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.
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.
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