The purpose behind the filing of the Honda Bow Road litigation against the town by Honda Bow Road property owners was to protect residential property rights and preserve the desert lifestyle and wildlife that travels among us.

Should any of the four Honda Bow Road litigants (Stockford, Ekrom, Johnson, Sawazhki/Larson ) tell you that they settled their claim against the town don’t believe them.  The settlement negotiations failed --- as I told them it would.  The Honda Bow Road litigants entered into the settlement negotiations without retaining any leverage with which to negotiate a settlement.  There was time after the settlement negotiations failed to reverse course and proceed to summary judgment or trial, however, they chose not to pursue either course.  Instead the four Honda Bow Road litigants have chosen to let the court dismiss the Complaint for lack of prosecution.

In excess of $50,000 was paid out in attorney’s fees by all Honda Bow Road litigants -- all for naught.  It was my opinion that we should be holding the Honda Bow Road attorney accountable for the money he was being paid rather than whining and complaining to each other about the money we were paying to him.  But, obviously, I was alone in that opinion.

It takes moral strength and money to protect property rights and our desert lifestyle.  That the Honda Bow Road litigants paid out in excess of $50,000 in attorney’s fees evidences that money isn’t what was lacking.

The court order that is the precursor to the order that will formally dismiss the Complaint is dated April 19, 2017 – entered more than a month before my formal withdrawal.  Yet, at no time between April 19th and May 21st (the date of my formal withdrawal) did the Honda Bow Road attorney share this April 19th court order with the Honda Bow Road litigants.  That 150 Day Minute Order states in part: “The purpose of the Order is to provide notice regarding the parties’ obligations under Rule 16 of the Arizona Rules of Civil Procedure.  Failure to comply with Rule 16 will result in dismissal of this case.”  

Today, August 16, 2017, the Honda Bow Road complaint against the town was placed on the court’s Dismissal Calendar.

Without the moral strength of other Creekers, Cave Creek would not be Cave Creek.  Every property owner in Area 96-1 is a beneficiary of the moral strength and financial sacrifice made by Area 96-1 residents in 1997.  The four Honda Bow Road litigants enjoy these benefits without having paid anything for them.  But, when the situation arose for them to do what was necessary to carry the torch to protect property rights, the desert lifestyle, and the wildlife, the price was too high and the moral strength was not there. 

The choice made by the four Honda Bow Road litigants to allow the court to dismiss the Complaint for lack of prosecution is a middle finger salute to Area 96-1 residents and other members of the Cave Creek community who, because of their sacrifice, have made Cave Creek a place where these four Honda Bow Road litigants have chosen to live. 

When people show you who they are, believe them..... Maya Angelou.

Janelle Smith-Haff
8/16/2017

If you'd like to make a comment just remember be nice, be honest, or be deleted.

The reason I’ve avoided discussing how the Honda Bow Road litigation against the town was going is because for ten months it hasn’t been “going” anywhere.  This article is intended to shed light on the status of the litigation with respect to  my involvement  before the information becomes distorted in the S*****n N***s or elsewhere.

BACKGROUND:
The first step in any litigation against a government/public entity requires service of a Notice of Claim (NOC) letter on the government/public entity, i.e., the town of Cave Creek.  According to the Arizona Supreme Court, the statutory purpose of the NOC is “to allow the public entity to investigate and assess liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting.”

The five Honda Bow Road litigants served the town with the required NOC letter on August 31, 2016.  While the town was not required to respond, under the NOC statute the town was required to conduct at least one hearing to “investigate and assess liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting” with respect to the effect our litigation would have on the town. 

The Honda Bow Road litigants’ August 31, 2016 NOC qualifies as a “legal matter” under the NOC statute.  Under Arizona law, all discussions, deliberations, considerations, or consultations by town council or town staff concerning legal matters must be conducted in compliance with the state’s Open Meeting Law.  Ariz. Att'y Gen. Ops. 75-8, I79-4.  See also A.R.S. §§ 38-431.01(A), -431(3) and Ariz. Att’y Gen. Op. I05-004. 

There is no evidence that the then sitting members on town council: Mayor Francia, Vice Mayor LaMar, council members Ernie Bunch, Susan Clancy, Dick Esser, John Ford and Tom McGuire conducted any hearings in compliance with the Open Meeting Law to perform its statutory requirements under the NOC statute.

OPEN MEETING LAW VIOLATION:
A review of every town council meeting agenda item since service on the town of the NOC reveals that there was no Executive Session conducted by town council to discuss the NOC letter.  The mayor and council members at that time were: Mayor Francia, Vice Mayor LaMar, council members Ernie Bunch, Susan Clancy, Dick Esser, John Ford and Tom McGuire. 

A review of every town council meeting agenda item since service on the town of the NOC letter reveals that there was no town council meeting or other hearing conducted to publicly discuss the NOC letter.  The mayor and council members at that time were: Mayor Francia, Vice Mayor LaMar, council members Ernie Bunch, Susan Clancy, Dick Esser, John Ford and Tom McGuire.

Ignorance of the Open Meeting Law cannot be used as an excuse for non-compliance with the NOC statute.  There are Cave Creek town council meeting minutes which contain evidence of discussions about the state’s Open Meeting Law.  On June 12, 2006, there was a Special Town Council Work Session for the mayor and council members to receive training on Open Meeting Law.  Those members at the Work Session included Mayor Francia, now Mayor Ernie Bunch, and now Councilman Tom McGuire.

On August 4, 2008 there was a town council meeting discussion conducted by then town attorney Gary Birnbaum to provide guidance and advice on the Open Meeting Law.  The town council members in attendance for Gary Birnbaum’s discussion included Mayor Francia, now Mayor Ernie Bunch, and now Councilman Tom McGuire. 

ALLEGATIONS IN COMPLAINT:
Because there was no acknowledgement or response by the town to the NOC letter, on November 10, 2016, the five property owners on Honda Bow Road filed suit against the town in Maricopa County Superior Court, CV 2016-017127.  Along with its other claims, the Complaint alleges that the town, by not requiring permit(s) before the commencement of the grading and grubbing activity on the Lehman property, violated its own town ordinances, town codes, technical design guidelines, as well as the Area 96-1 Annexation and Development Agreement (AA) because the Lehman property exists in Area 96-1. 

The town denied all allegations in the Complaint.

The only other document prepared by the attorney representing the Honda Bow Road litigants is a court-mandated discovery pleading titled “Plaintiff’s Initial Disclosure Statement.”  Attached to this pleading was to be a list identifying 44± documents which support the allegations in the NOC and the Complaint.  The Honda Bow Road attorney began preparation of this pleading in December, 2016, but there is no evidence of it being filed with the court.

COURSE REVERSAL:
Instead of continuing forward with the litigation to a summary judgment or trial conclusion, on March 2, 2017 Honda Bow Road litigants Stockford and Ekrom began advising the other Honda Bow Road litigants that they wanted to change the terms of the Complaint and settle the litigation against the town.  The only claim going forward would be a claim to stop the town’s extension of Honda Bow Road onto the Lehman property.  The Stockford and Ekrom litigants felt the attorney’s fees had become too much of a financial burden for them.  They also stated that pursuing all of the allegations in the Complaint --- which they had agreed to pursue --- needed a much broader (financial) coalition than the five households on Honda Bow Road. 

