The following was read into the record at the 6/15/15 town council meeting:
The articles I have published on my blog site serve a two-fold purpose.  One is to inform the citizens of issues affecting our town, and the other is to make it impossible for any member of this council to feign ignorance over the disputed issues involving Cahava Springs Revitalization District.

When this council rescinded the SAP Resolution at the last council meeting, it proved that a Resolution passed by one sitting council can be rescinded by another sitting council. The Specific Area Plan no longer exists because this council rescinded the SAP Resolution passed by another sitting council. 

Just like the SAP, the Cahava Springs Revitalization District approval is via the Resolution process.  The citizens of Cave Creek have four options if/when that Resolution is approved: One, we can do nothing.  Two, we can file a lawsuit.  Three, we can file a referendum.  Or four, we can elect a quorum to the council in 2016 which consists of candidates who campaign on the promise to rescind this council’s Resolution approving Cahava Springs Revitalization District. When the Resolution is rescinded by any future sitting council the Cahava Springs Revitalization District can no longer exist. 

The reason given by this council for rescinding the SAP Resolution was that our town didn’t need to invite more litigation.  Can this council be certain that its approval of the Revitalization District Resolution won’t invite future litigation after it is rescinded? 

This council has felt it can disregard the numerous questions surrounding this matter which have been asked by Cave Creek citizens, but are you just as sure you can disregard those questions when they are being asked by a judge in a court of competent jurisdiction?

Janelle Smith-Haff

The mayor, town council members, Mark Stapp and his entourage of lawyers from the law firm  Gammage & Burnham continue to assure the citizens of Cave Creek that there is a Development Agreement in place and that this Development Agreement will be the document relied on by town staff and council members to enforce zoning and other regulations inside Cahava Springs Revitalization District[i] if/when the petition for a Revitalization District is approved.[ii]

The Development Agreement is formally known as the “April 25, 2005 Pre-Annexation Development Agreement between the Town of Cave Creek and Apache Springs Land, L.L.C.” (“Development Agreement”).  On behalf of the town, Mayor Francia signed the Development Agreement. The town’s attorney at the time was the law firm of Mariscal Weeks, et al.  Represented by attorney Stephen W. Anderson at Gammage & Burnham PLC, Mark Stapp signed the Development Agreement as a Managing Member for Apache Springs Land, L.L.C..  The town and Apache Springs Land, L.L.C. are the only named parties to the Development Agreement. Apache Springs Land, L.L.C. is identified as “Owner” in the Development Agreement.

Cave Creek’s on-line paper, Desert Foothills Chronicle, recently revealed the existence of a $14,000,000.00 Promissory Note against the proposed Cahava Springs Revitalization District property.[iii]  Further documentation reveals that Cahava Springs Corp. assumed an Apache Springs Land, L.L.C. Promissory Note in the amount of $17,820,000.00 and that this Promissory Note was secured by a Deed of Trust between Apache Springs Land, L.L.C. and Cahava Springs Corp. dated November 18, 2004.[iv]   

QUESTION:  Was the existence and status of this $17,820,000.00 November 18, 2004 Promissory Note disclosed to the town by Mark Stapp or any “Owner” during negotiations of the April 25, 2005 Development Agreement?

Under section 5.6 of the Development Agreement, Apache Springs Land, L.L.C. is required to obtain written consent from the town manager before assigning all or any portion of its respective rights and obligations to another party.[v]  Under a Deed dated August 15, 2008, Apache Springs Land, L.L.C., assigned all of its right, title and interest in lots 53 through 230 and inclusive of tracts I, L, J and K to Cahava Springs Corp., a Minnesota corporation.[vi]

QUESTION:  Was written consent given by the then town manager, Usama Abujbarah, before Apache Springs Land, L.L.C. assigned its respective rights and obligations to Cahava Springs Corp. under the August 15, 2008 Deed of Trust?  If so, was the amendment recorded in the Official Records of Maricopa County as required under section 5.16 of the Development Agreement?[vii] Under Sec. 5.16, any amendment is required to be in writing and recorded in the Official Records of Maricopa County within ten (10) days of signing the amendment.

If written consent was given by the then town manager Usama Abujbarah, was Apache Springs Land, L.L.C. relieved of liability in accordance with Section 5.6 the Development Agreement? Section 5.6 of the Development Agreement states that: “In the event of a complete assignment of all of its rights and obligations, the assigning Party shall be relieved of any further liability under this Agreement.” If so, who is the new “Owner” under the Development Agreement and in what amendment to the Development Agreement is the name of the new “Owner” reflected?

Cahava Springs Corp. is now known as CS Investments, Inc., a Minnesota corporation.  Under a Special Warranty Deed dated May 27, 2014, CS Investments, Inc. transferred all of its interest in lots 53 through 230 and inclusive of tracts I, L, J and K to Cahava Springs Development Corporation, a Nevada corporation.[viii]

QUESTION:  Was written consent for this May 27, 2014 amendment given by the present town manager Peter Jankowski?  Was the written consent recorded in the Official Records of Maricopa County within ten (10) days of signing the amendment?

Six months later, on November 25, 2014, under an irrevocable trust, Cahava Springs Development Corporation, transferred all rights, title, etc., in lots 53 through 230 and inclusive of tracts I, L, J and K back to CS Investments, Inc.(formerly Cahava Springs Corp.). 

QUESTION:  Was written consent for this November 25, 2014 amendment given by town manager Peter Jankowski?  Was the written consent recorded in the Official Records of Maricopa County within ten (10) days of signing the amendment?

With respect to the Cahava Springs Revitalization District petition: 

The three corporate petitioners for the Cahava Springs Revitalization District are Cahava Springs Phase 1, Inc., Cahava Springs Development Corporation, and Morningstar Road Properties, Inc.. The Deed of Trust dated November 25, 2014, reflects that Cahava Springs Development Corporation transferred all rights, title, etc., in lots 53 through 230 and inclusive of tracts I, L, J and K (the Cahava Springs property) to CS Investments, Inc.  This November 25, 2014 transfer of rights, title, etc., removed the property interest and ownership rights from Cahava Springs Development Corporation and placed them into the corporate ownership of CS Investments, Inc..

As of November 25, 2014, Cahava Springs Development Corporation, one of the three petitioners for the Revitalization District, has had no property interest and ownership rights to petition for a Revitalization District.  Based on this documentation, the petition process must begin again with CS Investments, Inc., named as one of the petitioners for Cahava Springs Revitalization District, not Cahava Springs Development Corporation.

QUESTION: Do our mayor and members of town council have answers to these questions?  If so, why are the answers not being disclosed to the citizens of Cave Creek?  Is this not our town, too? 

Here is the contact information for the mayor and members of town council: [email protected];  SL[email protected]; [email protected];  [email protected];  [email protected]; [email protected]; [email protected]

EndNotes:
[i] Lots 53 through 230 and inclusive of tracts I, L, J and K are the lots involved in the Development Agreement and which also comprise the property in the proposed Cahava Springs Revitalization District.

