Judge tosses Scottsdale dust referendum

A judge has thrown out a Scottsdale referendum that looked to overturn dust-control measures, the second time the court tossed an issue from the city's Sept. 2 election ballot.

Maricopa County Superior Court Judge Peter Swann ruled Monday that the City Council's vote in March to approve the measures was administrative - and not legislative - and therefore not subject to a public vote. The judge ruled that the council was responding to mandates coming from the state Legislature and not setting its own policy.

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"The legislature did more in this case than merely spell out a policy objective. It prescribed a series of specific and uniform dust-control measures that each town in the affected area was required to adopt," Swann wrote.

The ordinance subject to the referendum included dust-control measures on residential and commercial properties, including the treatment of driveways and parking lots.

The lawsuit that challenged the referendum was filed by former Scottsdale Councilman Kevin Osterman, who has gathered signatures for Mayor Mary Manross and Councilwoman Betty Drake's re-election campaigns. Both Manross and Drake voted in favor of the dust-control measures, but said they were not involved in the filing of the lawsuit.

Osterman said Monday he was not surprised by the ruling.

"I'm sorry I was forced into a situation where I had to act, and I did have to, and it turned out well," he said.

Osterman said his action was not tied to the campaign, but rather to save the city from losing federal dollars for not being in compliance with the dust-control mandates. Osterman said the theory being circulated by Manross' critics and bloggers that he was a "shill" for Manross and Drake is baloney.

"They are just jealous," Osterman said. "I've done more for Scottsdale in one day than these folks have done in their lives."

Amy Ganley, treasurer of the Unjust Dust political committee that gathered nearly 2,200 valid signatures, did not hire a lawyer to participate in the lawsuit. Ganley could not be reached for comment. Paul Norman, Scottsdale assistant city attorney, said during oral arguments Thursday that the city was arguing that the council's act was legislative to ensure a greater flexibility in responding to legislative mandates. Norman agreed with the judge's assessment that the city was not arguing to advocate the issue go to the voters.

Swann is the same judge who in April threw out the Hanover apartment and retail complex referendum because of the improper naming of a political committee.

The Sept. 2 ballot will still include the mayor and council races, along with partisan primary races.