The research for this article addresses issues concerning the town’s lack of response to the concerns of residents about the grading and grubbing occurring on Lehman parcel #1.[i] This research was compiled using the same resources that the mayor, town council members, town manager, and town staff are required to rely on for governing the town. The resources are the town’s Ordinances, Appendixes and Exhibits, Town Code, Town of Cave Creek Technical Design Guidelines, the General Plan, and the Area 96-1 Annexation Agreement. The cited provisions do not constitute all of the provisions afforded to residents and property owners in Cave Creek concerning this issue. When reading this article the word “SHALL” means that town compliance is mandatory, and the word “MAY” means that town compliance is permissive. [source: Town Code Title I, Chapter 10, § 10.05 “Definitions.”] (Note to readers: The word “shall” has been highlighted in bold by the author whenever it appears in a cited provision.)
Many of the cited provisions expressly mandate the town’s compliance with those guidelines which have been developed for protecting residential zoning, private property rights, permits, etc.. In other cited provisions, the requirement for this compliance is guided by the following two provisions:
“C. Where, in any specific case, different sections of this Ordinance or any other Federal, State, County or Town ordinance or code specify different requirements, the more restrictive shall govern.” [source: Ordinance, Chapter 1, § 1.C] And,
“D. Where there is conflict between a general requirement and a specific requirement, the specific requirement shall apply.” [source: Ordinance, Chapter 1, § 1.D.]
This research compiled 63 reasons why the town requires permit application(s) and approval(s). There are numerous other provisions which are not cited. The town’s permit process was developed to ensure that the mayor, members of town council, town manager, and town staff make decisions that are not specific to any one person’s benefit: “E. This Ordinance is intended to benefit the public as a whole and not any specific person or class of persons. Any benefits and detriments to specific individuals or properties resulting from the implementation, administration and enforcement of this Ordinance are incidental to the overall benefit to the whole community.” [source: Ordinance Chapter 1, § 1.1(E), page 1.
PRIVATE PROPERTY RIGHTS AS A RIGHT.
REASON #1: “A. The purpose of this Ordinance is to: “4. Protect private property rights”. [source: Ordinance, Chapter 1, §1.1(4), pg. 1]
REASON #2: “A. Purpose: The regulations in this Chapter qualify or supplement the specific zone regulations related to private property appearing elsewhere within this Ordinance.” [source: Ordinance, Chapter 5, § 5.0(A), pg. 1]
REASON #3: The Area 96-1 Annexation Agreement contractually mandates the town to protect the low density residential zoning and private property rights for those properties in Area 96-1 until the Agreement expires in 2022. [source: Area 96-1 Annexation Agreement. [ii]] Because the Area 96-1 Agreement prohibits the town from widening Spur Cross Road and prohibits the town from establishing an east-west crossing over the creek, it also protects the residential and private property rights of homeowners living along Spur Cross Road as well as properties north of the town core. Further, the Area 96-1 Annexation Agreement protects the zoning density and rural character of the properties west of the creek as an east-west creek crossing would establish a new travel corridor in that area for all traffic wishing to by-pass Carefree Highway.
RESIDENTIAL ZONING PROTECTIONS THAT SERVE TO PROHIBIT BUSINESS/COMMERCIAL ACTIVITY.
REASON #4: The residential zones in Cave Creek are classified as Desert Rural (DR) Zones, Single Residence (R) Zones, and Multiple Residence (MR) Zones. [source: Ordinance Chapter 2, §2.0(A), pg. 1]
REASON #5: “A. Purpose: The purpose of the Desert Rural (DR) zone is to prevent urban and desert land use conflicts by protecting scenic vistas, protecting natural habitats and natural features such as hillsides and washes, and to ensure that residential development is harmonious and sensitive to the natural environment.” [source: Ordinance, Chapter 2, § 2.1(A), pg. 1]
REASON #6: “(C). The following uses are restricted to the Desert Rural (DR) residential zones: (1) Detached accessory living quarters, (2) Corrals, (3) Barns, (4) Horse shades, (5) Other private ranch uses incidental to the principal residential use.” [source: Ordinance Chapter 2, §2.4.A.(1)(C). pg. 9]
REASON #7: “B. Any use or occupation of a structure, parcel of land, or portion thereof, shall conform to the requirements of this Ordinance.” [source: Ordinance, Chapter 1, §1.4.B., pg. 3]
REASON #8: “Development of residential property would be low density in nature and type.” [source: The General Plan.]
PERMIT(S), PLAN(S), AND PERMISSION.
The town, Tom Lehman and his contractor have referred to the disturbed area[iii] on Lehman parcel #1 (Assessor Parcel Number 211-01-034) as a golf course, a 2-acre grass field – with or without putting holes, putting/chipping greens, and even a landscaping project. Regardless of how it is referred to the undisputed fact is that the work involved grading and grubbing and therefore, at a minimum, a site plan, a zoning clearance, and permit application(s) and approval(s) were required prior to any grading or grubbing.
REASON #9: “The issuance of a Zoning Clearance and Building Permit within any zone is required prior to the commencement of any grading and/or grubbing of any area within a lot or parcel.”[iv] [source: Ordinance Chapter 6, § 6.0., pg. 1]
REASON #10: “No grading, grubbing or permanent improvement work shall be commenced until all engineering plans and required drainage reports have been approved by the Town Engineer or consultant as provided by the Town Council. A Building Permit shall be required and conspicuously posted on the property a minimum of ninety-six hours (96 hrs.) prior to the commencement of any grading or grubbing. No temporary or permanent structure shall be constructed without first obtaining a Building Permit.” [source: Town of Cave Creek Technical Design Guidelines – Grading & Drainage § 2.2.1., pg. 11]
REASON #11: “E. No Building Permit or other permit required by this Ordinance shall be issued unless a Site Plan and Zoning Clearance have been submitted for review and approved by the Town.” [source: Ordinance Chapter 1, § 1.4(E), pg. 3]
On August 24, 2015, a Freedom of Information Act (FOIA) request was submitted to the town relative to the grading and grubbing work occurring on Lehman parcel #1. The FOIA was forwarded to the Planning Department by the Town Clerk.[v] The FOIA requested: “copy(s) of all pending or completed permit application(s), copy(s) of any and all site inspections conducted by any town employee, copy(s) or any and all permit/inspection approvals, along with all correspondence, notes, and letters relative to the following four (4) Lehman parcels:” (the Lehman’s four Assessor Parcel Numbers were listed in the FOIA.)
REASON #12: The town’s response to the FOIA was that no permits had been issued to Tom Lehman for the grading and grubbing.
On or about August 23, 2015 a formal complaint was filed with the town. The formal complaint requested that the town instruct Tom Lehman to cease and desist all grading and grubbing until the required permit approvals had been obtained.
REASON #13: “D. When any building or parcel of land regulated by this Ordinance is being used contrary to this Ordinance, the Zoning Administrator shall order such use discontinued and the structure, parcel of land, or portion thereof vacated by written notice served on any person causing such use to be continued. Such person shall discontinue the use within the time prescribed by the Zoning Administrator after receipt of such notice. [source: Ordinance Chapter 1, § 1.7(D), pg. 5]
Town Manager Peter Jankowski passed the formal complaint to Ian Cordwell in the Planning Department. To date there still has been no response to the citizen’s formal complaint, and the town never instructed Tom Lehman to stop the grading and grubbing on parcel #1.