[ii] Due to Due Process violations concerning the Formation Hearing, the Cahava Springs Revitalization District matter was continued to June 15, 2015.  However, the continuance did not cure the Due Process violations.  The Revitalization District statute requires 20-days’ notice of the Formation Hearing.  The mayor continued the matter for 14 days. 

[iii] There has also been discovered evidence of a 2007 Ten-Million Dollar Promissory Note against the property.

[iv]Per August 15, 2008 Deed:  “1.  The consideration for the execution of this Deed consists of full assumption by Grantee [Cahava Springs Corp.] of all debt under that certain promissory note (the “Promissory Note”) secured by that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by Grantor [Apache Springs Land, L.L.C.] dated November 18, 2004 and recorded on December 2, 2004 at Recorder’s No. 2004-1418956, Records of Maricopa County, Arizona (the “Deed of Trust”). …. Grantee agrees to accept this Deed subject to the lien of the Deed of Trust.

[v] Sec. 5.6 Future Effect.  This Agreement shall run with the land and for the benefit of the Property.  The provisions of this Agreement are binding upon and shall inure to the benefit of the Parties, and all of their successors in interest and assigns; provided, however, that subject to the written consent of the Town manager, said consent not to be unreasonably withheld, the Owner may assign its respective rights and obligations hereunder, in whole or in part, to a person or entity that has acquired title to the Property or a portion thereof, by a written instrument recorded in the Official Records of Maricopa County, Arizona, expressly assigning such rights and obligations.  In the event of a complete assignment of all of its rights and obligations, the assigning Party shall be relieved of any further liability under this Agreement.

[vi] Per August 15, 2008 Deed:  “For good and valuable consideration hereinafter set forth, receipt of which is hereby acknowledged, APACHE SPRINGS LAND, LLC, an Arizona limited liability company (“Grantor”), does hereby grant and convey to CAHAVA SPRINGS CORP., a Minnesota corporation (“Grantee”), that real property located in Maricopa County, Arizona, and described on Exhibit “A” attached hereto, together with all water, air and mineral rights (including any grandfathered groundwater or other groundwater or surface water rights), interests, privileges, and easements appurtenant thereto and any improvements now or hereafter located thereon (the “Property”).  ALSO, PER AUGUST 15, 2008 DEED: “2.  As additional consideration for the execution of this Deed, Grantor agrees to assign by separate instrument(s) (a) all of its right, title and interest in and to (i) all plats, plans and specifications relating to the Property; (ii) all surveys, studies and reports relating to the Property; and (iii) any contracts relating to the Property that Grantee desires to assume, and (b) the nonexclusive right to use the trade name “Cahava Springs” registered under file number 341133 with the Arizona Secretary of State with respect to the Property.” 

[vii] Sec. 5.16 Amendment.  No change or addition is to be made to this Agreement except by a written amendment executed by the parties hereto.  Within 10 days after any amendment to this Agreement, such amendment shall be recorded in the Official Records of Maricopa County.

[viii] CS INVESTMENTS, INC., a Minnesota corporation  (the “Grantor”), which was formerly known as Cahava Springs Corp., a Minnesota corporation, for an in consideration of the sum of Ten and No/100 Dollars ($10.00) cash and other good and valuable considerations to it paid by CAHAVA SPRINGS DEVELOPMENT CORPORATION, a Nevada corporation (the “Grantee”), the receipt and sufficiency of which are hereby acknowledged and confessed, and by these presents does grant, bargain, sell, set over, assign, transfer, deliver and convey, unto Grantee the following described property (collectively, the “Property”).

Janelle Smith-Haff
Thursday, June 11, 2015

Cave Creek’s on-line newspaper, Desert Foothills Chronicle, has revealed the existence of a FOURTEEN MILLION dollar Note against the proposed Cahava Springs Revitalization District property.  Further Due Diligence reveals that, in 2007, the Federal Reserve Bank took action against Marshall BankFirst Corp. and BANKFIRST to “address weakness in asset quality, credit administration, management, and risk management identified by the Federal Reserve Board of Minneapolis.”  The Chairman of the Board and CEO for both of the institutions that the Federal Reserve Board took action against is Dennis M. Mathisen.  Dennis M. Mathisen is also a Director for two of the three corporate entities that are petitioning for approval of the proposed Cahava Springs Revitalization District. 

According to the Minneapolis “Star Tribune” newspaper: “In all, about 30 community banks from Arizona to Wisconsin took a hit on the fiasco.” “One veteran banker close to the situation likened Marshall to a contagious cancer.”  "It might take three years to kill you. It's cancer, but you got the cancer from Marshall Group."   “ … it was lawyer-turned-financier Denny Mathisen who gave rise to BankFirst the loan syndicating machine.”

The creation of a town within our town and approval of Cahava Springs Revitalization District will include turning governance of Cahava Springs Revitalization District over to Dennis Mathisen. 

Approval of the Cahava Spring Revitalization District petition will affect our town -- forever -- in ways that will be, but have not yet all been, disclosed.  As further due diligence is gathered it will be reported. 

Will the mayor and members of town council approve the Cahava Springs Revitalization District at tomorrow night’s town council meeting?  Your attendance at the town council meeting is crucial to help convince our mayor and town council members to vote NO on the Revitalization District matter.  Our thoughts matter and the mayor and town council members need to hear your thoughts and concerns.  It’s not too late to make a difference in the council's decision.

Attend the town council meeting on Monday, June 1, 2015 at 7 pm.

Janelle Smith-Haff

The mayor and town council’s approval of the April 6, 2015 Resolution of intent to form a Revitalization District was so poorly written that it was revoked by Mark Stapp on behalf of the Petitioners.  In its place, an amended Resolution of intent to form a Revitalization District was approved by the mayor and town council on April 20, 2015.[i]  However, it, too, was revoked due to the failure by Mark Stapp to obtain foreign corporation status for his three Nevada-based corporations before petitioning for Revitalization District approval.  A search of the Arizona Corporation Commission website evidences that Mark Stapp is in the process of obtaining foreign corporation status approval from the Arizona Corporation Commission.  But, is foreign corporation status all that Mark Stapp is required to comply with?  No.

#1.  Is foreign corporation status all that is required in the Revitalization District approval process?  No. Foreign corporation status is not sufficient Arizona Corporation Commission authority to transact business in Arizona as a Revitalization District.

 As Nevada-based corporations, the Petitioners must not only file for and be granted foreign corporation status, but because the Petitioners are seeking foreign corporation status for the purpose of forming a Revitalization District in Arizona, the Arizona Corporation Commission’s foreign corporation status approval is constitutionally-restricted to whether or not the laws in the state of Nevada authorize the forming of Revitalization Districts in Nevada by Petitioners.[ii] 

There is another mandatory requirement that has not yet been addressed by Mark Stapp, the mayor, or members of town council.  Under A.R.S. Title 48 “Special Taxing Districts” the county board of supervisors has the absolute decision-making authority in the approval or denial of a Revitalization District petition. This mandatory provision can be read in its entirety below.[iii]  This mandatory provision is not recited in the Revitalization Districts statute,[iv] yet its compliance by any Petitioner(s) seeking to form a Revitalization District is mandatory, not discretionary.

