, 194 Ariz. 54, ¶ 6, 977 P.2d 776, 779 (1999);

Comeau v. Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, ¶ 20, 993 P.2d 1066, 1070-71

(App. 1999); see also In re Hamm, 211 Ariz. 458, ¶ 42, 123 P.3d 652, 662 (2005).

¶18           In determining whether due process requirements apply to a particular process,

courts look at the nature of the proceeding. See Berenter v. Gallinger, 173 Ariz. 75, 82,

839 P.2d 1120, 1127 (App. 1992). The passage of a zoning ordinance is the exercise of a

legislative function and, thus, is generally not subject to full constitutional due process


       5
        Because we reject McLoughlin’s arguments concerning Parcel B, we need not
address whether the July 6 meeting was also the “pivotal point” in the rezoning process of
Parcels A and C.

                                             9
requirements, including personal notice. See Wait v. City of Scottsdale, 127 Ariz. 107, 108,

618 P.2d 601, 602 (1980); see also Hart v. Bayless Inv. & Trading Co., 86 Ariz. 379, 389,

346 P.2d 1101, 1108-09 (1959). This so-called legislative act doctrine applies not only to

the passage of an original zoning ordinance but also to all zoning ordinances passed by a

board of supervisors, including those resolving applications for rezoning a particular piece

of property. See Wait, 127 Ariz. at 108, 618 P.2d at 602; see also Melhorn v. Pima

County, 194 Ariz. 140, ¶ 4, 978 P.2d 117, 118 (App. 1998) (“[A]mendment of zoning

ordinances is an exclusively legislative function.”). Based on Arizona law concerning the

legislative act doctrine, McLoughlin was not entitled to personal notice in these zoning

decisions.

¶19           McLoughlin argues, however, that the legislative act doctrine does not apply

to the present case, relying on Harris v. County of Riverside, 904 F.2d 497 (9th Cir. 1990).

In Harris, the county amended its general plan and, in doing so, rezoned Harris’s property

from business to residential. Id. at 499. Although the county had posted the required notice

of hearing as mandated by the rezoning statute, Harris neither received personal notice nor

knew of the proceedings until after his property had been rezoned. Id. The Ninth Circuit

found that, because the county’s rezoning of Harris’s land was distinct from the amendment

of the general plan and affected a relatively small number of property owners, the decision

implicated due process concerns. Id. at 502. Based on these considerations, the court held

that “‘land use planning decisions less extensive than general rezoning c[an] not be insulated

from notice and hearing requirements by application of the “legislative act” doctrine.’” Id.,


                                             10
quoting Horn v. County of Ventura, 596 P.2d 1134, 1138 (Cal. 1979) (alteration in

Harris).

¶20           McLoughlin argues, notwithstanding any Arizona law to the contrary, that

Harris is binding on this court by virtue of the Supremacy Clause of the United States

Constitution. See U.S. Const. art. VI, cl. 2. But we need not decide whether Harris could

apply to some rezoning cases because it is distinguishable from this case for at least two

reasons. First, Harris determined that the actual rezoning of the property required due

process protection and did not extend due process protection to preliminary, “pivotal

proceedings.” 904 F.2d at 505-06. And, as we have previously noted, the Board had no

jurisdiction as a matter of law to rezone the parcels at the July 6 meeting. See Bell 51st

Investors, 108 Ariz. at 264, 495 P.2d at 1318. Therefore, the Board could not have rezoned

McLoughlin’s property at the July 6 meeting. Accordingly, we find Harris factually

distinguishable from this case.

¶21           Second, in Harris, the county downzoned Harris’s property as part of an

amendment to its general plan without giving him any personal notice. Here, McLoughlin

and the other appellant property owners received proper notice and were allowed to

participate in each and every hearing in the actual rezoning proceedings concerning their

particular parcels in accordance with the statutory scheme. Accordingly, Harris does not

apply, and McLoughlin’s due process rights, if any, were not violated.