The Lehman property consists of four contiguous parcels totaling 72± acres. To view the Lehman parcels, drive north on Spur Cross Road to Morning Star Road. Turn left onto Morning Star and drive to the top of the hill at 54th Street. Look north and you’ll see the property. It’s one parcel in from the intersection of Morning Star Road and Old Stage Road, on the north side. According to the Maricopa County Assessor’s map Lehman parcel #1 is residentially zoned DR-70 and consists of 16± acres; parcel #2 is residentially zoned DR-190 and consists of 28± acres; parcel #3 is residentially zoned DR-190 and consists of 24± acres; and parcel #4 is residentially zoned DR-190 and consists of 5± acres. The four parcels are located in Area 96-1.
The grading and grubbing occurring on Lehman parcel #1 was also referred to as landscaping. Landscaping permit(s) are in addition to the grading and grubbing permit(s) required in Ordinance, Chapter 6. Separate permits are required for work involving landscaping projects.
REASON #14: “1. Separate Permits are required for all salvage work as well as outdoor low voltage lighting and landscape work. The cost of permits will be determined at time of permit issuance.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 2.10.1, pg. 15]
REASON #15: “Landscape Plan: A Landscape Plan shall be required. See Section 13 - Landscape Plans of this Technical Design Guideline for Landscape Plan requirements.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 3.4.1, pg. 21]
REASON #16: “1. All Landscape Plans shall be submitted to the TOCC Building Department for review and approval processing. All associated plan review fees shall be paid at the time of plan submittal. 2. No Landscape Plans shall be accepted by the TOCC for review by the Town Arborist and/or Zoning Administrator unless accompanied by copy of the accepted Native Plant Inventory and Salvage Plans. Please refer to Section 8 – Native Plant Preservation and Salvage of this Technical Design Guideline for detailed plan requirements. 3. No permits for any landscape construction shall be issued until the owner or developer has provided all the necessary PUE’s and public ROW’s. The instruments of dedication shall be approved and submitted to the TOCC for recording at the Maricopa County Recorder’s Office. 4. All landscape construction documents used for Building Permit purposes shall be prepared by a TOCC approved landscape professional or State of Arizona Registered Landscape Architect.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 15.1 – Submittal Requirements, pg. 64]
REASON #17: “Minimum Landscape Plan Submittal Requirements: At a minimum the Landscape Plan shall contain and/or comply with the following requirements: [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 13.1.1.] (Note to reader: the list of these requirements can be found on pg. 60 of cited source.)
REASON #18: “Preservation and Salvage of Native Plants: The preservation and salvage of native plants as contained within Exhibit 1, of this Technical Design Guideline shall be required as part of any development.”[vi] [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 8.1.1, pg. 36]
REASON #19: “Native Plant Inventory and Salvage Plan: A Native Plant Inventory and Salvage Plan shall be required. See Section 8 – Native Plant Preservation and Salvage of this Technical Design Guideline for Native Plant Inventory and Salvage Plan requirements.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 3.4.2, pg. 21]
REASON #20: “Native Plant Inventory and Salvage Plan: A Native Plant Inventory and Salvage Plan shall be submitted to the TOCC for review and approval as a part of Landscape Plan submittal package. Since specific requirements differ from one land use to the next, be sure to reference the appropriate Section of this Technical Design Guideline when preparing all required plans.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 8.1.3, pg. 37]
REASON #21: “Protected Native Plants: All plants on the following list shall be inventoried and documented on the salvage report provided with the Native Plant Salvage Plan and the Landscape Plan. The listed plants may be planted anywhere.”[vii] [source: Town of Cave Creek Technical Design Guidelines – Landscaping, Exhibit 1, pg. 71.] (Note to readers: the list of plants is not provided in this article.)
REASON #22: “The purpose of this Section is to provide guidance as to the requirements for landscaping and re-vegetation of single-residence development within the TOCC. Per the TOCC Zoning Ordinance the following minimum requirements shall apply to all projects located within the TOCC Desert Rural and Single-Residence zones:” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 3.1, pg. 20] (Note to readers: this list can be found on pg. 20 of cited source.)
REASON #23: “Notice of Intent to Clear Land: Submit a copy of the stamped Arizona Department of Agriculture “Notice of Intent to Clear Land” form. To obtain the form contact the Native Plant Section of the Arizona Department of Agriculture @ 602-364-0935, or visit their website @ www.azda.gov/ESD/nativeplants.htm.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 9.1.4., pg 42]
REASON #24: “Prior to the issuance of any permits for site work, the applicant shall provide Landscape Financial Security Agreements in a form acceptable to the Town, so as to ensure completion of all work necessary to restore the disturbed, or damaged native habitat.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 16.1, pg. 65]
REASON #25: “All Landscape Financial Security Agreements shall be reviewed and recommended by the Town Arborist, Town Engineer and Town Attorney, prior to submittal to the TOCC Town Council for final approval.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 16.1(6), pg. 65]
REASON #26: “National Pollution Discharge Elimination System (NPDES) – Any construction activity resulting in the disturbance of one or more acres of ground will require a permit under the NPDES Program. The Arizona Department of Environmental Quality (ADEQ) has obtained a Construction General Permit (AZG2003-001) to cover all construction activities within the State (except on Indian Lands). To obtain authorization for discharges of stormwater associated with construction activity, the operator/owner must comply with all the requirements of the General Permit and submit a Notice of Intent (NOI) in accordance with Part III of the General Permit to ADEQ. The operator/owner must also develop and implement a Storm Water Pollution Prevention Plan (SWPPP) that satisfies the conditions of the permit. If the project site is located within one-quarter mile (¼ mi.) of unique or impaired water, the SWPPP must be submitted with your NOI.” [source: Town of Cave Creek Technical Design Guidelines – Grading and Drainage, § 2.2.3., pg 12] (Note to readers: The Lehman property -- all 72± acres -- is less than one-quarter (1/4 mi.) from the creek. Lehman parcel #1 consists of 16± acres.)
REASON #27: “The preparation of a Grading & Drainage Plan along with a Drainage Report that complies with the regulations contained within the Town of Cave Creek Technical Design Guideline Number 1 – Grading & Drainage and that specifically addresses public safety and potential property damage is required.” [source: Ordinance Chapter 6, § 6.2(B), pg. 1]
REASON #28: “The Grading & Drainage Plan and Drainage Report shall be prepared by an Arizona Registered Civil Engineer and approved by the Town Engineer prior to the issuance of the required Zoning Clearance and Building Permit.” [source: Ordinance Chapter 6, § 6.2(C), pg. 1]
REASON #29: “An approved Dust Control Permit, issued by the Maricopa County Department of Environmental Quality (ADEQ), shall be obtained prior to the issuance of the required Zoning Clearance and Building Permit by the Town.” [source: Ordinance, Chapter 6, § 6.2.(D), pg. 1]
REASON #30: “COUNTY DUST CONTROL PERMIT. A permit issued by Maricopa County evidencing that a dust generating operation has a satisfactory dust control plan in place approved by the Maricopa County Air Quality Department.” [source: Title IX, Chapter 92, § 92.21 “Definitions”]
PROVISIONS PROTECTING SPECIFIC CONCERNS EXPRESSED BY CITIZENS.
Water concerns:
Regardless of whether it’s called a golf course, a 2-acre grass field with or without putting greens, putting/chipping greens, or landscaping, Tom Lehman stated that using synthetic turf would be too expensive. However, the maintenance of grass requires water being drawn from the same aquifer used by residents for their home and personal care use, i.e., domestic purposes.
A review of the Arizona Department of Water Resources website lists a March 12, 2014 filing of a “Request to Change Well Information”. The filing states the well is located on Assessor Parcel Number 202-19-019Q, is registered to “Asset Xchange Co.” and is now owned by the Thomas E. and Melissa A. Lehman Revocable Trust of 1993.