Any settlement would require waiver by the Honda Bow Road litigants of all of the other allegations in the Complaint.

As I am the only litigant with a signed AA I advised them that if a settlement based solely on the Honda Bow Road extension did not afford me greater property protections on Honda Bow Road than what I already possessed under the AA I would not agree to settle and would not agree to pay any of the attorney’s fees associated with the settlement.  If these terms were not acceptable I would legally and financially withdraw from the litigation, enabling them to pursue their limited claim for settlement with the town.

Another offer for my continued participation was proffered to me by the Honda Bow Road litigants.  My acceptance of this offer was conditioned on the inclusion of a provision in the settlement agreement reciting the statutory requirements under Arizona law, A.R.S. Title 9, Ch. 4, Art. 7, Sec. 9-471, involving annexations and development agreements.  Further, if the settlement negotiations failed, the Stockman and Ekrom litigants would have to agree to withdraw, enabling litigants Johnson, Sawazhki/Larson and myself to pursue a motion for summary judgment against the town.

Without approaching the town, the Honda Bow Road attorney advised that the settlement negotiations would fail if the statutory provision that was a condition of my continued participation was included.  Instead of the Stockford and Ekrom litigants withdrawing, however, the Johnson and Sawazhki/Larson litigants agreed to join them and pursue settlement instead of a motion for summary judgment. 

PRECEDENT SETTING?
The AA is a combined annexation and development agreement.  In 1997, at the time of the annexation, Area 96-1 consisted of 108 parcels and 70 property owners.  Of those 70 property owners 44 have no signed AA and 26 do have a signed AA. The language in all 26 AAs are boilerplate identical; however, a few of the AAs contain addendums requested by the property owner and agreed to by the town.

It has always been this author’s belief and understanding that the property protections and development rights contained in the AA applied to all parcels and property owners in Area 96-1.  Because it is the territory consisting of Area 96-1 that was annexed, part of this understanding is based on the fact that the AA runs with the land.  In addition, the town’s assurances to Area 96-1 property owners during the February 13, 1997 annexation negotiations included the town’s claim that “. . . the Agreement does not give or take away any special privileges to anyone.  All will receive equal treatment.” 

A behind-the-scene sticking point I have had with the attorney representing the Honda Bow Road litigants is that my belief and understanding of the AA is not the same belief and understanding possessed by him. Under his legal theory not all Area 96-1 property owners will receive equal treatment.

The Honda Bow Road attorney believes that any assertion by him claiming that the AA benefits all Area 96-1 property owners would undermine the credibility of the claims being made by Honda Bow Road litigants.  In response to my inquiry seeking clarification for his belief and understanding of the AA, the Honda Bow Road attorney responded: “While we understand that you believe that all residents in Annexation Area 96-1 should benefit from the provisions of the AA, the AA clearly provides that there are no rights created in anyone who is not a party to that specific agreement.  We have no colorable legal argument to the contrary.”

The Honda Bow Road attorney has never provided citation to any statute or case law to support his legal theory.

Under Arizona law, no territory can be annexed unless the governing body (town of Cave Creek) provides the territory to be annexed (Area 96-1) with a development agreement.  The legal description attached to every AA is for the entire Area 96-1 territory.  The statute A.R.S. Title 9, Ch. 4, Art. 7, Sec. 9-471 is as follows:

9-471. Annexation of territory; procedures; notice; petitions; access to information; restrictions
“O. On or before the date the governing body adopts the ordinance annexing territory, the governing body shall have approved a plan, policy or procedure to provide the annexed territory with appropriate levels of infrastructure and services to serve anticipated new development within ten years after the date when the annexation becomes final pursuant to subsection D of this section.”


The Honda Bow Road attorney’s legal theory raises many legal questions.  For example, as there are 44 property owners in Area 96-1 who do not have a signed annexation and development agreement, without evidence of an AA in compliance with the statutory provision § 9-471, were these 44 properties unlawfully annexed into Cave Creek?  If not lawfully annexed, does this mean that these 44 properties are still a County island?  If the 44 properties are still a County island, do these 44 property owners have the right to vote in Cave Creek elections? 


The most baffling aspect about the Honda Bow Road attorney’s legal theory is his claim that the 44 property owners in Area 96-1 without a signed AA have no right to assert a claim or rely on the AA to prove a claim.  The four Honda Bow Road litigants pursuing settlement with the town have no signed AA, yet the Honda Bow Road attorney is negotiating a settlement which contains the property protections enshrined in the AA. 


There’s slightly more than 4 years remaining before the AA expires in 2022.  I am not an attorney, but without a judicial decision over this issue, and because I am the only plaintiff with a signed AA, I believe that my participation in any settlement would result in a de-facto affirmation of our attorney’s legal theory and without a doubt set a precedent that would be used by the town to further deny the 44 Area 96-1 property owners without a signed AA their ability to protect their property rights in reliance of the AA. 


MY FORMAL WITHDRAWAL FROM LITIGATION:
For the reasons stated above, on May 21, 2017, I formally advised the Honda Bow Road litigants and the Honda Bow Road attorney that my AA and I were withdrawing from the litigation concurrent with the approval by the court of the settlement agreement between the four Honda Bow Road litigants and the town.


CHANGES TO CAVE CREEK
The town/Lehman relationship has brought changes to Cave Creek.  These changes are not the result of town council or town staff transparency.  For example, town ordinances prohibit the planting of grass, yet without any public hearing to change the ordinance to allow the planting of grass, the town has allowed multi-acre grass fields on the Lehman property.  Our now Mayor Ernie Bunch was aware of the town’s approval allowing Lehman to plant grass during the mayoral election.   

Town ordinances also prohibit commercial activity on residential property.  Yet, in furtherance of the town/Lehman relationship and Lehman’s stated intent to use his property for fund raising charity events, the town issued a permit allowing the barn on the Lehman property to be remodeled for use as an event hall for his intended events.  Once the Lehman property has an established unauthorized use for commercial activity will the town approve a commercial up-zoning?  Was another step toward this commercial up-zoning the reason why the proposed 2015 General Plan promoted mixed use in residential zones? 

Under the law, the benefits the town has already given to the Lehmans must be immediately and equally given to all Creekers.  This means allowing all Creekers to plant grass fields (lawns), allowing all Creekers to suck precious water from the aquifer and CAP allotment in order to keep their fields green, and allowing Creekers to use their residentially-zoned property for their own commercial activity.  No permits required.

Certainly, these changes will destroy our unique rustic roots and desert rural character, but that’s what happens when citizens believe that the price of their rights should be paid by someone else.

R.I.P. Cave Creek.

Janelle Smith-Haff
June 19, 2017
[email protected]
You are invited to post your comments, opinions, and suggestions.  Just remember: be nice or be deleted.

The process undertaken by Treat Creekers Fairly (TCF) giving the town numerous opportunities to address and respond to residents’ grievances has provided necessary documentation to establish that the town is in default under Sec. 5.11 of the “Development/Annexation Agreement Between Town of Cave Creek And insert property owner name” (hereinafter referred to as “AA”). 