¶22           McLoughlin seeks to avoid these defects in its argument by contending, in

effect, that the July 6 vote resulted in a de facto rezoning of the three parcels. But it has not


                                               11
directed us to any cases recognizing de facto rezoning and imposing due process

requirements. The case on which it relies, Herrington v. County of Sonoma, 834 F.2d 1488

(9th Cir. 1988), did not involve a de facto rezoning. In that case, the Ninth Circuit

determined that the county had violated the plaintiffs’ due process rights when, inter alia,

it downzoned the plaintiffs’ property without giving them notice of the final hearing. Id. at

1492-94. Herrington, just as Harris, involved actual, not de facto, rezoning. And, again,

in this case, Supervisor Grijalva specifically acknowledged at the July 6 meeting that legal

issues and other factors would have to be considered during the rezoning process. Finally,

as noted above, the Board vote on July 13 to deny the conditional use permit on Parcel A

was three to two. Therefore, no de facto rezoning of any of the parcels occurred at the July

6 meeting.

B. Bias of Commission member

¶23           McLoughlin also argues that Pima County violated its due process right to a

fair and impartial hearing when Pima County allowed William Staples, a Pima County

employee, to participate in the Commission’s proceedings on Parcel B. McLoughlin

contends that Staples’s employment with Pima County biased him in favor of the County

and that this bias materially affected the outcome of the hearing. We review this issue de

novo. Webb, 202 Ariz. 555, ¶ 7, 48 P.3d at 507.

¶24           Due process requires a “‘fair trial in a fair tribunal.’” United States v.

Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985), quoting In re Murchison,

349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 (1955). All decision makers,


                                             12
judges and administrative tribunals alike, are entitled to a presumption of “honesty and

integrity.” Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 148, ¶ 24, 985 P.2d 633,

639 (App. 1999). To rebut this presumption, the challenging party must show actual bias;

mere speculation about bias is not sufficient. See id. ¶¶ 24, 27.

¶25           A party challenging the presumption of a Commission member’s impartiality

could demonstrate the required actual bias by showing a violation of the statutes on conflicts

of interest, A.R.S. §§ 38-501 through 38-519. In particular, § 38-503(B) requires that

“[a]ny public officer or employee who has . . . a substantial interest in any decision of a

public agency shall make known such interest in the official records of such public agency

and shall refrain from participating in any manner as an officer or employee in such

decision.” In this case, Staples was a “public officer” as defined in § 38-502(8). The term

“substantial interest” is defined as “any pecuniary or proprietary interest, either direct or

indirect, other than a remote interest.” § 38-502(11); see also Hughes v. Jorgenson, 203

Ariz. 71, ¶ 8, 50 P.3d 821, 823 (2002).

¶26           McLoughlin has not argued and did not present any evidence showing that

Staples had “any pecuniary or proprietary interest” in the outcome of the rezoning proposal

of Parcel B. See Shepherd v. Platt, 177 Ariz. 63, 65, 865 P.2d 107, 109 (App. 1993)

(“Pecuniary means money and proprietary means ownership.”). And any loyalty that

Staples might have had toward his employer can be characterized as “general sympathy,

feeling, or bias,” which is insufficient to constitute a substantial interest. Yetman v.

Naumann, 16 Ariz. App. 314, 317, 492 P.2d 1252, 1255 (1972). Thus, McLoughlin did


                                             13
not show that Staples had a conflict of interest as defined in § 38-502 and did not overcome

the presumption that Staples was unbiased. See Pavlik, 195 Ariz. 148, ¶ 24, 985 P.2d at

639. Accordingly, the trial court did not err when it determined that Staples’s participation

in the Commission hearing did not violate McLoughlin’s right to due process.

¶27           Furthermore, we cannot accept McLoughlin’s assertion that Staples’s

participation was important to the final outcome of the rezoning proceeding and prejudiced

McLoughlin. At the Commission meeting on March 25, 2000, a Commission member

moved that its recommendation on the proposal to downzone Parcel B be the action it had

taken on December 29, 1999—that a decision be continued for eight months. Staples

offered a substitute motion to recommend approval of the downzoning. The Commission

rejected the substitute motion, by a vote of six to two, with Staples voting in favor of it. The

Commission then voted on the original motion—whether to delay the vote for eight

months—which failed by a four-four vote.

¶28           Another Commission member moved to recommend that the Board deny the

proposal to downzone Parcel B. A second member made a substitute motion to delay a

recommendation for four months so this court could rule on the constitutionality of A.R.S.

§ 11-829(F). Staples voted against the substitute motion, which failed by a four-four vote.

The Commission then voted on the motion to recommend that the Board deny the proposal

to downzone Parcel B. Staples voted against the motion, which passed by a six-two vote.

The Commission subsequently recommended that the Board deny the proposal to downzone

Parcel B.