When the well was approved for installation by the Arizona Department of Water Resources (ADWR) in 1988, it was approved for use as an exempt well for domestic purposes.[viii]
REASON #31: “2. An exempt well means a well having a pump with a maximum capacity of not more than thirty-five (35) gallons per minute and may include the application of water to less than two (2) acres of land to produce plants or parts of plants for sale, human consumption or for use as feed for livestock, range livestock or poultry.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well registration number 55-520844 for APN 202-19-019Q, ADWR website]
REASON #32: “3. Domestic purposes means a well which withdraws groundwater for uses related to the supply, service and activities of households and private residences. Stock-watering means the watering of livestock, range livestock or poultry.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well registration number 55-520844 for APN 202-19-019Q, ADWR website]
The 1988 ADWR well use approval is for domestic use only, i.e., for uses related to the supply, service and activities of households and private residences. Tom & Melissa Lehman do not reside on the property. The golf course/2-acre grass field on Assessor Parcel Number 211-01-034 will be used by their Lehman Family Foundation when sponsoring their fund raising events; some events with an attendance of 1,000 people, and perhaps additional use of the property would be by various other groups and organizations.
REASON #33: The 1988 ADWR permit is for domestic use only and does not authorize water use for a golf course or 2-acre grass field for commercial/business fund raising activity on Assessor Parcel Number 211-01-034 (Lehman parcel #1.) [source: ADWR website]
REASON #34: “4. If withdrawals of groundwater for other than domestic or stock-watering are intended, a different Department form entitled Notice of Intention to Drill an exempt well for Non-Domestic purposes must be filed.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well registration number 55-520844, ADWR website]
REASON #35: QUESTION: Was the ADWR well registration assigned to Assessor Parcel No. 202-19-019Q amended by the ADWR to allow expanded use and well water service to the 16± additional acres of the Lehman property identified as Assessor Parcel Number 211-01-034 for the Lehman’s business/commercial fund raising purposes?
REASON #36: “5. Only one exempt well may be drilled or used to serve the same use at the same location.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well permit number 55-520844, ADWR website]
Prior to the August 29th neighborhood meeting Tom Lehman’s contractor referred to the construction work occurring on Lehman parcel #1 as a golf course.
REASON #37: “The General Plan expressly prohibits golf courses.” [source: Luke Kautzman (Town Planning Department) email dated 8/25/15]
REASON #38: The planting of grass whether for a golf course or a 2-acre grass field -- with or without putting holes -- is prohibited in all DR zones.[ix] The only grass allowed in DR zones is bear grass (Nolina Micocarpa) and deer grass (Muhlenbergia rigens). [source: Town of Cave Creek Technical Design Guidelines – Landscaping, Exhibit 4, #10, pg. 76]. The allowed Bear grass and Deer grass are not acceptable grasses for use on golf courses, putting/chipping greens, or grass playing fields.
Bermuda grass, categorized as a weed, is the most commonly used “grass” for golf courses/putting/chipping greens. Bermuda grass is a prohibited weed (grass) within the town of Cave Creek.
REASON #39: “The following weeds shall be removed from all areas within all zones of the TOCC: Bermudagrass (Cynodon dactylon)” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 18.4, pg. 68.] (Complete list on cited page.)
As discussed and previously cited, if a project site is located within one-quarter mile (¼ mi.) of a unique or impaired water source, the owner of the property must develop and implement a Storm Water Pollution Prevention Plan (SWPPP) in addition to any other permit requirements. The entire 72± acres of Lehman’s property is situated less than a quarter (¼) of a mile from the creek.
REASON #40: No copy of a SWPPP prepared by Tom Lehman was submitted by the town in response to the August 24, 2015 Freedom of Information Act request.
Fertilizers and the creek.
The use of fertilizers to maintain the golf course/grass field on the Lehman property located less than a quarter (1/4) mile from the creek endangers the riparian habitat of Cave Creek’s Ecosystem along the creek.
REASON #41: On October 5, 2009 the town passed Resolution R-2009-18 recognizing the creek as being a Statewide Important Bird Area providing significant upland Sonoran Desert and riparian habitats for birds and declared the creek as a Cave Creek Ecosystem.
REASON #42: “1. That the Town of Cave Creek hereby approves the designation of the Cave Creek floodplain starting from the Spur Cross Ranch Conservation Area continuing south to the Town of Cave Creek Water Ranch, as identified in Exhibit A.” [source: Town of Cave Creek Resolution No. R2009-18, A Resolution of the Mayor and Town Council of the Town of Cave Creek, Arizona Designating a Cave Creek Ecosystem Important Bird Area.]
REASON #43: “[T]he Town believes that the watercourse known as Cave Creek which flows through Annexation Area 96-1 provides a significant natural resource that should be preserved and protected.”[x] [source: Area 96-1 Annexation Agreement, “Recitals” paragraph “I”]
REASON #44: “The property owner of a lot or parcel which is the subject of any proposed grading, grubbing, excavation, embankment, or fill shall be responsible for the following: L. The protection and maintenance of the flow of existing waterways as provide for within the Town of Cave Creek Technical Design Guideline Number 1 – Grading and Drainage.” [source: Ordinance Chapter 6, § 6.2.(L), pgs. 1,2.
REASON #45: “The property owner of a lot or parcel which is the subject of any proposed grading, grubbing, excavation, embankment, or fill shall be responsible for the following: I. The approval of precautionary measures as outlined within the Town of Cave Creek Technical Design Guideline Number 1 – Grading & Drainage so as to protect adjacent watercourses and public or private property from damage by water erosion, flooding or the accumulation of mud or debris originating from the site by the Town Engineer. Precautionary measures shall include provisions for properly designed sediment control facilities so that downstream properties are not affected by upstream erosion. [source: Ordinance Chapter 6, § 6.2.(I), pg. 2]
Fund Raising Activities on the Lehman property via a Special Use Permit:
REASON #46: “A. Special Uses are those uses which are generally compatible with the land uses permitted by right in a zone, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location within a given zone. [source: Ordinance Chapter 13, § 13.0(A), pg. 1]
REASON #47: “B. Only those uses that are listed as Special Uses in a zone, as set forth in this Ordinance, shall be allowed. A Special Use shall not be established until the associated Special Use and Site Plan have been approved in accordance with the provisions as set forth within this Ordinance.” [source: Ordinance Chapter 13, § 13.0(B), pg. 1]
REASON #48: “A. The Town Council has the authority to impose conditions and safeguards necessary to protect and enhance the health, safety and welfare of the surrounding area. The authorization of a Special Use shall be permitted only after review and recommendation by the Planning Commission and review and approval by the Town Council and only if the applicant demonstrates: …(5.) That the proposed Special Use will be in conformance with the Town of Cave Creek General Plan, Zoning Ordinance and any other statutes, ordinances, codes or policies that may be applicable, and that the Special Use will support rather than interfere with the uses permitted outright in the zone in which it is located.” [source: Ordinance Chapter 13, § 13.2(A)(5), pgs. 2,3]
REASON #49: “Any use or occupation of a structure, parcel of land, or portion thereof, shall conform to the requirements of this Ordinance.” [source: Ordinance Chapter 1, § 1.4(B), pg 3]
REASON #50: “Prior to the approval, amending or denial of a Special Use, a public hearing shall be held by the Planning Commission. The Planning Commission's recommendations shall be forwarded to the Town Council for affirmation, amendment or reversal.” [source: Ordinance Chapter 13, § 13.1(D), pg. 2]
The Area 96-1 Annexation Agreement contains additional requirements for public hearings which are in addition to those required under Ordinance Chapter 13.