Does this mandatory statutory provision render any Revitalization District decision made by a city or town council null and void?  Is a decision by a city or town council in a Revitalization District matter allowed or even required?  Under this mandatory statutory requirement is a Revitalization District petition considered a “de-annexation” and therefore additionally subject to compliance with A.R.S. Title 9, Ch. 4, Art. 7, 9-471.02?  At what stage of the petition process is the county board of supervisors’ jurisdiction and review of a Revitalization District petition required?  Or, is the intent of this statutory provision only to afford the petitioner with an added benefit of “judicial review” if a Revitalization District petition is denied by a city or town council?  What constitutional or other authority empowers a county board of supervisors to intercede in and/or overturn the legislative decisions made by a city or town council?  In the exercise of Due Process, when, by whom, and by what method are the citizens of a city or town to be notified of the county board of supervisors’ Revitalization District meeting? Where is the meeting to be held?  In Phoenix or in Cave Creek?  Which Revitalization District decision starts the clock ticking under the referendum process: the city or town council’s decision, or the county board of supervisors’ decision?

These along with a host of other legal issues arise due to this mandatory provision, and all of these legal issues require an answer before anyone’s petition for a Revitalization District can be considered or approved by the mayor and members of Cave Creek’s town council, or by the county board of supervisors.

A.R.S. 48-271. Board of supervisors authority to approve or deny formation of special district  A. Notwithstanding any provision of law for the formation of a special taxing district, the county board of supervisors has the absolute authority to deny the formation, other than under chapter 4, 11, 12, 17, 18, 19 or 22 of this title, of a special district in that county, if sufficient grounds exist for such formation denial. Nothing in this subsection shall be deemed to limit in any way judicial review of a decision by the board of supervisors in denying the formation of a special taxing district.

B. For purposes of this section, a special district is any entity proposed to be established on or after January 1, 1989 with substantially the following characteristics:

1. The status of a political subdivision of this state vested with the rights, privileges and immunities of a municipality to the extent consistent with its stated purposes.

2. A limited purpose as stated in its authorizing statutes.

3. An independently elected governing body.

4. Exterior boundaries within or coterminous with a single county.

5. The power to impose and collect taxes.

6. Perpetual succession of its governmental existence, purpose, powers and governing body, subject to a prescribed dissolution procedure.

7. Corporate existence separate and apart from any other unit of government.

#2 Is the Planning Commission required to review the Cahava Springs Revitalization District petition before a Resolution of intent to form a Revitalization District can be considered or approved by the mayor and town council?  Yes.  The Planning Commission is vested with oversight in matters related to planning, zoning, etc. This is the reason the Planning Commission is the town authority vested under Arizona law with the drafting of the town’s 2015 General Plan.

The mayor and town council’s approval of Cahava Springs Revitalization District will officially reduce the size of the town of Cave Creek. Therefore, because approval of the Revitalization District will reduce the size of the town, present and future planning of the town will be affected, thus invoking and requiring the Planning Commission’s review of the Revitalization District petition and the forwarding of their recommendation to the mayor and town council before the mayor and town council’s approval of any Resolution of intent to form a Revitalization District.

It is unknown why the mayor has deemed the Planning Commission’s review not to be a required review.

In compliance with #1 above, at what stage of the Revitalization District petition process is the Planning Commission required to submit its recommendation to the county board of supervisors?

#3 Do the town’s Articles of Incorporation authorize the mayor and members of town council to reduce the corporate size of Cave Creek?  Unknown.  No authority allowing the reduction in size of an incorporated municipality could be found to exist except as a process for de-annexation.  A.R.S. 9-471.02.

The corporate size of Cave Creek will officially be reduced once the mayor and members of town council approve the formation of a town within our town, i.e., a Revitalization District. Upon approval of any Resolution, for taxing and other purposes, the town of Cave Creek and the Cahava Springs Revitalization District are required to file official amended land surveys for recording with the appropriate state and county offices.  The reduction in the size of the town of Cave Creek will be commensurate with the official land survey boundaries for the proposed Cahava Springs Revitalization District. 

Recording of the town’s and the Revitalization District’s boundaries with the Tax Assessor’s Office and other State offices voids all property taxing authority by the town of Cave Creek on property(s) inside the Revitalization District’s borders.  No property owners or future residents inside the borders of Cahava Springs Revitalization District will be required to pay a town of Cave Creek property tax as long as the Revitalization District remains in existence.

The existence of a Revitalization District is perpetual -- forever. 

#4.  If a Revitalization District petition is approved, will the citizens of Cave Creek be required to pay a property tax or assessment(s) on municipal services in order to pay the town’s proportionate share of the infrastructure installed outside the borders of Cahava Springs Revitalization District? Yes, unless the town has the required funds without imposing a property tax or assessment.  

In fact, the Revitalization Districts statute requires that the Resolution of intent to form a Revitalization District approved by a municipality (Cave Creek) contain a tax levying provision declaring that approval may result in either an assessment on municipal services or that a property tax be levied on the citizens of the municipality (i.e. Cave Creek citizens).[v]  In adherence to this mandatory statutory language, the two prior Resolutions approved by the mayor and town council contained this statutory provision.[vi]

Unless the town has the required funds without imposing a property tax or assessment(s) a property tax or assessment(s) will be required to give the town access to funds to pay the town’s required proportionate share of infrastructure costs.  The Revitalization Districts statute (1) prohibits a Revitalization District from paying all of the infrastructure costs installed outside the Revitalization District’s borders, or, (2) it requires that the town of Cave Creek reimburse the Revitalization District for the town’s proportionate share of any infrastructure benefit the town gains from the infrastructure paid for by the Revitalization District and installed outside the Revitalization District’s borders.[vii]  Mark Stapp has stated that all of the infrastructure will be installed outside the borders of Cahava Springs Revitalization District and that all of the infrastructure costs --- $20-million dollars --- will be paid by the Revitalization District. 

A municipal assessment(s) or a property tax will be necessary to comply with the law and pay whatever is judged to be the town’s proportionate share of this $20-million dollar infrastructure expense.  As stated above, in addition to the town paying its proportionate share of the installation costs, the statute also requires the town to provide a funding source to pay for the long-term operation and maintenance costs of the infrastructure installed outside the borders of the Revitalization District. This will require funding through municipal assessment(s) or a property tax.

How is a proportionate share determined? The “proportionate share” is determined by calculating the benefit of such improvements to the town and to Cahava Springs Revitalization District.  The Revitalization Districts statute gives this decision-making authority to the 3-member Board of the Revitalization District.[viii]  However, in the event of foreclosure or bond default by Cahava Springs Revitalization District, if the bond holders or the Bankruptcy Trustee finds the town’s proportionate share to be deficient, the 3-member Board’s proportionate share decision could be challenged exposing the town to as much as 100% of the $20-million dollars in infrastructure costs.