                                              14
¶29           McLoughlin argues that, had Staples recused himself from the proceedings,

the motion to delay voting on a recommendation would have passed four-three, and the

recommendation would not have been sent to the Board at that time. As a result,

McLoughlin argues, Staples’s actions had a “decisive effect” on the proceedings, which

resulted in due process violations against McLoughlin.

¶30           But the only decisive effect Staples had on the proceedings was to allow the

Commission to vote on the proposal to downzone Parcel B. And, despite Staples’s vote to

the contrary, the Commission found in favor of McLoughlin and voted to recommend

denying the downzoning. McLoughlin has not explained how it would have benefited from

a delay or even if such a delay would have changed the final outcome. Thus, we agree with

the trial court that Staples’s participation in the proceedings was immaterial to the final

outcome.

           JURISDICTION OF THE BOARD TO REZONE PARCEL B

¶31           McLoughlin alternatively argues that the Board of Supervisors lacked

jurisdiction to rezone Parcel B. Specifically, McLoughlin argues that the Board failed to

follow the proper procedures when, at its July 6 meeting, it initiated the downzoning of

Parcel B without first receiving a recommendation from the Commission.

¶32           But McLoughlin appears to misconstrue the procedures for rezoning in A.R.S.

§ 11-829 and the Pima County Code. According to relevant provisions, an application for

rezoning may be made by the owner of the subject property, the owner’s agent, or the

County upon initiation by the Commission. § 11-829(A); P.C.C. § 18.91.030. After the


                                            15
application is submitted, the Commission must hold at least one public hearing before voting

on whether to recommend that the Board accept the proposal. § 11-829(C); P.C.C.

§§ 18.91.030 and 18.91.040. Only after the Board receives this recommendation does it

have jurisdiction to vote on the actual proposal. Bell 51st Investors, 108 Ariz. at 263, 495

P.2d at 1317. It therefore appears McLoughlin is attempting to make two arguments: 1) the

Board usurped the authority of the Commission by initiating the downzoning application on

its own, and 2) the Board did not receive a recommendation from the Commission before

voting on the final proposal.

¶33           Separating these two theories, we first address whether the Board usurped the

authority of the Commission when it initiated the downzoning of Parcel B. In presenting this

argument, McLoughlin correctly notes that only the owner of the subject property, the

owner’s agent, or the Commission can initiate a rezoning process. See § 11-829(A) and (E);

P.C.C. § 18.91.030. McLoughlin then argues that, because the Board initiated the

downzoning, it usurped the authority of the Commission. But the Board did not initiate the

proceedings; instead, it directed its staff to request that the Commission initiate the rezoning

proceedings. Nothing in the zoning statutes prohibits the Board from making such a request;

in fact, A.R.S. § 11-806(A) specifically authorizes the Board to request from the

Commission “a report or recommendation in connection with any matter relating to the

development of the county.” We therefore conclude that the Board had authority to request

the Commission to begin a rezoning process on Parcel B.               Furthermore, once the

Commission did so, any alleged error in the Board’s initial action became irrelevant to the


                                              16
rezoning proceedings because the Commission indisputably had authority to begin the

rezoning.

¶34           McLoughlin also appears to argue that the Board did not have jurisdiction to

rezone Parcel B because it did not first obtain a recommendation from the Commission as

required by § 11-829. But, again, this argument is based on the premise that the Board

rezoned the property at the July 6 meeting, an argument we have rejected as unsupported

both factually and legally. And the undisputed facts show that the Commission did send a

recommendation to the Board before the actual rezoning was approved in April 2000. We

therefore find this argument without merit.

                                      CONCLUSION

¶35           In rezoning McLoughlin’s real property, Pima County complied with the

notice and hearing provisions as well as the jurisdictional requirements in § 11-829 and

P.C.C. §§ 18.91.030 and 18.91.060. Because the Board did not rezone McLoughlin’s real

property at the July 6 meeting, full constitutional due process concerns did not attach to the

Board’s actions, and McLoughlin was not entitled to personal notice of that meeting. And,

because Commissioner Staples did not have a substantial interest in the rezoning of Parcel

B, his participation in the Commission hearing did not violate McLoughlin’s right to a fair

and impartial hearing. We therefore affirm the trial court’s grant of summary judgment in

favor of Pima County.

                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge

CONCURRING:

                                              17
____________________________________
JOHN PELANDER, Chief Judge


____________________________________
J. WILLIAM BRAMMER, JR., Judge




                                 18
