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
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
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