Any proportionate share computation should be based on the following facts:  There are 230 home sites within the proposed Cahava Springs Revitalization District borders.  Under the town’s Open Space Agreements there are 2,515 homes required to be built within Cave Creek’s borders.  The town will gain an infrastructure benefit for these 2,515 homes as a result of the infrastructure installed outside the Revitalization Districts borders and paid for by Cahava Springs Revitalization District.  Under this scenario, the infrastructure benefit to the town, and therefore its proportionate share, is at least ten times greater than the proportionate share of the infrastructure benefit to Cahava Springs Revitalization District.[ix]

A property tax must be approved by Cave Creek citizens.  However, the mayor and town council members can impose assessment(s) on municipal services to pay the town’s proportionate share without obtaining the approval of Cave Creek citizens.  The 300% water rate increase is an example of an assessment imposed on Cave Creek citizens by the mayor and town council.

If a property tax should be approved by Cave Creek residents to pay for the town’s proportionate share of infrastructure costs, no Cahava Springs Revitalization District resident will be required to pay this property tax as long as the Revitalization District remains in existence.  The existence of a Revitalization District is perpetual.

In full disclosure, the two prior and now void Resolutions contained a provision declaring that the town will not be responsible for payment of infrastructure costs. Unlike the mandatory statutory provision requiring notice of the likelihood of a property tax or assessment be contained in any Resolution, this non-payment provision is not a mandatory statutory provision, nor is it based on any other statutory requirements.  This provision in the Resolutions is unenforceable and wholly contrary to all of the legal requirements that notice of the likelihood of a property tax or assessment be given to citizens. 

Without invoking the authority in #5 below, before approval of (yet) another Resolution of intent to form a Revitalization District, the mayor and members of town council should publicly explain where and how the required funds to pay the town’s proportionate share of infrastructure costs and the long-term maintenance and operation costs of the infrastructure will be obtained without an assessment(s) or property tax.

#5.  Are the mayor and town council members authorized to order payment of the town’s proportionate share – including bond service costs -- without citizen approval?  Yes.  The Revitalization Districts statute allows the mayor and town council members to summarily participate in the payment of the bond debt service.  The definition of “summarily” means “without notice; precipitately.”  The entire statutory section reads:  48-6811. Participation by Municipality.  The governing body of the municipality, by resolution, may summarily order the participation by the municipality in the costs of any public infrastructure purpose, including the payment of bond debt service.  

The “municipality” referenced in this provision is Cave Creek as Cahava Springs Revitalization District is not an incorporated city or town, does not meet the criteria to be an incorporated city or town, and is not a municipal corporation.

#6.  Is a Revitalization District a municipality the same as every other city or town in Arizona?  No.  The proposed Cahava Springs Revitalization District fails to meet the constitutional requirements for forming a city or town.  The Arizona Constitution outlines the requirements for forming a city or town.  Those requirements are contained in Article 13 “Municipal Corporations,” Section 2 of the Arizona Constitution.  Among its many requirements, section 2 mandates that to form a city or town the proposed municipality must contain a population of more than 3,500[x] residents, and that 14 qualified electors from the proposed municipality compose the board of freeholders. 

Despite the constitutional deficiency of a Revitalization District, the Arizona legislature has endowed these “Special Taxing Districts” with quasi-municipal authority to levy taxes.  Taxing authority is constitutionally-restricted to incorporated cities, towns, or municipal corporations, of which Cahava Springs Revitalization District is not.

NOTE:  There are indications that a Revitalization District would qualify as a “franchise.” However, under the Arizona Constitution, “Municipal Corporations,” Article 13, Sec. 4, approval as a franchise would be decided by the residents of Cave Creek, not the mayor and members of town council.[xi]  See, also #7 below.

#7.  Does the Arizona Constitution authorize a Revitalization District with tax levying authority? No.  To possess the qualifying criteria to be a tax levying authority the entity must be a constitutionally-created incorporated town or city, or the entity must be a municipal corporation.  The Arizona Constitution authorizes tax levying authority to incorporated cities, towns, and municipal corporations only. [xii]  The statutory restriction on this tax levying authorization is evidenced in A.R.S. Title 9, Ch. 1, Art 3,  9-137. Powers and duties.  “Cities and towns incorporated pursuant to the provisions of this article shall have all the powers, duties, rights and privileges granted to incorporated cities and towns under the laws and constitution of this state.

The Petitioners for Cahava Springs Revitalization District are for-profit corporations, not municipal corporations, and are not a constitutionally-created incorporated city or town.

Without being an incorporated city or town, or a municipal corporation, the Petitioners for Cahava Springs Revitalization District cannot levy or collect taxes or assessments.  And, without tax levying authority, the funding mechanism necessary for the Petitioners of the Revitalization District to repay the $20-million dollars in bond money to its bond holders does not exist.  See, also #6 above. 

#8. Are Cave Creek residents allowed to submit oral or written comments for the Formation Hearing?  This answer depends on the mayor. However, if the mayor were to recognize that there are others besides Mark Stapp who have a property interest inside the borders of Cahava Springs Revitalization District, it would mean at least a 6-month delay in the council’s approval of any Resolution of intent to form a Revitalization District. And by all appearances, the mayor and members of town council are working toward an expedited approval of the Revitalization District.

Section (B) of A.R.S. 48-6803 Notice states that notice of the Formation Hearing must be given to “all other persons claiming an interest in such property who have filed a written request for a copy of the notice within the six months preceding or at any time following the adoption of the resolution of intent to form the district.”

To date, the mayor and members of town council have never challenged Mark Stapp’s claim that he is sole owner of the property inside the proposed Cahava Springs Revitalization District and they have failed or refused to recognize that others have a property interest inside the borders of Cahava Springs Revitalization District. The mayor and members of town council have already approved two Resolutions in reliance of Mark Stapp’s claim as sole owner in total disregard of the property interest of Cave Creek citizens and an independent, third-party non-profit.

Those other persons with a property interest are the citizens of Cave Creek and an unknown independent, third-party non-profit Arizona corporation. 

The Revitalization District statute states that persons claiming a property interest within the borders of the proposed Revitalization District can submit oral or written comments for the Formation Hearing. Under A.R.S. Title 9, Ch. 2, Art. 3, 9-254. Title to streets[xiii] the citizens of Cave Creek have had a property interest within the borders of Cahava Springs Revitalization District since 2006 when the Final Plat for the Cahava Springs development was approved.  In addition, and as evidenced in #9 below, the April 25, 2005 Pre-Annexation and Development Agreement Between Town of Cave Creek and Apache Springs Land, L.L.C. (“Development Agreement”) also gives the citizens of Cave Creek and an independent, third-party non-profit a property interest inside the border of Cahava Springs Revitalization District.

POLITICAL NOTE:  A.R.S. 48-6803(B) states that the notice of the Formation Hearing can be published in the “official newspaper of the municipality, if there is one…”  The May 18, 2015 town council meeting agenda contained an agenda item asking the town to declare the Sonoran News to be the “official newspaper of the municipality” (Cave Creek).  No decision was made on this agenda item at the May 18th meeting.  The matter was continued to negotiate a lower cost for publishing legal notices in the Sonoran News  than what Don Sorchych stated he would be willing to charge.

