Apex lawsuit still stuck in appeals court

A lawsuit against the City of Maricopa over its zoning approval for Apex Motor Club is still slogging through the appeals court. Thursday, the court ruled on a transcript filing that was in dispute.

Until a decision is reached by the Court of Appeals Division 2 in the case of Bonita Burks v. City of Maricopa, Private Motorsports Group will keep its Apex plans idling. PMG spokesperson Mike Scerbo simply said there were no new developments.

“It’s the City’s practice to not elaborate on legal matters,” spokesperson Jennifer Brown said.

However, the new attorney for Burks said his client is awaiting a decision on his request for an oral argument. The timing of that is unknown.

Timothy La Sota, who previously represented the committee Maricopa Citizens Protecting Taxpayers in its failed actions against the City of Maricopa and Apex, took over Burks’ appeal from Grant Woods and Michael Riikola in April. His arguments for Burks are similar to those he made for MCPT, a case which was also first heard by Superior Court Judge Robert Olson.

In September, Olson ruled Burks did not have standing to challenge the issuance of the permit because she could not prove her claim that potential noise, odor and traffic from the motorsports track would cause her injury. Noise studies conducted for PMG indicated nearby trains were louder than sportscars would be.

“We have a situation where a Superior Court judge has found the City’s actions to be unlawful but that Ms. Burks does not have standing to challenge the unlawful actions,” La Sota said. 

That reference is to Olson’s addendum in his ruling against Burks, a non-binding opinion that also suggested the City was wrong to grant the permit. That is the crux of Burks’ appeal, which was filed in November.

Riikola, one of Burks’ previous attorneys who took the case to the Court of Appeals, was granted extensions for filing briefs in April. Soon after, La Sota applied to be substitute counsel in place of Riikola and Woods.

May 5, La Sota requested an oral argument.

Yet to decide on that request, Presiding Judge Gary Vasquez did rule on a debate about the transcript Thursday.

La Sota had filed a copy of the transcript from the September hearing with the appellate court. The City claimed the filing did not abide by the rules, and “absent portions of a record supports the trial court’s ruling,” something Burks’ counsel denied.

Vasquez struck Burks’ transcript filing. It is a small skirmish in a battle that delays any potential development of the property on the northwest corner of State Route 238 and Ralston Road.

La Sota’s earlier effort with MCPT to get the zoning matter on a ballot for a public vote was denied by the Arizona Supreme Court. Meanwhile, in the second suit, Burks’ previous counsel had argued the City had misapplied the zoning code in granting a conditional use permit.

“The City has done everything in its power to squelch our efforts to give the public a voice through a referendum vote on the City’s illegal actions,” La Sota said. “We will keep fighting to vindicate Ms. Burks’ rights as a citizen of Maricopa to have her elected city representatives actually follow the law.”