REASON #51: “In addition to any hearings required by law, the Town will conduct at least two (2) public hearings a minimum of fifteen (15) days apart on any proposed Future Town Actions. [source: Area 96-1 Annexation Agreement, “Agreement” § 4, paragraph 4.3.3. Notice of Future Town Actions.]
Fund Raising Activities on the Lehman property via a Special Events Permit:
REASON #52: “(A) A special event may be held on private property only if the property is located within a commercial zone or has an established primary commercial use.” [source: Town Code Title XI, Chapter 114, § 114.02.]
REASON #53: “SPECIAL EVENT. An organized event established for a period of time not to exceed four consecutive days and which is open to the public and takes place on: (1) Public right-of-way, public property; or (2) Private commercial property.” [source: Town Code, Title XI, Chapter 114, § 114.03.]
REASON #54: The allowable Special Events are: “Arts and Craft Festivals, Art Shows, Art Tours, Auctions, Carnivals, Concerts, Dances, Firework Displays, Flea Markets/Swap Meets, Horse Shows, Parades, Races, Rallies, Rodeos, Christmas Tree Sales Lots”. [source: Ordinance, Appendix “A” Glossary Terms and Definitions, pg. 20]
REASON #55: The Special Events allowed on private commercial property are: “Arts and Crafts shows; Farmers markets; Flea markets; Auctions; Carnivals; Concerts; Dances; Fireworks displays; Horse shows; Rodeos” [source: Town Code Title XI, Chapter 114, § 114.03(2)
ACCESS.
Though Tom and Melissa Lehman do not live on their property they do have vehicular access to their property – the same vehicular access route onto Spur Cross Road that was used by the prior owner for more than twenty (20) years. This access route is for residential use, but because of the topography, the Lehman’s require another access route to accommodate the attendees to their business/commercial fund raising activities. The route they have chosen is Honda Bow Road. In December, 2014 residents on Honda Bow Road were told by a town employee that an extension of Honda Bow Road to give the Lehman’s their requested access route via Honda Bow Road was a “done deal.” Tom and Melissa Lehman were also present.
The Ordinance requires that a Honda Bow Road extension must be extended for a minimum of twenty (20) feet onto the Lehman property. [source: Ordinance, Chapter 5, § 5.1(B)(1), pg. 1] Encroachment onto the Lehman property by the town to construct a public roadway improvement/extension will require a right-of-way. The Area 96-1 Annexation Agreement prohibits the town from acquiring the required right-of-way.
REASON # 56: “No Improvement of Honda Bow Alignment. During the term of this Agreement, the Town shall not plan, design, acquire right-of-way (by dedication, purchase or condemnation), or improve, whether independently or in concert with any other government, special district or private person or entity, a public roadway providing continuous, uninterrupted vehicular access on the alignment of Honda Bow Road between Spur Cross Road on the east and Cave Creek on the West. …” [source: Area 96-1 Annexation Agreement, “Agreement”, § 2.2.2.]
REASON #57: “[T]he town believes that the extension and improvement of Honda Bow Road west of Spur Cross Road is inconsistent with the desert/rural character of the Property and Annexation Area 96-1 generally.” [source: Area 96-1 Annexation Agreement, “Recitals” paragraph “J”.]
REASON #58: The town’s permit process was developed to ensure that the mayor, members of town council, town manager, and town staff make decisions that are not specific to any one person’s benefit: “E. This Ordinance is intended to benefit the public as a whole and not any specific person or class of persons. Any benefits and detriments to specific individuals or properties resulting from the implementation, administration and enforcement of this Ordinance are incidental to the overall benefit to the whole community.” [source: Ordinance Chapter 1, § 1.1(E), pg. 1]
REASON #59: “The issuance of a Zoning Clearance and Building Permit within any zone is required prior to the commencement of any grading or grubbing of any area within a lot or parcel.’ [source: Ordinance, Chapter 6, § 6.0, pg. 1]
REASON #60: ZONING CLEARANCE is the verification by the Zoning Administrator indicating that a proposed building, structure or use meets all the requirements of this ordinance.” [source: Ordinance, Appendix “A” Glossary Terms and Definitions.]
REASON #61: No evidence of a Zoning Clearance was submitted by the town in response to the August 24, 2015 FOIA request.
The issuance of permits, applicable plans and related requirements --- prior to the commencement of work --- is the responsibility of the Zoning Administrator. The intended use for the Lehman property – fund raising events --- is not allowed on residentially-zoned property.
REASON #62: The Zoning Administrator “[M]ay not make any changes in the uses permitted in any zoning classification or zone or make any changes in the terms of the Zoning Ordinance.” [source: Ordinance, Chapter 14, § 14.3(D)(1), pg. 7]
The Zoning Administrator took no action to stop the grading and grubbing on Lehman parcel #1 for lack of permits, plans, etc..
REASON #63: The Zoning Administrator’s job is to: “To assure that any development or use proceed only in accordance with the terms, conditions, or requirements imposed by the Town’s Board(s), Commission or Council.” [source: Ordinance, Chapter 14 § 14.3(C)(4)]
This article cites sixty-three (63) reasons which support requirements for permits, plans, etc., prior to commencement of any grading or grubbing. There have been zero reasons provided by the town addressing this permit issue. The mayor and town council members remain unresponsive to the concerns of town residents.
At the conclusion of the August 29th neighborhood meeting the residents decided it was necessary to consult legal counsel. This article is intended to help you decide the next course of action, if any, residents should pursue as we consider the Suggested Options outlined in Part 2 of “How Many Green$ Does It Take To Make A Golf Course?”
Notice of the date of the next neighborhood meeting to discuss the Suggested Options will be in your e-mail in-boxes next week. It’s very important that you stay involved.
Janelle Smith-Haff
janelle@cavecreektownhallblog.com
October 11, 2015
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Endnotes:
[i] “How Many Green$ Does It Take To Make A Golf Course – Part 1.” and “How Many Green$ Does It Take To Make A Golf Course – Suggested Options: Part 2” is posted at www.cavectreektownhallblog.com under the topic “Golf Course”.
[ii] The provisions protecting residential zoning and private property rights contained in the Area 96-1 Annexation Agreement are too numerous to print in this article. For further information about these provisions visit www.cavecreektownhallblog.com, topic “Area 96-1 Annexation Agmt.”
[iii] DISTURBED AREA is that area of natural ground, including the area occupied by the lot coverage, that has been or is proposed to be altered through grading, cut and fill, removal of natural vegetation, placement of material, trenching or by any means that causes a change in the undisturbed natural surface of the land or natural vegetation. [source: Ordinance, Glossary Terms and Definitions, Appendix “A”]
[iv] GRADING is any excavating or filling to level land or create a slope or combination thereof. GRUBBING is the clearing of a majority of the vegetative matter within a certain area. [source: Ordinance, Glossary Terms and Definitions, Appendix “A”]
[v] All Freedom of Information Act requests are received by the Town Clerk who distributes the requests to the appropriate town department(s).
[vi] “DEVELOPMENT 1: The physical extension and/or construction of urban land uses. Development activities include: subdivision of land; construction or alteration of structures, roads, utilities, and other facilities; grading; and clearing of natural vegetative cover (with the exception of agricultural activities). Routine repair and maintenance activities are exempted. DEVELOPMENT 2: Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, fencing, excavating or drilling. [source: Town of Cave Creek Technical Guidelines – Landscaping, § 1.4]
[vii] For a complete listing of protected native plant see Town of Cave Creek Technical Design Guidelines – Landscaping starting at pg. 71.
[viii] There are three (3) ADWR well registration numbers: 55-520844, 55-520845, 55-806286, all have the same Well File Number, A(64)8dcc. All filings contain the same data. There are three (3) Change of Well Ownership forms, all listing Assessor Parcel No. 202-19-019Q. [source: ADWR website]
[ix]This provision contain an allowable exception re grass but this exception applies only to the “private area” of the single residence (SR) zoning districts. The Lehman parcel is in a DR zoning district.