#9.  Are there persons other than Mark Stapp who can claim to have a property interest within the boundaries of the proposed Cahava Springs Revitalization District?  Yes.  Those persons are the citizens of Cave Creek and an unknown, independent, third-party non-profit Arizona corporation.

The April 25, 2005 Pre-Annexation and Development Agreement Between Town of Cave Creek and Apache Springs Land, L.L.C. (“Development Agreement”) gives the town (i.e. Cave Creek citizens) and/or an independent third-party non-profit corporation a property interest within the proposed Cahava Springs Revitalization District borders. If the property interest of Cave Creek citizens and the independent, third-party non-profit Arizona corporation has not been abridged by the mayor, town council, staff, or Mark Stapp via any of his multiple corporate entities, the Cahava Springs Revitalization District petition must be halted until these “other persons” have been afforded Due Process.

Under the right to Due Process, the citizens of Cave Creek and the independent, third-party non-profit must be given six months’ notice[xiv] of the mayor and town council’s intent to form a Revitalization District before the mayor and town council can approve any Resolution of intent to form a Revitalization District. 

The Development Agreement clearly states that ownership of the Open Space system within the now proposed Cahava Springs Revitalization District is required to be titled and under the control of either the town or an independent, third-party, non-profit.  Therefore, either the town or this independent, non-profit third-party can lawfully assert to having a property interest within the proposed Cahava Springs Revitalization District’s borders by means of the Open Space system. 

The Development Agreement contains the following pertinent trail and open space provisions:

Trail System within Cahava Springs Revitalization District:  At pg. 7, of the Development Agreement, section 3.5 Trails  it states that trail “easements shall remain privately owned and maintained, but shall be available to the public” or that trails existing as public trails “shall be publicly owned and maintained.”  Mark Stapp has claimed that 3 ½ miles of trails exist within the borders of the proposed Cahava Springs Revitalization District.  Are these trails “privately owned” or “publicly owned”?  If “publicly owned,” are the trails are owned by Cave Creek or Maricopa County?  Have the requisite deeds been recorded in the Official Records of Maricopa County? If so, when and what is the recording number(s)?  If “privately owned” are the trails recorded as easements or have other protections been recorded to assure continued public access to the trail system after approval of the Cahava Springs Revitalization District?  If so, where is a copy of these recorded easements?

Open Space System within Cahava Springs Revitalization District:  At pg. 7, of the Development Agreement, section 3.6 Open Space, it states that “…the Owner agrees that within ninety (90) days of preliminary plat approval by the Town for the entire Property, the Owner shall voluntarily and without consideration convey at least 175 acres (“the Preserved Open Space”) of the Town Property to, at its sole discretion, either the Town or an independent, non-profit, third-party capable of managing the Preserved Open Space…” 

Official records indicate that Final Plat approval was recorded in the Official Records of Maricopa County in 2006. Official records also indicate that the Open Space System was transferred to one of Mark Stapp’s non-profit corporations, Cahava Springs Conservancy.  This transfer of the Open Space system to Mark Stapp via one of his corporations violates the terms of the Development Agreement.  The Development Agreement requires that the Open Space system become either town property, or that it be placed in the possession of an independent, non-profit third-party.  Any possession or transfer of the Open Space system to Mark Stapp, or that includes any of Mark Stapp’s multiple corporations, does not comply with the agreed upon terms of the Development Agreement.

A search on the Arizona Corporation Commission website indicates that Cahava Springs Conservancy, the non-profit corporation to whom possession of the Open Space was transferred, was dissolved and has not been a corporation in good standing in Arizona since May, 2013.  See also #11.   What entity is in possession of the Open Space system?

Was there ever any deed(s) recorded in the Official Records of Maricopa County giving the Open Space system land to the Cahava Springs Conservancy?  If so, what is the recording number? What independent, third-party non-profit entity now has recorded title and possession of the Open Space system land?  Is the deed giving this entity ownership of the Open Space system recorded in the Official Records of Maricopa County? If so, what is the recording number? 

#10.  Have the original terms of the April 25, 2005 “Pre-Annexation And Development Agreement Between Town Of Cave Creek And Apache Springs Land, L.L.C.,” been officially amended or extended?  Unknown.   The claim by the mayor and Mark Stapp and his legal counsel the law firm of Gammage and Burnham, is that an extension was signed and that the 2006 Final Plat was amended.

According to records, the Final Plat was approved in 2006.  There was an amendment to the Final Plat during a town council meeting on October 6, 2014. It is unknown whether the Final Plat amendment approved by the town council on October 6, 2014 was recorded in the Official Records of Maricopa County within 10 days of the executed amendment in accordance with p. 14, section 5.16 of the Development Agreement.

The original April 25, 2005 “Pre-Annexation And Development Agreement Between Town Of Cave Creek And Apache Springs Land, L.L.C.” was for a period of ten (10) years.  Absent evidence of an extension signed by all authorized parties, the Development Agreement expired on April 25, 2015.

A search of every town council meeting agenda item from April 25, 2005 to the present date does not evidence any extension(s) of the Development Agreement being placed on a town council meeting agenda for council approval and mayor signature.[xv]  As a budget item, town council approval at a town council meeting is required. At p. 14, section 5.16 of the Development Agreement it states that any amendments or extensions are required to be recorded  in the Official Records of Maricopa County within 10 days of the executed extension(s) or amendment(s).

Where is the documentation evidencing the dates on the recording of the amendment(s) and extension(s)?

#11.  Who were the parties authorized to sign an amendment or extension of the April 25, 2005 “Pre-Annexation And Development Agreement Between Town Of Cave Creek And Apache Springs Land, L.L.C.”  For the town of Cave Creek, the authorized signer would be the mayor.  If any amendment(s) or extension(s) of the Development Agreement was signed after May 12, 2011, the only parties authorized to sign on behalf of Apache Springs Land, L.L.C., are its managers John May, Jeffrey Peoetsch, and Tom Javits. As of May 12, 2011 Mark Stapp is designated as a “Member” of Apache Springs Land L.L.C., not as a “Managing Member” as he claimed in 2005. 

Of further note is the fact that, Mark Stapp signed the May 12, 2011 amendment to the Apache Springs Land, L.L.C. Articles of Incorporation as “MS Stapp Investments, Inc.”  However, the Arizona Corporation Commission website reflects that “MS Stapp Investments, Inc.,” has not been a corporation in good standing in Arizona since August 11, 2009. See, also #9 above.

This article does not begin to shed light on all of the legal issues and questions related to Revitalization Districts.  As decisions continue to be made by the mayor and members of town council, the legal issues and questions surrounding those decisions will be researched and appear in further articles.

Watch this space.  Be informed. Stay informed. Get involved. Demand the truth.

Share your thoughts, questions, or comments below.  Just remember the rules: Be nice … be honest … or be deleted. (All social media links are not currently active.  To leave a comment or read the comments of others please use "Comments" button below the endnotes.)