After a comprehensive review of the submitted documentation to the law firm that wrote the AA, it was the law firm’s opinion that town officials never had any intention of complying with the AA and that the town is in violation of the AA for failing to comply with town ordinances, codes, and technical design guidelines.  Based on this, it was also their opinion that the town’s failure/refusal to respond to the grievances of residents as required within the sixty-day (60) period after receipt placed the town in default under Sec. 5.11 of the AA. 

Property owners in Area 96-1 are entitled to all available remedies under Arizona law.  Those remedies can include an extension of the AA, restoration of the desert on Lehman parcel #1 to its natural state, and reimbursement to residents of attorney’s fees.  For those who inquired, the remedy does not include de-annexation as Arizona State statutes allow de-annexations only within the first ten years. 

During the consultation with the law firm, it was learned that the firm no longer does litigation work; however, they did recommend the name of a litigation lawyer for representation in the default claim against the town.  Because there is no immediate time restriction for exercising any right to these remedies, and because it was felt that the town would continue to violate the AA until its expiration in 2022 thereby creating repetitive and costly litigation for residents, the discussion included options to pursue now while collecting donations to obtain remedies under the default.

One of the suggested options was to either hire a PR firm or do the work ourselves of creating media attention by using Twitter and other social media platforms to spread information.  By doing it ourselves, all monies donated will be reserved to pursue our remedies under the default.  (The attorney’s fees must be paid in advance of the litigation (hence “reimbursement”.) 

In order to reimburse to donors the amount of their donation, the “Donate” button on the www.treatcreekersfairly.com website has been disabled because PayPal deducts a 3% fee from each donation.  TCF will continue to accept donations via personal or business check at: Treat Creekers Fairly, Inc., POB 4071, Cave Creek, AZ 85327, or arrangements can be made for pick up.  A record of all donations is being kept so please make sure your name and mailing address is legible.

The discussion also included the need to continue to monitor the activities on the Lehman property.  TCF is asking that residents and neighbors continue to monitor the activities, take photos, and submit your findings and concerns to [email protected]. 

Every resident living east and west of the Creek benefits from the desert preservation and rural lifestyle protections under the AA.  Even if you don’t live in Area 96-1, if there is an interest in your neighborhood for having a meeting to share ideas and discuss other options, a meeting can be scheduled.  Email: [email protected] with your request.

If you would like to view and download the 26 page .pdf titled “Development/Annexation Agreement," please go to the www.treatcreekersfairly.com website.

The Default and Remedies provision in the AA is as follows:
“5.11.  Default; Remedies.  Failure or unreasonable delay by any party to perform any term or provision of this Agreement for a period of sixty (60) days after written notice thereof from another party shall constitute a default under this Agreement.  The notice shall specify the nature of the default and the manner in which the default may be satisfactorily cured.  In the event of a default under this Agreement by any party, the non-defaulting party shall be entitled to all remedies in both law and in equity, including, without limitation, specific performance and the right to perform the obligation(s) of which the defaulting party is in default and to immediately seek reimbursement  from the defaulting party of all sums expended in order to cure such default, together with interest on all such sums from the date such sums are expended by the non-defaulting party for the purpose of curing the default to the date such sums are repaid in full.”  [source: AA, “Agreement”  § 5, ¶ 5.11, pg. 12].

[email protected]

Please post your comments, opinions, and suggestions.  Just remember: be nice or be deleted.

The following is a summary of the information provided to the law firm that wrote the “Development/Annexation Agreement Between Town of Cave Creek And insert property owner name.”

VIOLATIONS TO THE AA COMMITTED BY THE TOWN:
1.  Failure/refusal by the town to require permits resulted in the town’s failure to preserve the existing desert and rural character of Area 96-1 and the Properties.
2.  Fund raising is prohibited on all residentially-zoned parcels in Cave Creek, not just parcels in Area 96-1.   
3.  The use of the property for fund raising purposes constitutes an unauthorized rezoning of the Lehman‘s residentially-zoned property to commercial. 
4.  The town conspired with Tom & Melissa Lehman to extend Honda Bow Road. 
5.  Former Town Manager Usama Abujbarah’s refusal to maintain Morning Star Road with the intent to coerce residents to make improvements to Morning Star Road.
6.  Violation of right-of-ways provision.  
7.  Installing more than two lanes on Spur Cross Road. 
8.  The proposed fire protection property tax effect on the zoning and desert and rural character of the area.
9.  Former Town Manager Usama Abujbarah’s fraudulent statements in grant funding application for road improvements on Morning Star Road. 
10.  Proposed settlement agreement in the Town v. Freeman lawsuit.
11.  Intent to violate.

With respect to the claim “Failure/refusal by the town to require permits resulted in the town’s failure to preserve the existing desert and rural character of Area 96-1 and the Properties.”  In August, 2015, town officials claimed that no grading and grubbing or other permits were required for the work begun on Lehman parcel #1.  More than two acres of desert was scraped clean and replaced with artificial turf.  This degree of loss of desert violates the town’s agreement under the AA to preserve the existing desert and rural character of Area 96-1 and the Properties.  This violation is inclusive of the entire Agreement, but specifically provisions #1-8 recited below.  For town permit requirements see www.cavecreektownhallblog.com, click on topic “Golf Course”, scroll to article “63 Reasons Why Permits Are Required;” see, December 2, 2015 attorney LaSota letter to town officials; see January 19, 2016 Board of Adjustment Appeal.

With respect to the claim “Fund raising is prohibited on all residentially-zoned parcels in Cave Creek, not just parcels in Area 96-1.”  At an 8/29/2015 neighborhood meeting attended by 28 Cave Creek residents, Tom Lehman stated that he intends to hold/sponsor fund raising events on the property using his own philanthropic charity and perhaps use by other groups and organizations.  He also stated that he had shared this information with town officials.  Fund raising is not allowed on any residentially-zoned property in Cave Creek.  Fund raising is allowed only on commercially-zoned property.  There is no property in Area 96-1 zoned Commercial.  Given that the town has no ordinance or code allowing any fund raising activity on residentially-zoned property, the town is in violation of its own ordinances, codes, technical design guidelines and the entire AA, but specifically provision #1 recited below.  See also Board of Adjustment Appeal, starting at pg. 4;  see www.cavecreektownhallblog.com, click on topic “Golf Course”, scroll to article “63 Reasons Why Permits Are Required” reasons numbers 52, 53, 54, and 55;  see discussion in article titled “How Many Green$ Does It Take To Make A Golf Cour$e? Part 1: Property’s Plans Prohibited” also on the blog; see December 2, 2105 attorney LaSota letter to town officials starting at pg.  5.

With respect to the claim “The use of the property for fund raising purposes constitutes an unauthorized rezoning of the Lehman‘s residentially-zoned property to commercial.”  Residents believe that the town’s complicit inaction and ignoring of town ordinances, codes and technical design guidelines is a backdoor attempt by the mayor and town council members to create an “established primary commercial use” under the “Special Events” section of the Town Code in order to justify a formal re-zoning of the Lehman property when the AA expires.  The AA authorizes only residential zoning.  In combination with violations to town ordinances, codes, and technical design guidelines as set forth in “63 Reasons Why Permits Are Required,” any authorized and/or unauthorized establishment of a primary commercial use on parcels in Area 96-1 violate the AA, and specifically provision #1 recited below.