[x] The Area 96-1 Annexation Agreement was signed in 1997. Resolution 2009-18 was signed in 2009.
Many of the cited provisions expressly mandate the town’s compliance with those guidelines which have been developed for protecting residential zoning, private property rights, permits, etc.. In other cited provisions, the requirement for this compliance is guided by the following two provisions:
“C. Where, in any specific case, different sections of this Ordinance or any other Federal, State, County or Town ordinance or code specify different requirements, the more restrictive shall govern.” [source: Ordinance, Chapter 1, § 1.C] And,
“D. Where there is conflict between a general requirement and a specific requirement, the specific requirement shall apply.” [source: Ordinance, Chapter 1, § 1.D.]
This research compiled 63 reasons why the town requires permit application(s) and approval(s). There are numerous other provisions which are not cited. The town’s permit process was developed to ensure that the mayor, members of town council, town manager, and town staff make decisions that are not specific to any one person’s benefit: “E. This Ordinance is intended to benefit the public as a whole and not any specific person or class of persons. Any benefits and detriments to specific individuals or properties resulting from the implementation, administration and enforcement of this Ordinance are incidental to the overall benefit to the whole community.” [source: Ordinance Chapter 1, § 1.1(E), page 1.
PRIVATE PROPERTY RIGHTS AS A RIGHT.
REASON #1: “A. The purpose of this Ordinance is to: “4. Protect private property rights”. [source: Ordinance, Chapter 1, §1.1(4), pg. 1]
REASON #2: “A. Purpose: The regulations in this Chapter qualify or supplement the specific zone regulations related to private property appearing elsewhere within this Ordinance.” [source: Ordinance, Chapter 5, § 5.0(A), pg. 1]
REASON #3: The Area 96-1 Annexation Agreement contractually mandates the town to protect the low density residential zoning and private property rights for those properties in Area 96-1 until the Agreement expires in 2022. [source: Area 96-1 Annexation Agreement. [ii]] Because the Area 96-1 Agreement prohibits the town from widening Spur Cross Road and prohibits the town from establishing an east-west crossing over the creek, it also protects the residential and private property rights of homeowners living along Spur Cross Road as well as properties north of the town core. Further, the Area 96-1 Annexation Agreement protects the zoning density and rural character of the properties west of the creek as an east-west creek crossing would establish a new travel corridor in that area for all traffic wishing to by-pass Carefree Highway.
RESIDENTIAL ZONING PROTECTIONS THAT SERVE TO PROHIBIT BUSINESS/COMMERCIAL ACTIVITY.
REASON #4: The residential zones in Cave Creek are classified as Desert Rural (DR) Zones, Single Residence (R) Zones, and Multiple Residence (MR) Zones. [source: Ordinance Chapter 2, §2.0(A), pg. 1]
REASON #5: “A. Purpose: The purpose of the Desert Rural (DR) zone is to prevent urban and desert land use conflicts by protecting scenic vistas, protecting natural habitats and natural features such as hillsides and washes, and to ensure that residential development is harmonious and sensitive to the natural environment.” [source: Ordinance, Chapter 2, § 2.1(A), pg. 1]
REASON #6: “(C). The following uses are restricted to the Desert Rural (DR) residential zones: (1) Detached accessory living quarters, (2) Corrals, (3) Barns, (4) Horse shades, (5) Other private ranch uses incidental to the principal residential use.” [source: Ordinance Chapter 2, §2.4.A.(1)(C). pg. 9]
REASON #7: “B. Any use or occupation of a structure, parcel of land, or portion thereof, shall conform to the requirements of this Ordinance.” [source: Ordinance, Chapter 1, §1.4.B., pg. 3]
REASON #8: “Development of residential property would be low density in nature and type.” [source: The General Plan.]
PERMIT(S), PLAN(S), AND PERMISSION.
The town, Tom Lehman and his contractor have referred to the disturbed area[iii] on Lehman parcel #1 (Assessor Parcel Number 211-01-034) as a golf course, a 2-acre grass field – with or without putting holes, putting/chipping greens, and even a landscaping project. Regardless of how it is referred to the undisputed fact is that the work involved grading and grubbing and therefore, at a minimum, a site plan, a zoning clearance, and permit application(s) and approval(s) were required prior to any grading or grubbing.
REASON #9: “The issuance of a Zoning Clearance and Building Permit within any zone is required prior to the commencement of any grading and/or grubbing of any area within a lot or parcel.”[iv] [source: Ordinance Chapter 6, § 6.0., pg. 1]
REASON #10: “No grading, grubbing or permanent improvement work shall be commenced until all engineering plans and required drainage reports have been approved by the Town Engineer or consultant as provided by the Town Council. A Building Permit shall be required and conspicuously posted on the property a minimum of ninety-six hours (96 hrs.) prior to the commencement of any grading or grubbing. No temporary or permanent structure shall be constructed without first obtaining a Building Permit.” [source: Town of Cave Creek Technical Design Guidelines – Grading & Drainage § 2.2.1., pg. 11]
REASON #11: “E. No Building Permit or other permit required by this Ordinance shall be issued unless a Site Plan and Zoning Clearance have been submitted for review and approved by the Town.” [source: Ordinance Chapter 1, § 1.4(E), pg. 3]
On August 24, 2015, a Freedom of Information Act (FOIA) request was submitted to the town relative to the grading and grubbing work occurring on Lehman parcel #1. The FOIA was forwarded to the Planning Department by the Town Clerk.[v] The FOIA requested: “copy(s) of all pending or completed permit application(s), copy(s) of any and all site inspections conducted by any town employee, copy(s) or any and all permit/inspection approvals, along with all correspondence, notes, and letters relative to the following four (4) Lehman parcels:” (the Lehman’s four Assessor Parcel Numbers were listed in the FOIA.)
REASON #12: The town’s response to the FOIA was that no permits had been issued to Tom Lehman for the grading and grubbing.
On or about August 23, 2015 a formal complaint was filed with the town. The formal complaint requested that the town instruct Tom Lehman to cease and desist all grading and grubbing until the required permit approvals had been obtained.
REASON #13: “D. When any building or parcel of land regulated by this Ordinance is being used contrary to this Ordinance, the Zoning Administrator shall order such use discontinued and the structure, parcel of land, or portion thereof vacated by written notice served on any person causing such use to be continued. Such person shall discontinue the use within the time prescribed by the Zoning Administrator after receipt of such notice. [source: Ordinance Chapter 1, § 1.7(D), pg. 5]
Town Manager Peter Jankowski passed the formal complaint to Ian Cordwell in the Planning Department. To date there still has been no response to the citizen’s formal complaint, and the town never instructed Tom Lehman to stop the grading and grubbing on parcel #1.
The Lehman property consists of four contiguous parcels totaling 72± acres. To view the Lehman parcels, drive north on Spur Cross Road to Morning Star Road. Turn left onto Morning Star and drive to the top of the hill at 54th Street. Look north and you’ll see the property. It’s one parcel in from the intersection of Morning Star Road and Old Stage Road, on the north side. According to the Maricopa County Assessor’s map Lehman parcel #1 is residentially zoned DR-70 and consists of 16± acres; parcel #2 is residentially zoned DR-190 and consists of 28± acres; parcel #3 is residentially zoned DR-190 and consists of 24± acres; and parcel #4 is residentially zoned DR-190 and consists of 5± acres. The four parcels are located in Area 96-1.