Janelle Smith-Haff

[email protected]

Tuesday, May 26, 2015


[i] Resolution No. 2015-13.

[ii]Arizona Constitution, Art. 14, Sec. 5.  Foreign corporations; transaction of business. No corporation organized outside of the limits of this state shall be allowed to transact business within this state on more favorable conditions than are prescribed by law for similar corporations organized under the laws of this state; and no foreign corporation shall be permitted to transact business within this state unless said foreign corporation is by the laws of the country, state, or territory under which it is formed permitted to transact a like business in such country, state, or territory.

[iii]Other referenced citations in this article appear in these endnotes.

[iv] A.R.S. Title 48, Ch. 39, Art. 1.

[v] A.R.S. Title 48, Ch. 39, Art. 1,  48-6802  Resolution of intent; eligible participants; district board. (6) That formation of the district may result in the levy of taxes or assessments to pay the costs of improvements constructed by the district and for their operation and maintenance.

[vi] Resolution No. 2015-13, Sec. 2(G):  “The formation of the District will result in the levy of special assessments or ad valorem taxes to pay costs related to: (i) the formation and operation of the District;  (ii) infrastructure improvements financed, constructed or acquired by the District; and (iii [sic]) operation and maintenance of such infrastructure improvements.”

[vii] A.R.S. Title 48, Ch. 39, Art. 1, 48-6801 Definitions. 8. “Infrastructure.”

[viii] The mayor and town council, not Mark Stapp, appoint the 3-member Board of the Revitalization District.

[ix] Some could rightly argue that certain Cave Creek residents will immediately benefit from the infrastructure installation whereas Cahava Springs Revitalization District will receive no infrastructure benefit because no infrastructure will be installed inside the border of Cahava Springs Revitalization District and there are no residents.  Acceptance of this argument exposes the town to paying 100% of the $20-million dollars in infrastructure costs.

[x] “2. Charter; preparation and proposal by board of freeholders; ratification and approval; amendment  Any city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state, in the following manner: A board of freeholders composed of fourteen qualified electors of said city may be elected at large by the qualified electors thereof, at a general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city. Such proposed charter shall be signed in duplicate by the members of such board, or a majority of them, and filed, one copy of said proposed charter with the chief executive officer of such city and the other with the county recorder of the county in which said city shall be situated. Such proposed charter shall then be published in one or more newspapers published, and of general circulation, within said city for at least twenty-one days if in a daily paper, or in three consecutive issues if in a weekly paper, and the first publication shall be made within twenty days after the completion of the proposed charter. Within thirty days, and not earlier than twenty days, after such publication, said proposed charter shall be submitted to the vote of the qualified electors of said city at a general or special election. If a majority of such qualified electors voting thereon shall ratify such proposed charter, it shall thereupon be submitted to the governor for his approval, and the governor shall approve it if it shall not be in conflict with this Constitution or with the laws of the state. Upon such approval said charter shall become the organic law of such city and supersede any charter then existing (and all amendments thereto), and all ordinances inconsistent with said new charter. A copy of such charter, certified by the chief executive officer, and authenticated by the seal, of such city, together with a statement similarly certified and authenticated setting forth the submission of such charter to the electors and its ratification by them, shall, after the approval of such charter by the governor, be made in duplicate and filed, one copy in the office of the secretary of state and the other in the archives of the city after being recorded in the office of said county recorder. Thereafter all courts shall take judicial notice of said charter.  The charter so ratified may be amended by amendments proposed and submitted by the legislative authority of the city to the qualified electors thereof (or by petition as hereinafter provided), at a general or special election, and ratified by a majority of the qualified electors voting thereon and approved by the governor as herein provided for the approval of the charter.”

[xi] Arizona Constitution, Article 13, Sec. 4. Franchises; approval of electors; term  “No municipal corporation shall ever grant, extend, or renew a franchise without the approval of a majority of the qualified electors residing within its corporate limits who shall vote thereon at a general or special election…” 

[xii]Arizona Constitution, Article 9, Sec. 6:  6. Local assessments and taxes Incorporated cities, towns, and villages may be vested by law with power to make local improvements by special assessments, or by special taxation of property  benefited. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes.

[xiii] A.R.S. Title 9, Ch. 2, Art. 3, 9-254. Title to streets Upon filing a map or plat, the fee of the streets, alleys, avenues, highways, parks and other parcels of ground reserved therein to the use of the public vests in the town, in trust, for the uses therein expressed. If the town is not incorporated, then the fee vests in the county until the town becomes incorporated.

[xiv] A.R.S. Title 48, Ch. 39, 48-6803. Notice.  Section (B).

[xv] There was a town council meeting on October 6, 2014 regarding Final Plat amendment approval for Cahava Springs but this meeting did not involve an extension of the original Development Agreement.

The following email was sent to Mayor Francia and members of the Town Council:

TO: Mayor Francia and Members of Town Council:

The Petitioners for the Cahava Springs Revitalization District are three Nevada-based corporations: Cahava Springs Phase 1, Inc., Cahava Springs Development Corporation, and Morningstar Properties, Inc..  On this date I have confirmed with the Arizona Corporation Commission that these three corporations do not exist as Arizona corporations and that none of these three Nevada-based corporations have filed the paperwork required by the Arizona Corporation Commission which allows foreign corporations to transact business in Arizona.  The seriousness of this discovery need not be debated.

Based on the April 16, 2015 ruling by the judge that Morningstar Properties, Inc., is an indispensable party in the Freeman, et. al. lawsuit, I have forwarded this information to the attorney representing Jerry Freeman.

Janelle Smith-Haff

Thursday, April 30, 2015

[email protected]

www.cavecreektownhallblog.com
typo correction: the word "Road" was omitted when typing "Morningstar Road Properties, Inc."  The corporate status was against Morningstar Road Properties, Inc.  jsh 

 



 

Points of Clarification re April 28th Informal Meeting:

There were approximately 150 Cave Creek residents in attendance.  Far more than the mayor expected.  There was no opportunity during the meeting for clarification of certain statements made by Mark Stapp.  Here are a few clarifications:

The unimproved land inside Cahava Springs Revitalization District will be used as collateral to obtain $20-million dollars in bond money.  The bond holders will be repaid using the property taxes collected against owners of property inside Cahava Springs Revitalization District.  However, Mark Stapp owns all the property inside Cahava Springs Revitalization District and has stated that no houses or infrastructure will be built inside the border of Cahava Springs Revitalization District.  The start of infrastructure installation is set to begin June, 2015.  The infrastructure installation is expected to be completed by December, 2015.  All of the $20-million dollars in bond money is earmarked for infrastructure and related expenses.  Within the space of six months Mark Stapp will spend $20-million dollars, and using the property tax money he will assess against himself as sole owner of property inside Cahava Springs Revitalization District, repay the bond holders their $20-million dollars plus interest.