With respect to the claim “The town conspired with Tom & Melissa Lehman to extend Honda Bow Road.”  The background is as follows:  During the 2014 Christmas holidays, a representative from the town (who is no longer employed with the town), along with Tom and Melissa Lehman met at the home of two residents living on Honda Bow Road.  At the meeting the two residents were told that an extension of Honda Bow Road to the Lehman property was a “done deal.”  At the meeting with the two homeowners the Lehman’s stated that the extension onto Honda Bow Road was needed for a house.  However, at the 8/29/2015 neighborhood meeting Tom Lehman stated that they would not be living on the property within the foreseeable future but in any event not for at least another 5 to 7 years.  The Lehman’s have residential ingress and egress to and from their property and it is not over Honda Bow Road.  The Honda Bow Road extension sought by the Lehman’s is not needed for any reason other than for their fund raising events and for future expansion of density on the property.  Though this attempt was (temporarily) halted, the AA provisions which the town nevertheless violated are #1 and #7, recited below.

With respect to claim “The town refused to maintain Morning Star Road.”   Former Town Manager Usama Abujbarah intentionally refused to maintain Morning Star Road.  AA provision #5 recited below specifically requires that the town maintain Morning Star Road on the same schedule as the other roads in Cave Creek.  Former Town Manager Usama Abujbarah’s refusal to maintain the road was intended to coerce Area 96-1 residents into agreeing to make improvements to Morning Star Road.  The town’s intent was to widen Morning Star Road to a width of 60-feet in preparation for future east-west creek crossing development. In support of the intended development of Area 96-1 there are water pipes running up both Spur Cross Road and 24th Street, and Morning Star Road is the planned connection.  This planning for future development is prohibited under the AA and specifically under AA provisions #1, #2, #3, #4, and #6 recited below. 

With respect to claim “Violation of right-of-ways provision.”  In 2012, a property title search conducted by Area 96-1 property owners in coordination with legal and title company officials discovered that at the same time the town was negotiating the AA with Area 96-1 residents the town was also intending and planning to give right-of-ways to improve and extend Morning Star Road over the creek to 24th Street.  These right-of-ways were intended to benefit Mark Stapp, the developer of Cahava Springs.  See AA provisions #s 1-6 recited below. 

With respect to claim “Installing more than two lanes on Spur Cross Road.” Morning Star and Honda Bow Roads are the only roads on Spur Cross Road with left-hand turn lanes, and the only roads north of the Town Core that can be utilized for a creek crossing to 24th Street.  The left-hand turn lanes at Morning Star and Honda Bow Roads exceed the two-lane limit on Spur Cross Road under the AA.  There are no other left-hand turn lanes on Spur Cross Road except those at Morning Star and Honda Bow Roads.  The left-hand turn lanes violate AA provisions #2, #3, #4, #6, #7 and #9 as recited below.

With respect to “The proposed fire protection property tax effect on the zoning and desert and rural character of the area.”  In 2012 it was discovered that the town’s support for a property tax for fire protection included the ability for Rural Metro, as a utility company, to exercise eminent domain and build a fire station at the SW corner of Morning Star Road and Spur Cross.  Approval of the fire tax would have opened up Morning Star Road as the thoroughfare for the creek crossing and negatively impacted the desert and rural character of Area 96-1.  Former Town Manager Usama Abujbarah had been promoting a fire property tax since 1997, the year the AA was signed.   Had the tax been approved by voters it would have violated provisions #1-8 of the AA as recited below.

With respect to claim “Former Town Manager Usama Abujbarah made fraudulent statements in grant funding application for road improvements on Morning Star Road.”  In 2005, former Town Manager Usama Abujbarah applied for federal funding to pave, widen and improve Morning Star Road.  The grant application evidences that the former Town Manager lied about the town possessing the requisite right-of-ways on the grant application. Under AA provisions #5 and #6 recited below, the town is prohibited from improving (whether independently or in concert with any other government, special district or private person or entity) Morning Star Road such that Morning Star Road is paved or includes more than two lanes and is prohibited from obtaining or retaining Area 96-1 rights-of-ways under the AA.  It has also been discovered that the town has retained some right-of-ways they were required to relinquish under the AA.

With respect to claim “Proposed settlement agreement in the Town v. Freeman lawsuit.”  In 2014 the mayor and members of town council attempted to circumvent the AA by approving an out-of-court settlement that would have authorized vehicular crossing of the creek to favor Cahava Springs developer Mark Stapp.  Approval by the mayor and town council would have constituted a violation of the entire AA. 

With respect to claim “Intent to violate.”  At privately-held campaign forums during the recent town council recall election, candidates initiating the recall election were reported to be promising west side residents that, if they were elected, there would be an east-west creek crossing.  This promise was exposed after the election.  Any planning of a creek crossing violates the entire AA.

Cited AA provisions:
#1. The “desire to preserve the existing desert and rural character of Annexation Area 96-1 and the Property” is the agreed purpose and intent between the town and the Area 96-1 property owners for entering into the AA. [source: AA, “Recitals” § I, pg. 3]. 
#2.  The creek known as Cave Creek.  Preservation of the creek was a priority to Area 96-1 property owners.  In support of this priority, the town declared “ . . . that the watercourse known as Cave Creek which flows through Annexation Area 96-1 provides a significant natural resource that should be preserved and protected.”  [source: AA, “Recitals” § I, pg. 3]. 
#3. Preservation of Creek:   In at least two separate AA provisions, the town and Area 96-1 property owners agreed to the process to preserve and protect the creek from any vehicular crossing.  One provision states, in part:  “The Town further believes that the construction of bridges or other improved road crossings of Cave Creek between Cahava Ranch Road on the south and the southern boundary of the Spur Cross Ranch property on the north as part of the extension of a public road system providing continuous, uninterrupted vehicular access to areas west of Cave Creek would for the term of this Agreement be inconsistent with these natural resource protection goals and the desert/rural character of Annexation Area 96-1.” [source: AA, “Recitals” § I, pg. 3]. 
#4.  The second provision for Creek preservation states, in part:  “During the term of the Agreement, the Town shall not, either independently or in concert with any other government, special district or private person or entity, plan, promote, design or construct any new bridge, improved dip-crossing or similar improvement, or accept the dedication of such improvement, which accomplishes a crossing of Cave Creek so as to link or extend any existing public road providing continuous, uninterrupted vehicular access over or through Cave Creek on that reach of Cave Creek in the Annexation Area 96-1 between Cahava Ranch Road and the south boundary of the property known as Spur Cross Ranch.”  [source:  AA, “Agreement” ¶ 2.2.1, pg. 4].
#5.  Road Maintenance:  The town is required to maintain Morning Star Road but is prohibited from paving or widening Morning Star Road.  The AA states: “Within [sixty (60) days] following the Effective Date, the Town shall initiate grading and application of dust retardant to Morning Star Road, at the same frequency such maintenance is provided throughout the Town; provided, however, that during the term of this Agreement, the Town shall not improve (whether independently or in concert with any other government, special district or private person or entity) Morning Star Road such that Morning Star Road is paved or includes more than two lanes.” [source:  AA, “Agreement” ¶ 2.3.1, pg. 5]. 
#6. Morning Star Road:  The AA states: “During the term of this Agreement, the Town shall not plan, design, acquire right-of way (by dedication, purchase or condemnation) or improve, whether independently or in concert with any other government, special district or private person or entity, a public roadway providing continuous, uninterrupted vehicular access on the alignment of Morning Star Road west of Old Stage Road.  [source: AA, “Agreement” ¶ 2.3.6 at pg. 5].
#7.  Honda Bow Road:  The AA provision is similar and states, in part: “During the term of this Agreement, the Town shall not plan, design, acquire right-of-way (by dedication, purchase or condemnation), or improve, whether independently or in concert with any other government, special district or private person or entity, a public roadway providing continuous, uninterrupted vehicular access on the alignment of Honda Bow Road between Spur Cross Road on the east and Cave Creek on the west.”  {source: AA, “Agreement” ¶ 2.2, pg. 4].
#8.  Spur Cross Road in Area 96-1:  The AA states: “Spur Cross Road in Annexation Area 96-1 is at some locations improved as a two-lane, unpaved public roadway.  The town is currently negotiating with the County to cause the County paving of Spur Cross Road between the existing Town limits and the alignment of Honda Bow Road, notwithstanding the Annexation.  If these negotiations fail, the Town agrees that it will include the paving of Spur Cross Road between the Town limits existing prior to the Annexation and the alignment of Honda Bow Road in the next annual update of the Town’s five-year capital improvement plan.  The planned improvement shall provide for a two-lane, paved roadway with appropriate shoulders.  During the terms of this Agreement, the Town shall not improve (whether independently or in concert with any other government, special district or private person or entity) Spur Cross Road such that Spur Cross Road includes more than two lanes.”  [source: AA, “Agreement”, ¶2.4.1, pg. 6].

