The members of the Sedona City Council passed an ordinance to change the procedure for passing future ordinances during their Tuesday, July 11 meeting and then immediately moved on to consider the passage of another ordinance.
City code previously required that each newly-proposed ordinance have “at least one reading.” In practice, each new ordinance has generally received at least two public hearings, although City Attorney Kurt Christianson noted during the meeting that the recent ordinance prohibiting public urination was “considered by council and adopted at a single meeting.”
Councilman Pete Furman and Councilwoman Kathy Kinsella proposed on April 25 that the City Code be updated to reflect current practice, with a requirement that each new ordinance be read at a minimum of two public meetings. The amendment’s language specifies that consideration of an ordinance by the Planning and Zoning Commission will count as one hearing toward this requirement, and that in cases of emergency, new ordinances may be adopted after a single reading.
“This is something that council member Furman and I both brought forward because we thought that it codifies really what we do in practice,” Kinsella said. “This is the stopgap measure to close that potential pitfall with the right exceptions in there, I think, for emergencies … this is a great way to put best practice into writing.”
The council approved the ordinance unanimously 6-0 without further discussion — Furman was absent from the meeting — and it will be in effect by the time of the second council meeting in August.
Council next moved on to consider amending Chapter 12 of the City Code to require permits for the temporary placement of any item, such as construction equipment, in a public right-of-way.
“There have been recent incidents of persons encroaching on public right-of-way, including blocking public access, in non-construction and/or non-permanent ways,” the agenda bill read. City Manager Karen Osburn described it as “a cleanup ordinance.”
Two council members had other concerns.
“Let’s say somebody theoretically wants to protest something that’s happening at a local restaurant or store,” Kinsella suggested. “They want to be out there for several hours with their sign, and they bring a folding chair to set up to sit in while they’re out there for their several hours doing their First Amendment right protest. That chair, as I read the language that was provided, is personal property that would now be prohibited or need a permit. I don’t think First Amendment rights of expression should require a permit. Am I reading this correctly, that this would now prohibit somebody from setting up in that way?”
“Yes, it’s worded that broadly, unintentionally,” Christianson said, but added that “the right to free speech and assembly would trump this ordinance.”
“Is this something that at some point you’re anticipating would be litigated?” Kinsella asked. “Do we want to do something that we think is going to end up in a court that way?”
“The purpose of the ordinance isn’t to go after First Amendment protestors in any way,” Christianson said. “But yes, it could be used in extreme scenarios to prohibit other types of encroachments as well.”
“I would be looking for some language in here that would address that [protestor’s right] somehow,” Kinsella said.
Councilman Brian Fultz also addressed the potential for city use of the ordinance to prohibit a particular type of encroachment.
“When I first read this, when I saw the reference to porta-potties, I instantly was thinking, what else is this trying to get at?” Fultz asked. “Encroachment involves personal property, so is this some way of trying to address actions of unhoused individuals, for instance? To me, my reading of this would allow for action to be taken basically immediately to tell somebody to get off of public space with their personal property. What’s your reaction to my read of that?”
A transient man set up a camp along a public easement on the south side of State Route 89A in the fall of 2022 and remained at the location for several days due to confusion as to whether it was a city of Sedona or Arizona Department of Transportation easement, and whether removal of the man fell under the purview of the Sedona Police Department, Sedona Code Enforcement or Arizona Department of Public Safety.
“That’s not the intention behind the ordinance, but it could be used that way,” Christianson admitted. “Phoenix has a similar ordinance.”
He pointed out that Maricopa County Superior Court Judge Scott Blaney recently faulted the city of Phoenix for failure to remove a homeless encampment under the provisions of a similar ordinance.
The council went into executive session for 19 minutes for legal advice, then returned to public session. Kinsella raised another question in addition to her First Amendment concerns.
“We just passed an ordinance requiring two readings so we could consider these questions without it being a very quick read and action,” Kinsella said. “Based on that, I can’t support this at this time.”
“It’s either an emergency, and we have a process for that, or it needs to be adopted in the way in which we just passed our two-reading ordinance, so I look forward to voting on it at its second reading,” Vice Mayor Holli Ploog said. Fultz concurred with Ploog and Kinsella.
Mayor Scott Jablow and Councilwomen Melissa Dunn and Jessica Williamson expressed their readiness to approve the ordinance immediately.
As the council’s statements suggested the motion would have tied 3-3 and thus failed, and the ordinance would have had to be put back on a future agenda for reconsideration anyway, Williamson then proposed that the vote be deferred until the next meeting, thereby conforming to the newly-amended code requirements, which passed unanimously.