Clarification re: bridge:  Mark Stapp stated that there will not be a bridge connecting Cahava Springs Revitalization District over the creek to Morning Star Road.  In truth, the bridge will be built on the 30± acres of property that fronts the Freeman property, crosses east over the creek, and ends at Morning Star Road.  This 30± acre parcel is not currently part of the proposed Cahava Springs Revitalization District.  However, under the Revitalization Districts statute, Mark Stapp is allowed to acquire that piece of property as part of the Cahava Springs Revitalization District as there is nothing in the statute requiring the properties be contiguous.  And, it just so happens that Mark Stapp’s corporate entity Morningstar Road Properties, Inc., owns that 30± acre parcel.

Clarification re: deeding of infrastructure:  Mark Stapp kept referring to the fact that, after the infrastructure was installed it would be deeded over to the town.  Given that he claims all of the infrastructure is being installed outside of the Cahava Springs Revitalization District’s borders, he is legally required to do this.  However, if any infrastructure was to be installed inside the border of Cahava Springs Revitalization District, there is no legal requirement that Cahava Springs Revitalization District deed any of that infrastructure over to the town.  Only upon approval by the residents of Cahava Springs Revitalization District can the 3-member Board of Cahava Springs Revitalization District deed any infrastructure installed inside Cahava Springs Revitalization District over to the town.  As long as there are bond holders it would be very unlikely the infrastructure could or would be deeded to Cave Creek, as turning over ownership of the infrastructure would diminish the value of the land and it is the land which is secured as collateral for the bond funding. 

Clarification re: “zoning” rights:  The only municipal authority a Revitalization District doesn’t have is the power of eminent domain and the power to enact zoning ordinances.  A Revitalization District does, however, have the power to interpret zoning policy, and the zoning policy of Cave Creek, as it appears in our existing General Plan, is a town-wide DR-43 zone overlay (lot sizes of less than one acre.)  This DR-43 zoning interpretation of our General Plan is what will allow Cahava Springs Revitalization District to reduce the lot sizes to less than one-acre within Cahava Springs without the need to obtain town council approval.

“The Revitalization District is nothing more than a funding mechanism.”  If the Revitalization Districts statute is “nothing more than a funding mechanism,” why does the Revitalization Districts statute require the town of Cave Creek cede all governing authority over the Cahava Springs Revitalization District to the 3-member Board of Cahava Springs Revitalization District?

The council is expected to vote on final approval of the Revitalization District as early as May. 

 

If you hear or if you are told that the mayor and town council members will negotiate terms and conditions with Mark Stapp before final approval of Cahava Springs Revitalization District, and that final approval of the Cahava Springs Revitalization District Resolution will incorporate those terms and conditions, this is not true.  And here is why:  Under the Revitalization Districts statute, only (i) after Cave Creek town council’s approval of the Cahava Springs Revitalization District, and (ii) only after Cahava Springs Revitalization District complies with A.R.S. 48-6805 and A.R.S. 48-6807, and (iii) only after the 3-member Board of Cahava Springs Revitalization District appoints Mark Stapp as one of its Directors and authorizes Mark Stapp with contract binding authority for Cahava Springs Revitalization District can any agreements---written or oral---between the town of Cave Creek and Cahava Springs Revitalization District be lawful and enforceable.

Therefore, as Mark Stapp presently has no statutory contract binding authority on behalf of Cahava Springs Revitalization District, any agreed upon terms between Mark Stapp and the town council are unenforceable—even if the terms and conditions are in writing. 

This is why the mayor and town council’s final approval of Cahava Springs Revitalization District is required to be an unconditional “yes” or “no” vote.

There is also a lot of wrong information being disseminated about Formation Hearings.  Only written objections to the formation of Cahava Springs Revitalization District can be filed for this hearing, and only persons owning or claiming an interest in property in the proposed Revitalization District are authorized to file written objections. Here is how the Revitalization Districts statute reads:

The Revitalization Districts provisions A.R.S. 48-6803 and A.R.S. 48-6804 provide the statutory procedure for giving notice and conducting the Formation Hearing, and A.R.S. 48-6803(A) states that notice of the Formation Hearing need only be sent to “persons owning or claiming an interest in property in the proposed district who object to the inclusion of their land in the district, to the formation of the district or to the contents of the general plan must file a written objection with the undersigned at the following address before the time set for hearing.” A.R.S. 48-6803(B) mirrors the provision of A.R.S. 48-6803(A) as to those persons to who notice is required. Mark Stapp claims to own all property.  The Revitalization Districts statute also states that all testimony and comments to be considered at the Formation Hearing must be submitted in writing, A.R.S. 48-6803(A), A.R.S. 48-6803(B), A.R.S. 48-6804(A) and A.R.S. 48-6804(B). This written requirement is also reflected in Resolution No. 2015-13 which the town council approved on April 20th.   At page 3(F) of Resolution No. 2015-13, it states that “Written objections as provided by the Act may be filed with the Clerk at 36722 N. Cave Creek Road, Cave Creek, Arizona before 5:00 pm on the business day preceding the date of Formation Hearing.” 

Even if the Mayor were to allow Cave Creek citizens to speak at a Formation Hearing, what is the point of a Formation Hearing if final approval cannot reflect and incorporate the concerns of Cave Creek citizens? 

The Formation Hearing is to be held at Town Hall (E).  When the concerns and objections of Cave Creek citizens cannot be incorporated into the final approval of the Cahava Springs Revitalization District, why are Town Hall facilities and employees being used to organize and conduct a Formation Hearing?

Another claim citizens might hear is that the Cahava Springs Revitalization District can be dissolved at any time by the town council since the Cahava Springs Revitalization District was formed under the Resolution process.  This is also not true.  In the normal course, a Resolution can be revoked by a town council at any time for any reason.  But, read as a whole, under the Revitalization Districts statute, the only entity allowed to dissolve Cahava Springs Revitalization District is Mark Stapp via his three corporate entities. Because the Cahava Springs Revitalization District is a municipality unto itself and not subject to Cave Creek governance, our town’s revocation of our Resolution will have no effect on the continued existence of Cahava Springs Revitalization District.  Final approval of Cahava Springs Revitalization District by our mayor and town council gives Mark Stapp, via his three corporate entities, the right to exist as a town within our town in perpetuity, unless he chooses otherwise.

Town councils in other towns and cities in Arizona realize how toxic this Revitalization Districts statute is.  It is time our mayor and town council members realize the same.

Janelle Smith-Haff

www.cavecreektownhallblog.com

[email protected]

Cave Creek citizens:  We still have time to make sweet lemonade from the sour lemons our mayor and town council members have handed us.

The Revitalization Districts statute is so poorly written that it has been very difficult to identify the location of those rights which are inherent in all statutes.  The right to Due Process is one of those rights inherent in all statutes.  The procedure affording Due Process in the Revitalization Districts matter is contained in the A.R.S. 48-6803 Notice provision of the Revitalization Districts statute and identifies the Due Process violation committed by our mayor and town council members in their rush to approve Resolution No. 2015-13.

The approval of a Revitalization District requires two steps: (1) notice of the council’s intent to form a district and (2) notice of the council’s intent to approve the forming of a Revitalization District.  To comply with Due Process, the notice of intent to form a district must be published as a legal notice at least six months before the council’s hearing on approval for forming a Revitalization District.  In this instance, the notice of the council’s intent to form a district and the council’s approval for forming a Revitalization District was combined into one document for one town council meeting conducted on April 20, 2015.