Janelle Smith-Haff
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The agenda for the March 2, 2015 town council meeting has been published.  While both the 25-year and the 10-year extension documents are on the agenda and notarized signatures are not required, a 10-year extension of the 1997 Area 96-1 Annexation/Development Agreement (“AA”) is the only extension on the agenda with an accompanying formal motion and document attached for the mayor’s signature.  Documents requiring the mayor’s signature are normally documents which are prepared by the town attorney as they are legally required to be included as an exhibit with the agenda item. 

There was no document prepared by the town attorney that was attached as an exhibit for the mayor’s signature for a 25-year extension. 

Are you OK with that?

This article is not about the extension, it’s about how politics continues to be played in this town despite the removal of the old regime.

If it’s taken the threat of a recall election to make council members live up to their campaign promises and protect the AA, I’m OK with that.  But I am not blinded to the fact that there would be no extension of the AA for the town council to consider on March 2, 2015 had it not been for the presence of an Area 96-1 resident who prevented town council members from breaching the AA at the February 3, 2014 town council meeting.

I know this because I am that resident.

It goes without saying that Area 96-1 residents are in favor of an extension, but who determined that a 10-year extension was better than a 25-year extension?  Obviously, a term of 25-years is allowed as 25-year’s is the original term of the AA.  Under the 10-year extension document circulated by Bruce Arlen, however, Area 96-1 residents forfeited 15 years of additional protection under the AA. 

Are you OK with that?

One reason stated by Bruce Arlen for circulating a 10-year extension document was because a 10-year extension was “more palatable” to council members. How could Bruce know this unless he had been told this by one or more members of town council?

Are you OK with that?

The 10-years is “more palatable” assertion by Bruce Arlen indicates that Bruce Arlen, one or more council members, and the attorney who prepared the 10-year extension document may have conspired together to limit the number of years for the AA’s extension. 

Are you OK with that?

I specifically asked Councilman Spitzer if he was the member of town council Bruce Arlen was referring to.  In a January 28, 2015 email to me Councilman Spitzer wrote: “If he [Bruce] has talked to others on council, he hasn't told me what they said on my explicit statement to him. I have no wish to know what the other council members think on this matter.” 

If not Councilman Spitzer, then which council member? 

Are you OK with that?

Another reason stated by Bruce Arlen for circulating a 10-year extension document was because it had been prepared by an attorney who is connected to and understands municipal language and therefore the document has all the correct language and formatting to be an acceptable agenda document. However, the name of the attorney who prepared the document does not appear anywhere on the 10-year extension document.

Are you OK with that?

The attorney who prepared the paperwork chose not to attach his name to the document he prepared. But by providing legal advice and preparing the 10-year document, the attorney who prepared the 10-year document is involved in setting policy in this town. And, because his name is not known, the extent of influence he or other members of his family have on members of town council is also not known. 

Are you OK with that?

Yet another reason Bruce Arlen stated for circulating a 10-year extension document was because the signatures need to be notarized, a claim not supported by the town attorney’s legal opinion.  If notarized signatures were the only disputed issue, then why wasn’t the 10-year document prepared as a 25-year extension document?

Are you OK with that?

Numbers 7, 8, 9 and 12 in the article titled “No Extension of the AA?” cites reasons why notarized signatures are not required on extensions to existing development agreements.  Go to  www.cavecreektownhallblog.com “Area 96-1 Annexation Agmt.” to read the article.

Without knowing the name of the attorney who prepared the 10-year extension document we cannot know the legal basis for why he claimed an extension to an existing development agreement requires notarized signatures. 

Are you OK with that?

The named and unnamed persons involved have an opportunity to step forward, state the facts of their involvement --- including the name of the persons involved in the decision requiring Area 96-1 residents to forfeit 15 years of protection under the AA and why such a decision was made.

If they don’t do that, are you OK with that?

Over the 2014 Christmas/New Year holiday season, while collecting signatures for an extension of the Area 96-1 Annexation/Development Agreement (AA), I made a promise to Area 96-1 residents that I would inform them of which town council meeting in February the extension would be considered by the entire town council.

As we all know, the extension issue did not appear on the February 2, 2015 town council meeting agenda.  The agenda for the February 17, 2015 town council meeting has been published and an extension of the AA was not placed on that town council meeting agenda either.  Will the extension of the AA be placed on the March 2, 2015 town council agenda?  That is an unknown. 

Councilman Spitzer is the council member who approached me after the town council meeting on December 15, 2014 advising that residents of Area 96-1 should pursue an extension of the AA before the recall election.  The town council meeting on March 2nd will be the last meeting of this sitting council before the recall election votes are tallied.

As of this writing, Area 96-1 residents have not been given the courtesy of an explanation for why the extension of the AA was not placed on the agenda for either of the town council meetings in February. Area 96-1 residents are left  without answers to questions.

In an email to me dated January 28, 2015, Councilman Spitzer wrote “If I lived in the area, I would want a 25-year extension.  I had no hand in drawing up or setting any conditions of anything either you or he [Bruce Arlen] have done, and wanted none. This was to be done by you, for and on your behalf, and I would bring whatever ANYONE handed to me to the town attorney, without changing, modifying, approving, or otherwise doing anything to, whether that is one packet, two, or more.” If it was the decision of the town attorney not to place an extension of the AA on a town council meeting agenda, is the town attorney’s decision a written decision?  Is this decision a matter of public record?   If the decision not to place an extension of the AA on a town council meeting agenda was not premised upon any decision by the town attorney, then why wasn’t the packet containing 32 signed and dated informal petitions for an extension of the AA placed on a February town council meeting agenda?  The packet was submitted to Councilman Spitzer and the town attorney on January 12, 2015. 