The grading and grubbing occurring on Lehman parcel #1 was also referred to as landscaping. Landscaping permit(s) are in addition to the grading and grubbing permit(s) required in Ordinance, Chapter 6. Separate permits are required for work involving landscaping projects.
REASON #14: “1. Separate Permits are required for all salvage work as well as outdoor low voltage lighting and landscape work. The cost of permits will be determined at time of permit issuance.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 2.10.1, pg. 15]
REASON #15: “Landscape Plan: A Landscape Plan shall be required. See Section 13 - Landscape Plans of this Technical Design Guideline for Landscape Plan requirements.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 3.4.1, pg. 21]
REASON #16: “1. All Landscape Plans shall be submitted to the TOCC Building Department for review and approval processing. All associated plan review fees shall be paid at the time of plan submittal. 2. No Landscape Plans shall be accepted by the TOCC for review by the Town Arborist and/or Zoning Administrator unless accompanied by copy of the accepted Native Plant Inventory and Salvage Plans. Please refer to Section 8 – Native Plant Preservation and Salvage of this Technical Design Guideline for detailed plan requirements. 3. No permits for any landscape construction shall be issued until the owner or developer has provided all the necessary PUE’s and public ROW’s. The instruments of dedication shall be approved and submitted to the TOCC for recording at the Maricopa County Recorder’s Office. 4. All landscape construction documents used for Building Permit purposes shall be prepared by a TOCC approved landscape professional or State of Arizona Registered Landscape Architect.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 15.1 – Submittal Requirements, pg. 64]
REASON #17: “Minimum Landscape Plan Submittal Requirements: At a minimum the Landscape Plan shall contain and/or comply with the following requirements: [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 13.1.1.] (Note to reader: the list of these requirements can be found on pg. 60 of cited source.)
REASON #18: “Preservation and Salvage of Native Plants: The preservation and salvage of native plants as contained within Exhibit 1, of this Technical Design Guideline shall be required as part of any development.”[vi] [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 8.1.1, pg. 36]
REASON #19: “Native Plant Inventory and Salvage Plan: A Native Plant Inventory and Salvage Plan shall be required. See Section 8 – Native Plant Preservation and Salvage of this Technical Design Guideline for Native Plant Inventory and Salvage Plan requirements.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 3.4.2, pg. 21]
REASON #20: “Native Plant Inventory and Salvage Plan: A Native Plant Inventory and Salvage Plan shall be submitted to the TOCC for review and approval as a part of Landscape Plan submittal package. Since specific requirements differ from one land use to the next, be sure to reference the appropriate Section of this Technical Design Guideline when preparing all required plans.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 8.1.3, pg. 37]
REASON #21: “Protected Native Plants: All plants on the following list shall be inventoried and documented on the salvage report provided with the Native Plant Salvage Plan and the Landscape Plan. The listed plants may be planted anywhere.”[vii] [source: Town of Cave Creek Technical Design Guidelines – Landscaping, Exhibit 1, pg. 71.] (Note to readers: the list of plants is not provided in this article.)
REASON #22: “The purpose of this Section is to provide guidance as to the requirements for landscaping and re-vegetation of single-residence development within the TOCC. Per the TOCC Zoning Ordinance the following minimum requirements shall apply to all projects located within the TOCC Desert Rural and Single-Residence zones:” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 3.1, pg. 20] (Note to readers: this list can be found on pg. 20 of cited source.)
REASON #23: “Notice of Intent to Clear Land: Submit a copy of the stamped Arizona Department of Agriculture “Notice of Intent to Clear Land” form. To obtain the form contact the Native Plant Section of the Arizona Department of Agriculture @ 602-364-0935, or visit their website @ www.azda.gov/ESD/nativeplants.htm.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 9.1.4., pg 42]
REASON #24: “Prior to the issuance of any permits for site work, the applicant shall provide Landscape Financial Security Agreements in a form acceptable to the Town, so as to ensure completion of all work necessary to restore the disturbed, or damaged native habitat.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 16.1, pg. 65]
REASON #25: “All Landscape Financial Security Agreements shall be reviewed and recommended by the Town Arborist, Town Engineer and Town Attorney, prior to submittal to the TOCC Town Council for final approval.” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 16.1(6), pg. 65]
REASON #26: “National Pollution Discharge Elimination System (NPDES) – Any construction activity resulting in the disturbance of one or more acres of ground will require a permit under the NPDES Program. The Arizona Department of Environmental Quality (ADEQ) has obtained a Construction General Permit (AZG2003-001) to cover all construction activities within the State (except on Indian Lands). To obtain authorization for discharges of stormwater associated with construction activity, the operator/owner must comply with all the requirements of the General Permit and submit a Notice of Intent (NOI) in accordance with Part III of the General Permit to ADEQ. The operator/owner must also develop and implement a Storm Water Pollution Prevention Plan (SWPPP) that satisfies the conditions of the permit. If the project site is located within one-quarter mile (¼ mi.) of unique or impaired water, the SWPPP must be submitted with your NOI.” [source: Town of Cave Creek Technical Design Guidelines – Grading and Drainage, § 2.2.3., pg 12] (Note to readers: The Lehman property -- all 72± acres -- is less than one-quarter (1/4 mi.) from the creek. Lehman parcel #1 consists of 16± acres.)
REASON #27: “The preparation of a Grading & Drainage Plan along with a Drainage Report that complies with the regulations contained within the Town of Cave Creek Technical Design Guideline Number 1 – Grading & Drainage and that specifically addresses public safety and potential property damage is required.” [source: Ordinance Chapter 6, § 6.2(B), pg. 1]
REASON #28: “The Grading & Drainage Plan and Drainage Report shall be prepared by an Arizona Registered Civil Engineer and approved by the Town Engineer prior to the issuance of the required Zoning Clearance and Building Permit.” [source: Ordinance Chapter 6, § 6.2(C), pg. 1]
REASON #29: “An approved Dust Control Permit, issued by the Maricopa County Department of Environmental Quality (ADEQ), shall be obtained prior to the issuance of the required Zoning Clearance and Building Permit by the Town.” [source: Ordinance, Chapter 6, § 6.2.(D), pg. 1]
REASON #30: “COUNTY DUST CONTROL PERMIT. A permit issued by Maricopa County evidencing that a dust generating operation has a satisfactory dust control plan in place approved by the Maricopa County Air Quality Department.” [source: Title IX, Chapter 92, § 92.21 “Definitions”]
PROVISIONS PROTECTING SPECIFIC CONCERNS EXPRESSED BY CITIZENS.
Water concerns:
Regardless of whether it’s called a golf course, a 2-acre grass field with or without putting greens, putting/chipping greens, or landscaping, Tom Lehman stated that using synthetic turf would be too expensive. However, the maintenance of grass requires water being drawn from the same aquifer used by residents for their home and personal care use, i.e., domestic purposes.
A review of the Arizona Department of Water Resources website lists a March 12, 2014 filing of a “Request to Change Well Information”. The filing states the well is located on Assessor Parcel Number 202-19-019Q, is registered to “Asset Xchange Co.” and is now owned by the Thomas E. and Melissa A. Lehman Revocable Trust of 1993.