As per the statute, notice of the intent to form a district must be given to all persons claiming to have an interest in the property contained in the Revitalization District and, again, this notice must be published at least six months prior to the council’s hearing on approval for forming a Revitalization District.  Every Cave Creek citizen can claim to have the requisite “interest in the property” by virtue of the fact that 300± acres of open space land and trails in the proposed Revitalization District property was previously gifted to the town by Mark Stapp.  In fact, this was stated by Mark Stapp at the town council meeting.

What the town owns, its citizens own, and therefore its citizens possess the requisite “interest in the property” invoking the Due Process protection that requires six months’ notice of the council’s intent to form a district be given before the council’s approval for forming a Revitalization District. 

Today, and based on the council’s violation(s) of Due Process as identified above, I will be submitting to our mayor and town council members a request for reconsideration and immediate revocation of  their approval of Resolution No. 2015-13.  I urge every citizen to make the same request by either forwarding a copy of this email to our mayor and town council members or by creating your own request.  Here is the contact information for the mayor and town council members: [email protected];  SL[email protected]; [email protected];  [email protected];  [email protected]; [email protected]; [email protected]

This town already spends too much money on legal fees.  It would be reprehensible for our mayor and town council to refuse a request for reconsideration and revocation of Resolution No. 2015-13  and force Cave Creek citizens to sue residents in our own town over a matter which can be cured with their reconsideration and revocation of Resolution No. 2015-13.

Your attendance at the informal meeting on Tuesday, April 28, 2015 at 7 pm is more important than ever.  Demand Due Process to save our town.

Janelle Smith-Haff

Saturday, April 25, 2015

www.cavecreektownhallblog.com

[email protected]

Dear Creekers,
   
          It takes two council meetings to pass a town ordinance.  Our present town council has said it will take another year of work before the town’s General Plan will be submitted to us for our vote of approval. Mayoral committees are formed so that an issue can be fully investigated before being decided.  But it took only one meeting and about five minutes of discussion by the mayor and council members to irreversibly and permanently change our unique town.  We won’t see the bulldozers as early as tomorrow, but even when we do there will be nothing we can do to change the course.  Our mayor and town council took that power away from us and, at the same time, made sure that no future mayor or town council will have the power of change, either.

         This will be their legacy.

         I would like to think their hearts were in the right place when making their decision to allow a town within our town, but first a heart must be present, and there is no evidence of that.  One cannot give away the heart and soul of what Cave Creek is and claim to have a heart. There are Creekers who understand how our future is determined by the council’s decision to allow another town to exist within our town.  It is truly sad that no one with this understanding is sitting on our town council.

        Several Creekers attended the April 20, 2015 town council meeting when Revitalization District Resolution No. 2015-13 was approved.  They stood at the podium, asking questions--to which they received no answers--and requesting that our mayor and council members give more citizens an opportunity to express their voice and their choice about such an important issue before they decide the issue for us. After all, what was the rush?  There is nothing in the law which would have prevented our mayor from allowing this to be delayed.  The brave Creekers who spoke in passionate defense of our town and against approval of Revitalization District Resolution No. 2015-13 were subjected to a lack of professional decorum by the mayor and this council that would be neither legal nor tolerated in a work place environment. 

        According to our town clerk Carrie Dyrek, the clock is ticking.  Creekers have less than thirty days to initiate and complete a referendum campaign.  Even a successful referendum campaign, however, will not change the dark and ugly underbelly of Cave Creek politics.  This is what Creekers truly want to change about our town.  And, this is the course those of us who oppose the mayor and town council’s approval of Revitalization District Resolution No. 2015-13 will be pursuing.  

              It is now more important than ever that Creekers attend the informal meeting at 7 pm on Tuesday, April 28th.  We all have many, many questions, but the most important question the mayor should be asked is “Why?”

            See you at the meeting,

Janelle Smith-Haff

www.cavecreektownhallblog.com

[email protected]

April 23, 2015

It has been reported to me that during the recent recall campaign the four challengers promised residents on the west-side that, if they were elected, an east-west bridge crossing over the creek would be built before the expiration of the Area 96-1 Annexation Agreement. 

It turns out our four newest members on the council were right.  If a Revitalization District is approved, Mark Stapp, via his three corporate entities, could build a bridge over the creek before the expiration of the Annexation Agreement without the town being the actual violator of the Annexation Agreement.  However, this scenario makes the more pertinent question being not whether the town council violated the Annexation Agreement but whether members on the town council conspired with Mark Stapp and/or any of his three corporate entities to cause the Annexation Agreement to be violated.  That would be a violation of the Annexation Agreement.

Under the RD statute, infrastructure can be installed outside an RDs border if there is some benefit to the RD.  A bridge is infrastructure and the sole person who will decide the benefit of a bridge is Mark Stapp.  An RD can also acquire property outside its borders if there is a benefit and additional points of ingress and egress for the RD known as Stapp Town could be the claimed benefit. Outside Stapp Town’s border is a 30-acre parcel that extends west across the creek beginning at Morning Star and Old Stage Roads.  It is a perfect site for a bridge and it’s already owned by Morningstar Road Properties, Inc., of which Mark Stapp is President.  It is also one of the three corporate entities that comprise the owners of Stapp Town. 

Stapp Town can acquire the 30-acre parcel as part of Stapp Town. And, even though a bridge over the creek is a violation of the Annexation Agreement, Mark Stapp is not a party to the Annexation Agreement.  Our town council cannot require Mark Stapp’s compliance with the Annexation Agreement because Cave Creek has no governing authority over Stapp Town once it gives final approval of the Resolution.  The western boundary of the Annexation Agreement is where the eastern boundary of the 30-acre parcel begins.  As long as the bridge stops at its eastern boundary within Stapp Town, the town will not have violated the Annexation Agreement.  Yet, there will be a bridge.

Before I close, I want to state a few other things. The RD requires that the infrastructure provide enhanced municipal services inside the border of Stapp Town. These enhanced municipal services must be installed in Stapp Town if any infrastructure is to be installed outside the borders of Stapp Town. Per Mark Stapp, no infrastructure will be installed inside the border of Stapp Town.  Clearly, this town council has foreknowledge of Mark Stapp’s intention to violate the RD statute by not installing any infrastructure inside Stapp Town.  I would like our town attorney to state the legal theory that cloaks this town with immunity or contingent liability protection when this council has foreknowledge of Mark Stapp’s intention to violate the RD and approves the formation of his Revitalization District anyway.  

From the town council’s perspective the benefit to approval is that Cave Creek will be receiving free infrastructure and a bridge across the creek will bring additional development revenue to the town.  However, it’s not free when you give away any part of our town and expose Cave Creek to a future of litigation by residents or by others.

While other residents and I have asked for an informal meeting all I will settle for is a full and immediate revocation of the Resolution by this council tonight.


Janelle Smith-Haff

Monday, April 20, 2015