Perhaps a reason that the extension was not placed on a town council agenda is a belief that this council has no authority to bind future town council actions?  That belief would be misplaced as a development agreement is one of the lawfully recognized methods for one sitting council to bind the actions of future councils.  To wit, on February 2, 2015 our present sitting town council entered into a 10-year development agreement with subdivision developer Lou Spelts.  Under this 10-year development agreement the town will be paying tens of thousands of dollars in infrastructure costs.  The development agreement known as the “AA” costs the town nothing, yet it has an immense and positive impact, both visually and financially, on the entire town.

Whether or not the present or any future town council will ever agree to an extension, the importance of the AA for the protection of the creek known as Cave Creek and the town’s desert rural character cannot be overstated.  For those unfamiliar with the benefits of the AA, click on the “Area 96-1 Annexation Agmt.” topic at www.cavecreekcreektownhallblog.com to read about how the AA benefits all Creekers.  The following information is being disseminated to all Creekers, not just Area 96-1 residents, because of the beneficial impact that the AA has on every Creeker’s way of life.

1.      December 15, 2014: Councilman Charlie Spitzer approached me about bringing an extension of the AA to the present council before the recall election.  During this conversation Councilman Spitzer stated he had made a similar suggestion to Area 96-1 resident Bruce Arlen “almost a year ago” but that Bruce Arlen had yet to act on the suggestion. 

2.      January 12, 2015:  32 signed and dated informal petitions were submitted to Councilman Spitzer and the town attorney seeking an extension of the AA to a date no sooner than the year 2040.  Since this submission, the number of signed and dated informal petitions has increased to 36.

3.      Two weeks after the submission of the 32 signed and dated informal petitions to Councilman Spitzer and the town attorney, I received an email from Councilman Spitzer saying: “I've heard from Bruce just last night, who has put together something with a lawyer and getting notarized letters from everyone also. I'm not sure which packet is going to go over with the town attorney, but it would have been nice if both of you could have cooperated on this matter so there's no competition of differing info.” 

4.      While collecting signatures for his paperwork Bruce Arlen tells residents that a 10-year extension of the AA will be “more palatable” to the town council than a 25-year extension.  How could Bruce Arlen know that a 10-year extension would be “more palatable” to members of the town council unless this was told to him by another town council member?  Councilman Spitzer denies ever having said this to Bruce Arlen.   

5.      While collecting signatures Bruce Arlen tells residents that his 10-year extension paperwork was prepared by an attorney.  However, the 10-year extension paperwork circulated by Bruce Arlen does not contain the name of the attorney who Bruce is claiming prepared the paperwork.  Without the attorney’s name on the 10-year extension paperwork, and absent Bruce being a member in good standing of the Arizona State Bar Association, his claim constitutes an unauthorized practice of law.  The Supreme Court of AZ has specific rules governing the practice of law.  If the claim of Bruce Arlen is true, why did the attorney who prepared the paperwork choose not to attach his name to the document he prepared?

6.      While collecting signatures Bruce Arlen tells residents that, based on the legal advice he obtained from the attorney who prepared his document (but whose name does not appear on the document), their signature on any extension paperwork must be notarized. The AA has existed since 1997.  All that is being sought is an extension of the expiration date on the existing AA.  A new development agreement is not being initiated.

7.      There are two separate statutes under Arizona law, identical in language, which allow amendments to development agreements.  To wit, A.R.S. 11.1101(D): “D. A development agreement may be amended, or cancelled in whole or in part, by mutual consent of the parties to the development agreement or by their successors in interest or assigns.” And  A.R.S. 9-500.05(C): “C. A development agreement may be amended, or cancelled in whole or in part, by mutual consent of the parties to the development agreement or by their successors in interest or assigns.”

8.      Under A.R.S. 33.401(B) notarized signatures are required when filing any document in the state or county Recorder’s Office if that document conveys or transfers real property.   The extension of the expiration date of the AA does not constitute a conveyance or transfer of real property, making a notarized signature unnecessary.

9.      Contract law has no notary requirement.  However, the percentage of signatures required under contract law conflicts with the percentage of signatures that was required for the 1997 annexation/development agreement, making reliance on contract law a higher burden for Area 96-1 property owners than what is statutorily required in development agreements. 

10.  An informal petition requires only a signature and date.  On January 12, 2015, 32 signed and dated, informal petitions were submitted to Councilman Charlie Spitzer and the town attorney.  Since that date the number of signed and dated informal petitions have increased to 36.

11.  It is not known how many notarized signatures Bruce Arlen obtained or whether he submitted his 10-year extension paperwork to Councilman Spitzer or any other member on town council.  If he did, did that council member forward the paperwork to the town attorney?

12.  Because the AA is subject to expiration, it therefore is temporary, and as a statement of general council policy, the town council can adopt an extension of the AA via a resolution process.  According to the November 2011 edition of “League of Arizona Cities and Towns” (the manual that provides technical and legal assistance to cities and towns in Arizona) “Resolutions are generally more temporary and are used for council action on administrative or executive matters or for statements of general council policy. (Page 11).  Upon approval of the extension by the town council, notice of the AA’s extension would be published in the same manner required of all publications of a “public character.” The manual defines notices of “public character/public purpose” to include the “promotion of public health, safety, morals, general welfare, security, prosperity and contentment.”  These definitions are the embodiment of the AA.

The 36 informal petitions which were obtained in support of an extension of the AA to a year no sooner than 2040 represent more than 50% of the property owners in Area 96-1, yet this consensus among Area 96-1 residents doesn’t appear to satisfy Councilman Spitzer.  Two weeks after the submission to him and the town attorney of the packet containing 32 informal petitions, in an email to me he stated it was his “belief and opinion, that if your area's residents don't work together to bring something to fruition soon, that it won't be extended and the agreement will expire.”  What exactly is meant by the statement in this email?  If the signatures of more than 50% of the property owners in Area 96-1 in support of an extension of the AA to a year no sooner than 2040 is not representative of area residents working together and bringing something to fruition, what is the percentage of property owners required under the law to reach the magic number needed to bring this extension matter to fruition? 

When an extension is supported by more than 50% of the property owners yet it can’t even get a member of town council to place the matter on a town council meeting agenda, how confident are Area 96-1 residents expected to feel about their town council members defending the AA? 

If you’re an Area 96-1 resident and would like to inform and be informed about the AA contact me at the email address listed below.  Your email address will be added to the group distribution list.  Except for the purpose stated, it will not be sold or shared.  All Creekers, and especially Area 96-1 residents, must be vigilant in their demand for compliance of the AA by every sitting council.  The pending judicial decision in the Town of Cave Creek v. Freeman et al., lawsuit must be reviewed to ensure there was no breach of the AA by the court in its decision.  One of the larger parcels in Area 96-1 recently incurred a change in ownership.  If the property was purchased as an investment rather than a residence, at any time, the new owner could make application to divide the property under the town’s Subdivision Ordinance.  If this should happen, would the paving of Morning Star Road again become an issue?  Would a gated community be allowed?  (SIDEBAR: This town council still has not fixed its council-created loophole in the Subdivision Ordinance which now allows gated communities in Cave Creek.) 