When the well was approved for installation by the Arizona Department of Water Resources (ADWR) in 1988, it was approved for use as an exempt well for domestic purposes.[viii]
REASON #31: “2. An exempt well means a well having a pump with a maximum capacity of not more than thirty-five (35) gallons per minute and may include the application of water to less than two (2) acres of land to produce plants or parts of plants for sale, human consumption or for use as feed for livestock, range livestock or poultry.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well registration number 55-520844 for APN 202-19-019Q, ADWR website]
REASON #32: “3. Domestic purposes means a well which withdraws groundwater for uses related to the supply, service and activities of households and private residences. Stock-watering means the watering of livestock, range livestock or poultry.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well registration number 55-520844 for APN 202-19-019Q, ADWR website]
The 1988 ADWR well use approval is for domestic use only, i.e., for uses related to the supply, service and activities of households and private residences. Tom & Melissa Lehman do not reside on the property. The golf course/2-acre grass field on Assessor Parcel Number 211-01-034 will be used by their Lehman Family Foundation when sponsoring their fund raising events; some events with an attendance of 1,000 people, and perhaps additional use of the property would be by various other groups and organizations.
REASON #33: The 1988 ADWR permit is for domestic use only and does not authorize water use for a golf course or 2-acre grass field for commercial/business fund raising activity on Assessor Parcel Number 211-01-034 (Lehman parcel #1.) [source: ADWR website]
REASON #34: “4. If withdrawals of groundwater for other than domestic or stock-watering are intended, a different Department form entitled Notice of Intention to Drill an exempt well for Non-Domestic purposes must be filed.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well registration number 55-520844, ADWR website]
REASON #35: QUESTION: Was the ADWR well registration assigned to Assessor Parcel No. 202-19-019Q amended by the ADWR to allow expanded use and well water service to the 16± additional acres of the Lehman property identified as Assessor Parcel Number 211-01-034 for the Lehman’s business/commercial fund raising purposes?
REASON #36: “5. Only one exempt well may be drilled or used to serve the same use at the same location.” [source: “Specific Instructions, Limitations and Conditions” as assigned to ADWR well permit number 55-520844, ADWR website]
Prior to the August 29th neighborhood meeting Tom Lehman’s contractor referred to the construction work occurring on Lehman parcel #1 as a golf course.
REASON #37: “The General Plan expressly prohibits golf courses.” [source: Luke Kautzman (Town Planning Department) email dated 8/25/15]
REASON #38: The planting of grass whether for a golf course or a 2-acre grass field -- with or without putting holes -- is prohibited in all DR zones.[ix] The only grass allowed in DR zones is bear grass (Nolina Micocarpa) and deer grass (Muhlenbergia rigens). [source: Town of Cave Creek Technical Design Guidelines – Landscaping, Exhibit 4, #10, pg. 76]. The allowed Bear grass and Deer grass are not acceptable grasses for use on golf courses, putting/chipping greens, or grass playing fields.
Bermuda grass, categorized as a weed, is the most commonly used “grass” for golf courses/putting/chipping greens. Bermuda grass is a prohibited weed (grass) within the town of Cave Creek.
REASON #39: “The following weeds shall be removed from all areas within all zones of the TOCC: Bermudagrass (Cynodon dactylon)” [source: Town of Cave Creek Technical Design Guidelines – Landscaping, § 18.4, pg. 68.] (Complete list on cited page.)
As discussed and previously cited, if a project site is located within one-quarter mile (¼ mi.) of a unique or impaired water source, the owner of the property must develop and implement a Storm Water Pollution Prevention Plan (SWPPP) in addition to any other permit requirements. The entire 72± acres of Lehman’s property is situated less than a quarter (¼) of a mile from the creek.
REASON #40: No copy of a SWPPP prepared by Tom Lehman was submitted by the town in response to the August 24, 2015 Freedom of Information Act request.
Fertilizers and the creek.
The use of fertilizers to maintain the golf course/grass field on the Lehman property located less than a quarter (1/4) mile from the creek endangers the riparian habitat of Cave Creek’s Ecosystem along the creek.
REASON #41: On October 5, 2009 the town passed Resolution R-2009-18 recognizing the creek as being a Statewide Important Bird Area providing significant upland Sonoran Desert and riparian habitats for birds and declared the creek as a Cave Creek Ecosystem.
REASON #42: “1. That the Town of Cave Creek hereby approves the designation of the Cave Creek floodplain starting from the Spur Cross Ranch Conservation Area continuing south to the Town of Cave Creek Water Ranch, as identified in Exhibit A.” [source: Town of Cave Creek Resolution No. R2009-18, A Resolution of the Mayor and Town Council of the Town of Cave Creek, Arizona Designating a Cave Creek Ecosystem Important Bird Area.]
REASON #43: “[T]he Town believes that the watercourse known as Cave Creek which flows through Annexation Area 96-1 provides a significant natural resource that should be preserved and protected.”[x] [source: Area 96-1 Annexation Agreement, “Recitals” paragraph “I”]
REASON #44: “The property owner of a lot or parcel which is the subject of any proposed grading, grubbing, excavation, embankment, or fill shall be responsible for the following: L. The protection and maintenance of the flow of existing waterways as provide for within the Town of Cave Creek Technical Design Guideline Number 1 – Grading and Drainage.” [source: Ordinance Chapter 6, § 6.2.(L), pgs. 1,2.
REASON #45: “The property owner of a lot or parcel which is the subject of any proposed grading, grubbing, excavation, embankment, or fill shall be responsible for the following: I. The approval of precautionary measures as outlined within the Town of Cave Creek Technical Design Guideline Number 1 – Grading & Drainage so as to protect adjacent watercourses and public or private property from damage by water erosion, flooding or the accumulation of mud or debris originating from the site by the Town Engineer. Precautionary measures shall include provisions for properly designed sediment control facilities so that downstream properties are not affected by upstream erosion. [source: Ordinance Chapter 6, § 6.2.(I), pg. 2]
Fund Raising Activities on the Lehman property via a Special Use Permit:
REASON #46: “A. Special Uses are those uses which are generally compatible with the land uses permitted by right in a zone, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location within a given zone. [source: Ordinance Chapter 13, § 13.0(A), pg. 1]
REASON #47: “B. Only those uses that are listed as Special Uses in a zone, as set forth in this Ordinance, shall be allowed. A Special Use shall not be established until the associated Special Use and Site Plan have been approved in accordance with the provisions as set forth within this Ordinance.” [source: Ordinance Chapter 13, § 13.0(B), pg. 1]
REASON #48: “A. The Town Council has the authority to impose conditions and safeguards necessary to protect and enhance the health, safety and welfare of the surrounding area. The authorization of a Special Use shall be permitted only after review and recommendation by the Planning Commission and review and approval by the Town Council and only if the applicant demonstrates: …(5.) That the proposed Special Use will be in conformance with the Town of Cave Creek General Plan, Zoning Ordinance and any other statutes, ordinances, codes or policies that may be applicable, and that the Special Use will support rather than interfere with the uses permitted outright in the zone in which it is located.” [source: Ordinance Chapter 13, § 13.2(A)(5), pgs. 2,3]
REASON #49: “Any use or occupation of a structure, parcel of land, or portion thereof, shall conform to the requirements of this Ordinance.” [source: Ordinance Chapter 1, § 1.4(B), pg 3]
REASON #50: “Prior to the approval, amending or denial of a Special Use, a public hearing shall be held by the Planning Commission. The Planning Commission's recommendations shall be forwarded to the Town Council for affirmation, amendment or reversal.” [source: Ordinance Chapter 13, § 13.1(D), pg. 2]
The Area 96-1 Annexation Agreement contains additional requirements for public hearings which are in addition to those required under Ordinance Chapter 13.
REASON #51: “In addition to any hearings required by law, the Town will conduct at least two (2) public hearings a minimum of fifteen (15) days apart on any proposed Future Town Actions. [source: Area 96-1 Annexation Agreement, “Agreement” § 4, paragraph 4.3.3. Notice of Future Town Actions.]
Fund Raising Activities on the Lehman property via a Special Events Permit:
REASON #52: “(A) A special event may be held on private property only if the property is located within a commercial zone or has an established primary commercial use.” [source: Town Code Title XI, Chapter 114, § 114.02.]
