## Facts

- Arizona’s incorporation statutes allow incorporation by (1) a two‑thirds elector petition requiring the county board to incorporate, or (2) a ten‑percent petition requiring the board to call an incorporation election.
- A separate “urbanized area” statute bars incorporation within specified distances of an existing municipality unless the existing municipality consents or declines annexation after a statutory petition process.
- Residents in Pima County sought to incorporate areas known as Tortolita and Casas Adobes, which lay within the statutory urbanized area of nearby municipalities, including the City of Tucson.
- Tucson opposed the incorporations and relied on the urbanized-area consent condition.
- Tucson filed an action for declaratory and injunctive relief; the incorporation proponents intervened and counterclaimed, asserting state and federal constitutional challenges to the municipal-consent requirement.
- The superior court upheld the statute’s constitutionality and entered judgment for Tucson and the State; the challengers and Pima County appealed.

## Issues

1. Whether Arizona may constitutionally require the consent (or non-annexation decision) of a proximate municipality before an area within its statutory urbanized area may incorporate.
2. Whether the municipal-consent condition violates equal protection, substantive due process, or voting/association rights.
3. Whether the consent condition is an unconstitutional delegation of legislative power to existing municipalities.

## Decision

- The Arizona Court of Appeals affirmed the judgment for Tucson and the State.
- The court held that A.R.S. § 9‑101.01(B)(1)’s municipal-consent requirement for incorporation in an urbanized area is constitutional.
- The court applied rational-basis review and found legitimate state objectives supporting the consent condition.
- The court rejected claims of unconstitutional delegation and rejected arguments that the statute infringes a protected right to vote on incorporation.

## Legal Principles

- Municipal incorporation is a legislative function; municipalities and prospective municipalities have no inherent constitutional right to exist or to be created absent legislative authorization.
- When no fundamental right or suspect classification is implicated, conditions on incorporation are reviewed under rational-basis scrutiny.
- A legislature may limit incorporation near existing municipalities to serve legitimate interests such as orderly urban development, coherent planning, and protection of existing municipalities’ fiscal and annexation-related interests.
- Conditional legislation is permissible when the legislature sets the policy and criteria and permits specified actors to affect implementation within that framework; this is not necessarily an unlawful delegation of legislative power.
- Limiting when an incorporation election is available does not, by itself, violate voting or political association rights where the state has not created a constitutional entitlement to an incorporation vote.

## Conclusion

The court held that Arizona may condition incorporation within an urbanized area on the consent (or non-annexation) of nearby municipalities, and that this consent requirement is rationally related to legitimate state interests and does not violate state or federal constitutional protections.


City of Tucson v. Pima Cnty., 199 Ariz. 509, 19 P.3d 650 (Ct. App. 2001)