Consider this your notice of the need to view the town’s website on February 26, 2015 to see if the AA extension was placed on the March 2, 2015 town council meeting agenda.  If neither the 25—year or 10-year extension appears on the March 2nd town council meeting agenda, it begs the question: was there was ever an intention to place any extension of the AA on a town council meeting agenda?

These events have not come as a surprise to some, but they are a disappointment to all.

Janelle Smith-Haff

Recent town council meetings have involved discussions, sometimes heated discussions, about a document known as the “Annexation Agreement.”  Its formal title is “Development/Annexation Agreement.”  This summary reflects the Annexation Agreement’s (“AA”) history, the parties to the AA, who benefits under the terms of the AA, and the importance of the AA to maintaining the entire town’s desert rural character and unique tourist appeal.            

During the early stage of negotiations for the town’s purchase of the Spur Cross Conservation Area (SCCA) the then Mayor Tom Augherton and council were also in annexation negotiations with property owners living in Area 96-1, a county island area of properties generally located east of the creek and along the west side of Spur Cross Road, and stretching from the north boundary of Cahava Ranch Road to the southern boundary of the proposed SCCA.  As reflected in 1997 Town Council Resolution No. 97-11, the negotiations between the town and Area 96-1 residents culminated in a formal contract referred to as the “Development/Annexation Agreement.”  The agreed term of the contract was set at twenty-five (25) years, making it due to expire in the year 2022. A copy of the AA is available through a FOIA request at Town Hall.

Unlike a town council-enacted ordinance or policy which is subject to at-will modifications, revocation, or full repeal at any time by any sitting council, the AA is a formal contract.  Any modification, revocation, or full or partial repeal of a formal contract must be by mutual agreement between the parties, or ordered by a court of competent jurisdiction. 

Because it is a formal contract, some type of “consideration” between the parties must be reflected in the AA’s language.  In most contracts “consideration” involves an exchange of money.  Under the AA, however, no money was exchanged.  Instead, the town received the county island identified as Area 96-1 into its boundaries and the residents received the town’s contractual promise to maintain the county island’s existing desert rural character and low-density zoning during the term of the AA, or twenty-five years.

The “intent” of parties must also be reflected in a contract’s language.  The intent of the town and Area 96-1 residents is set forth in the “Recitals” section of the AA and reflects both parties’ reason (intent) to enter into the contract as their mutual “desire to preserve the existing desert and rural character of Annexation Area 96-1 and the Property.”   

In support of this mutual “desire to preserve the existing desert and rural character of Annexation Area 96-1” the parties agreed that the “watercourse known as Cave Creek which flows through Annexation Area 96-1 provides a significant natural resource that should be preserved and protected.”  One of the processes agreed to and by which the goal for preservation and protection of the creek was to be accomplished, is contained in Section “L” of the AA.  That section states, in part:  “The Town further believes that the construction of bridges or other improved road crossings of Cave Creek between Cahava Ranch Road on the south and the southern boundary of the Spur Cross Ranch property on the north as part of the extension of a public road system providing continuous, uninterrupted vehicular access to areas west of Cave Creek would for the term of the Agreement be inconsistent with these natural resource protection goals and the desert/rural character of Annexation Area 96-1.” 

Another provision affirming the town’s intent to ensure the preservation and protection of the creek is recited in Section 2.2.1 of the AA.  This section states, in part:  “During the term of the Agreement, the Town shall not, either independently or in concert with any other government, special district or private person or entity, plan, promote, design or construct any new bridge, improved dip-crossing or similar improvement, or accept the dedication of such improvement, which accomplishes a crossing of Cave Creek so as to link or extend any existing public road providing continuous, uninterrupted vehicular access over or through Cave Creek on that reach of Cave Creek in the Annexation Area 96-1 between Cahava Ranch Road and the south boundary of the property known as Spur Cross Ranch.”   

The desert rural protections included in the AA benefit the whole town and all Creekers, which is the reason why this intent by the parties to “preserve the existing desert and rural character of Annexation Area 96-1” was written into the AA. 

Additional desert rural protections in the AA to “preserve the existing desert and rural character of Annexation Area 96-1” for the benefit of the town and all Creekers holds that:

1.         Spur Cross Road shall remain a two-lane road during the term of the AA.  (Section 2.4.1.)

2.         Morning Star Road shall remain a two-lane road during the term of the AA.  (Section 2.3.1.)

3.         Morning Star Road shall not be extended west of Old Stage Road during the term of the AA. (Section 2.3.6.)  That section states: “The town shall not plan, design, acquire right-of-way (by dedication, purchase or condemnation) or improve, whether independently or in concert with any other government, special district or private person or entity, a public roadway providing continuous, uninterrupted vehicular access on the alignment of Morning Star Road west of Old Stage Road.”

4.         Morning Star Road is not to be included as a fully improved thoroughfare under the town’s General Plan during the term of the AA.  (Section 2.3.5.) 

5.         Honda Bow Road between Spur Cross Road on the east and Cave Creek on the west shall not become a continuous, uninterrupted vehicular access road during the term of the AA.  (Section 2.2.2)

Continued preservation of the existing desert and rural character of Area 96-1 is imperative to maintaining and preserving the entire town’s desert rural character and unique tourist appeal.

Spur Cross Road is the only road leading into SCCA and, is therefore, the visual gateway for visitors as they approach their intended destination, SCCA.  Because visitors to the SCCA provide the town with much needed tourism revenue, any development/improvement issues concerning Spur Cross Road must be viewed in the context of how the development/improvement will affect the visual gateway leading into SCCA.

Imagine what this visual gateway to the SCCA would look like to tourists should Spur Cross Road be developed/improved and become a four-lane road … with stop lights!  You don’t have to imagine.  The widening of Spur Cross Road to four lanes has been in the development stage since before the ink was dry on the AA.  Funding aside, the AA is all that’s preventing this development/improvement from happening. 

Not only do the desert preservation measures in the AA prevent the widening of Spur Cross Road, the desert preservation measures in the AA are also preventing the widening of Honda Bow Road and Morning Star Roads to four lanes, and the building of a bridge over the creek to create an east-west commercial corridor connecting 26th Street to Morning Star Road and Spur Cross Road. 

The town’s purpose for an east-west connection over the creek is not only to provide quicker access into town for residents living west of the creek, it is to provide quicker access into town for all residential and commercial traffic west of the creek that seeks to circumvent traveling on Carefree Highway. 

To date, residential and commercial development west of the creek has been limited by virtue of the fact that there is no east-west bridge connection over the creek.  Any breach of the AA would allow an east-west crossing over the creek between 26th Street and Morning Star and Spur Cross Roads.  This breach will increase traffic on both sides of the creek.  The constant vehicle and delivery truck noise, increased air pollution, and the loss of dark skies that will occur when an east-west connection across the creek is built will result in the irreversible destruction of the town’s desert rural character on both sides of the creek. 

Because of the AA’s importance in preserving the desert rural character enjoyed by residents on both sides of the creek, and as the visual gateway experienced by tourists traveling to SCCA, a debate on whether to extend the AA, breach the AA, or let it expire in the year 2022 is certain to become the political focal point in coming mayoral and town council election cycles.