REASON #53: “SPECIAL EVENT. An organized event established for a period of time not to exceed four consecutive days and which is open to the public and takes place on: (1) Public right-of-way, public property; or (2) Private commercial property.” [source: Town Code, Title XI, Chapter 114, § 114.03.]
REASON #54: The allowable Special Events are: “Arts and Craft Festivals, Art Shows, Art Tours, Auctions, Carnivals, Concerts, Dances, Firework Displays, Flea Markets/Swap Meets, Horse Shows, Parades, Races, Rallies, Rodeos, Christmas Tree Sales Lots”. [source: Ordinance, Appendix “A” Glossary Terms and Definitions, pg. 20]
REASON #55: The Special Events allowed on private commercial property are: “Arts and Crafts shows; Farmers markets; Flea markets; Auctions; Carnivals; Concerts; Dances; Fireworks displays; Horse shows; Rodeos” [source: Town Code Title XI, Chapter 114, § 114.03(2)
ACCESS.
Though Tom and Melissa Lehman do not live on their property they do have vehicular access to their property – the same vehicular access route onto Spur Cross Road that was used by the prior owner for more than twenty (20) years. This access route is for residential use, but because of the topography, the Lehman’s require another access route to accommodate the attendees to their business/commercial fund raising activities. The route they have chosen is Honda Bow Road. In December, 2014 residents on Honda Bow Road were told by a town employee that an extension of Honda Bow Road to give the Lehman’s their requested access route via Honda Bow Road was a “done deal.” Tom and Melissa Lehman were also present.
The Ordinance requires that a Honda Bow Road extension must be extended for a minimum of twenty (20) feet onto the Lehman property. [source: Ordinance, Chapter 5, § 5.1(B)(1), pg. 1] Encroachment onto the Lehman property by the town to construct a public roadway improvement/extension will require a right-of-way. The Area 96-1 Annexation Agreement prohibits the town from acquiring the required right-of-way.
REASON # 56: “No Improvement of Honda Bow Alignment. During the term of this Agreement, the Town shall not plan, design, acquire right-of-way (by dedication, purchase or condemnation), or improve, whether independently or in concert with any other government, special district or private person or entity, a public roadway providing continuous, uninterrupted vehicular access on the alignment of Honda Bow Road between Spur Cross Road on the east and Cave Creek on the West. …” [source: Area 96-1 Annexation Agreement, “Agreement”, § 2.2.2.]
REASON #57: “[T]he town believes that the extension and improvement of Honda Bow Road west of Spur Cross Road is inconsistent with the desert/rural character of the Property and Annexation Area 96-1 generally.” [source: Area 96-1 Annexation Agreement, “Recitals” paragraph “J”.]
REASON #58: The town’s permit process was developed to ensure that the mayor, members of town council, town manager, and town staff make decisions that are not specific to any one person’s benefit: “E. This Ordinance is intended to benefit the public as a whole and not any specific person or class of persons. Any benefits and detriments to specific individuals or properties resulting from the implementation, administration and enforcement of this Ordinance are incidental to the overall benefit to the whole community.” [source: Ordinance Chapter 1, § 1.1(E), pg. 1]
REASON #59: “The issuance of a Zoning Clearance and Building Permit within any zone is required prior to the commencement of any grading or grubbing of any area within a lot or parcel.’ [source: Ordinance, Chapter 6, § 6.0, pg. 1]
REASON #60: ZONING CLEARANCE is the verification by the Zoning Administrator indicating that a proposed building, structure or use meets all the requirements of this ordinance.” [source: Ordinance, Appendix “A” Glossary Terms and Definitions.]
REASON #61: No evidence of a Zoning Clearance was submitted by the town in response to the August 24, 2015 FOIA request.
The issuance of permits, applicable plans and related requirements --- prior to the commencement of work --- is the responsibility of the Zoning Administrator. The intended use for the Lehman property – fund raising events --- is not allowed on residentially-zoned property.
REASON #62: The Zoning Administrator “[M]ay not make any changes in the uses permitted in any zoning classification or zone or make any changes in the terms of the Zoning Ordinance.” [source: Ordinance, Chapter 14, § 14.3(D)(1), pg. 7]
The Zoning Administrator took no action to stop the grading and grubbing on Lehman parcel #1 for lack of permits, plans, etc..
REASON #63: The Zoning Administrator’s job is to: “To assure that any development or use proceed only in accordance with the terms, conditions, or requirements imposed by the Town’s Board(s), Commission or Council.” [source: Ordinance, Chapter 14 § 14.3(C)(4)]
This article cites sixty-three (63) reasons which support requirements for permits, plans, etc., prior to commencement of any grading or grubbing. There have been zero reasons provided by the town addressing this permit issue. The mayor and town council members remain unresponsive to the concerns of town residents.
At the conclusion of the August 29th neighborhood meeting the residents decided it was necessary to consult legal counsel. This article is intended to help you decide the next course of action, if any, residents should pursue as we consider the Suggested Options outlined in Part 2 of “How Many Green$ Does It Take To Make A Golf Course?”
Notice of the date of the next neighborhood meeting to discuss the Suggested Options will be in your e-mail in-boxes next week. It’s very important that you stay involved.
Janelle Smith-Haff
janelle@cavecreektownhallblog.com
October 11, 2015
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Endnotes:
[i] “How Many Green$ Does It Take To Make A Golf Course – Part 1.” and “How Many Green$ Does It Take To Make A Golf Course – Suggested Options: Part 2” is posted at www.cavectreektownhallblog.com under the topic “Golf Course”.
[ii] The provisions protecting residential zoning and private property rights contained in the Area 96-1 Annexation Agreement are too numerous to print in this article. For further information about these provisions visit www.cavecreektownhallblog.com, topic “Area 96-1 Annexation Agmt.”
[iii] DISTURBED AREA is that area of natural ground, including the area occupied by the lot coverage, that has been or is proposed to be altered through grading, cut and fill, removal of natural vegetation, placement of material, trenching or by any means that causes a change in the undisturbed natural surface of the land or natural vegetation. [source: Ordinance, Glossary Terms and Definitions, Appendix “A”]
[iv] GRADING is any excavating or filling to level land or create a slope or combination thereof. GRUBBING is the clearing of a majority of the vegetative matter within a certain area. [source: Ordinance, Glossary Terms and Definitions, Appendix “A”]
[v] All Freedom of Information Act requests are received by the Town Clerk who distributes the requests to the appropriate town department(s).
[vi] “DEVELOPMENT 1: The physical extension and/or construction of urban land uses. Development activities include: subdivision of land; construction or alteration of structures, roads, utilities, and other facilities; grading; and clearing of natural vegetative cover (with the exception of agricultural activities). Routine repair and maintenance activities are exempted. DEVELOPMENT 2: Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, fencing, excavating or drilling. [source: Town of Cave Creek Technical Guidelines – Landscaping, § 1.4]
[vii] For a complete listing of protected native plant see Town of Cave Creek Technical Design Guidelines – Landscaping starting at pg. 71.
[viii] There are three (3) ADWR well registration numbers: 55-520844, 55-520845, 55-806286, all have the same Well File Number, A(64)8dcc. All filings contain the same data. There are three (3) Change of Well Ownership forms, all listing Assessor Parcel No. 202-19-019Q. [source: ADWR website]
[ix]This provision contain an allowable exception re grass but this exception applies only to the “private area” of the single residence (SR) zoning districts. The Lehman parcel is in a DR zoning district.
[x] The Area 96-1 Annexation Agreement was signed in 1997. Resolution 2009-18 was signed in 2009.
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