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
[email protected]
Please post your comments, opinions, and suggestions. Just remember, be nice or be deleted.
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
[email protected]
Please post your comments, opinions, and suggestions. Just remember, be nice or be deleted.
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