During one particularly contentious town council meeting involving the AA early in 2014, and where the threat of de-annexation by Area 96-1 residents was voiced if the council were to breach the AA, the town council voted 7-0 not to breach the AA.  This 7-0 vote, however, is not reflective of the present town council’s recognition of the importance of the AA to maintaining Cave Creek’s desert rural character.  The 7-0 vote is merely the present council’s recognition that their breach of the AA would subject the town to litigation with the potential that Area 96-1 residents could decide to de-annex from the town if a court of competent jurisdiction were to rule that the town breached the provisions in the AA. 

When the AA expires in 2022, there will be nothing to prevent any sitting town council members from proceeding with the building of a bridge over the creek and building a four-lane, east-west commercial corridor connection between 26th Street and Morning Star and Spur Cross Roads.



DISCUSSION RE: ANNEXATION AGREEMENT

The decisions to annex Area 96-1 and purchase SCCA were decisions which benefited the whole town, not just certain people in certain areas of the town.  The decision about whether to let the AA expire under its own terms, extend the AA beyond the year 2022, or allow the town to breach the AA must be decided by the whole town, not just the town council.

What would happen if a court of competent jurisdiction ruled that the town breached its contractual obligation to Area 96-1 residents under the AA? 

A breach of the AA could happen in many forms.  It can be a direct breach or an attempt at an indirect breach.  For instance, an indirect breach could occur should any sitting town council (before expiration in 2022) breach the AA by cloaking the breach in a decision to build an east-west corridor over the creek claiming it was a necessary health and safety issue for the town.  A direct breach could occur should any sitting town council vote to amend, for example, the Cahava Springs developer’s application and allow the 230+ home development access over the creek and onto Morning Star and Spur Cross Roads rather than only onto 26th Street as originally approved.

Though this blog discussion is not limited to any specific breach scenario, assume that the town council breached the AA and allowed vehicular traffic from the Cahava Springs development over the creek and onto Morning Star and Spur Cross Roads. 

SIDEBAR:  This is not a far-fetched scenario.  One of the provisions in the 2/14 Freeman settlement proposal would have breached the AA to accommodate the Cahava Springs developer with an east-west creek crossing.  After the council grudgingly rejected the Freeman settlement proposal because it violated the AA, Councilman Durkin openly expressed his deep concern that the residents of Area 96-1 were denying the developer his private property rights under the U.S. Constitution by invoking the provisions and protections in the AA.  Councilman Durkin’s expression of concern about the developer’s constitutional property rights vs. the property rights of Creekers was quite startling given that, prior to his election to council, he was active in denying the property rights of the developer of the boutique resort known as Enchanted Canyon.   

A decision by the town council to re-route the traffic from the Cahava Springs development over the creek and onto Morning Star and Spur Cross Roads would put the town in a precarious litigation position because the town is not only required to perform its contractual obligation prohibiting creek crossings as recited in the AA, it is also required to defend the AA against any litigation resulting from a breach. 

In other words, under this litigation scenario, the town (council) would be in the position of defending itself against the breach it created.  And, Creekers, of course, would be paying the legal bills. 

Under any scenario, if a court of competent jurisdiction were to rule that the town council violated its contractual obligation to Area 96-1 residents, one of the remedies available to Area 96-1 residents would be to de-annex Area 96-1 from the town, i.e., remove the Area 96-1 annexed land from within the official boundary of Cave Creek.  (Area 96-1 generally comprises the stretch of properties east of the creek and along the west side of Spur Cross Road from the north boundary of Cahava Ranch Road to the southern boundary of SCCA.) 

What would happen if a court of competent jurisdiction ruled that the re-routing of vehicular traffic over the creek and onto Morning Star and Spur Cross Roads does not constitute a breach of the town’s contractual obligation under the AA?

Except as an indirect breach using a claim of “health and safety,” such a scenario is hard to imagine because of the town’s recognition of and agreement to adhere to the AA’s provisions and prohibitions when initially signed in 1997 and again when approving the Cahava Springs developer’s application. 

In or around 2005, the then-sitting town council approved the Cahava Springs developer’s application to build 230+ homes on the hill on the west side of the creek.  Because of the provisions in the AA prohibiting crossing of the creek and widening of Morning Star and Spur Cross Roads, the town council’s 2005 approval of the Cahava Springs development was conditioned on the developer’s agreement to route development traffic onto 26th Street and down to Carefree Highway.  (26th Street becomes 24th Street and eventually connects with Carefree Highway to the south.)  For a number of undisclosed reasons, the developer has only recently undertaken efforts to begin construction of these 230+ homes. 

If a court of competent jurisdiction were to rule that the town council's re-routing of vehicular traffic over the creek and onto Morning Star and Spur Cross Roads was a health and safety issue and therefore did not constitute a breach by the town of its contractual obligations under the AA, that ruling would be tantamount to an immediate and complete dissolution of the entire AA. 

Would a breach or dissolution of the AA and re-routing of vehicular traffic over the creek and onto Morning Star and Spur Cross Roads preserve and protect the desert rural character of the neighborhoods on the west side of the creek?

Absolutely not.  In fact, the AA is the only thing preventing the residents living west of the creek from experiencing an increase in residential and commercial vehicular traffic on their streets.

Evidence gathered by Area 96-1 residents establish that, since the signing of the AA in 1997, the town has been in discussions with various developers and other entities to secure right-of-ways and other necessary titles for the town’s eventual development of an east-west, four-lane thoroughfare and bridge crossing between 26th Street and Morning Star and Spur Cross Roads.  The constant monitoring of town council meeting agenda items has, thus far, prevented approval of construction of an east-west thoroughfare over the creek.  However, for the town to even be involved in any type of development discussions during the term of the AA is a violation of the AA.

The re-routing of Cahava Springs traffic over the creek and onto Morning Star and Spur Cross roads will increase traffic on both sides of the creek and irreparably destroy the desert rural character in the neighborhoods on both sides of the street. 

Clearly, to keep vehicular traffic at a minimum in all our neighborhoods, and to preserve our town’s desert rural character, the efforts by residents on both sides of the creek should be the pursuit of a united vision of what’s in the best interest of the whole town, not just certain people in certain areas of the town.  The whole town loses when Creekers fight against each other instead of uniting to fight for the good of the whole town. 

Isn’t it in the best interest of the whole town if the AA is used to keep Cave Creek unique and attractive to tourists and for future generations of Creekers?

If the AA is allowed to expire in 2022, there will be nothing to prevent any sitting town council from approving the widening of Morning Star and Spur Cross Roads to four lanes and the building of a bridge over the creek at the intersection of Morning Star and Old Stage Roads to secure an east-west residential and commercial corridor connection between 26th Street and Morning Star/Old Stage and Spur Cross Roads. 

Should the AA be allowed to expire under its own terms?

Should the AA be extended beyond the year 2022?  If so, for how many years?

Should the town council be allowed to breach the AA?

Does the development of an east-west, four lane thoroughfare comport with the open space vision held by Creekers? 

Should traffic from the Cahava Springs development and other points west of the creek be allowed to cross over the creek and onto Morning Star and Spur Cross Roads?

Do you believe that the desert rural character which exists throughout Cave Creek can be preserved if a bridge is built over the creek and Morning Star and Spur Cross Roads are widened to four lanes? 

Do you think that an east-west connection, the building of a bridge over the creek, and the widening of Morning Star and Spur Cross Roads and 26th Street to four lanes each is in the best interest of the whole town? 


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