As discussed in Part 1, a neighborhood meeting was held on August 29th to share information concerning the grading and grubbing work on Lehman parcel #1. The following are highlights of what is now known:
· The result of a Freedom Of Information Act request filed with the town established that no permit(s) were sought by Tom Lehman and no permit(s) were issued by the town for any grading or grubbing work on Lehman parcel #1.
· The town has still not responded to the formal complaint filed by a citizen on August 23.[i]
· The grading and grubbing on Lehman parcel #1 continues.
· At the 8/29 meeting Tom Lehman stated that he intends to hold/sponsor fund raising events on the property, and perhaps additional use of the property would be by various other groups and organizations.
· Fund raising events are prohibited on all residentially-zoned parcels in Cave Creek.[ii]
· When Tom Lehman was asked whether there intended to be one, two, or as many as three-hundred or more events on the property each year he would not commit.
· Tom Lehman stated that his Lehman Family Foundation would be sponsoring the fund raising events on the property, some events with an attendance of 1,000 people.
· There will be a 2-acre grass field on Lehman parcel #1.[iii] Tom Lehman stated that synthetic turf was too expensive.
· The 2-acre grass field will be watered using water from the same aquifer used by other residents.
· Tom & Melissa Lehman have obtained a Spur Cross Road address for Lehman parcel #3. There is no house located on parcel #3. None of the Lehman’s four parcels front onto Spur Cross Road.
· The Lehman’s do not live on the property, and Tom Lehman has stated they have no intention of living on the property for at least another 5 to 7 years.
· Since December, 2014, Tom and Melissa Lehman have been working with the town to gain an extension of Honda Bow Road onto their property. Any extension or improvement of Honda Bow Road violates the Area 96-1 Annexation Agreement.
· The Honda Bow Road extension being sought by the Lehman’s is not needed for any reason other than for their fund raising events and for future expansion of density on the Lehman property. The extension of Honda Bow Road is necessary only to accommodate the increased traffic of busses and other vehicles which will be created by attendees to the fund raising events. All traffic will initially travel on Spur Cross Road.
· Spur Cross Road, Morning Star Road, Fleming Springs Road and School House Road are designated to become four-lane roads under the 2015 General Plan drafted by the town’s Planning Department staff.
· Under the town’s Ordinances and Town Code, “Special Event” permit(s) must be approved by the mayor and town council.
· Under the town’s Ordinances and Town Code, “Special Use” permit(s) must be approved by the mayor and town council.
The next course of action by the town and Tom and Melissa Lehman will determine the direction for any litigation and the speed at which residents must respond with litigation.
Prior to holding/sponsoring any fund raising events on their property, an application for a Special Event permit must be filed with the town by the Lehman’s.[iv] Under the town’s Ordinances and Town Code the mayor and town council members are legally required to consider/approve every Special Event application that is filed. The consideration/approval of the Special Event application must occur during a Town Council meeting [v] Any deference of this legal obligation of the mayor and town council members to any member(s) of town staff will add one more cause of action for residents to claim in any litigation. Any approval of the Lehman’s Special Event application will add one more cause of action for residents to claim in any litigation.
At the conclusion of the 8/29 neighborhood meeting residents decided it was necessary to consult legal counsel. Part 2 of this series sets forth some suggested options to discuss with legal counsel. Please take time to read these suggested options and even develop some of your own. When residents return from their summer hiatus there will be another neighborhood meeting (late October or early November - date to be announced) to collectively discuss all suggested options. The preferred option(s) decided upon by residents at this meeting will then be discussed with legal counsel. After the meeting with legal counsel another neighborhood meeting will be held to share the advice received and to collectively decide how to proceed.[vi]
Suggested Option #1: Do nothing.
Suggested Option #2: Require the restoration to original condition or re-vegetation of Lehman parcel #1.[vii] Under the town’s ordinances, the town has the authority to require a property owner to restore or revegetate any unapproved or unacceptable property disturbance. To accomplish this suggested option a quorum of new members must be elected to the town council in 2016.
Suggested Option #3: Decide on a course of action but delay taking any action until a new town council is seated in 2016.
Suggested Option #4: Retain legal counsel and initiate litigation without waiting for the mayoral and council elections in 2016.
Suggested Option #5: Retain legal counsel but delay filing litigation until the issue involving any Special Event application is decided by the mayor and town council members. The caveat with this option rests with the known history that town staff – not the mayor and town council members – have been approving Special Event applications and issuing permits in violation of the Town Code. When consideration/approval of Special Event permit(s) is handled by town staff there is no public notice or hearing, leaving residents with no way of knowing that a Special Event permit for the Lehman’s fund raising activity was issued until the day of the Special Event.
Suggested Option #6: Include in any litigation a claim that the mayor and town council members are not entitled to personal immunity. The town has in place all the necessary ordinances, town code provisions, as well as the Area 96-1 Annexation Agreement which require permits and protects residential zoning. The violations of these provisions are the result of behaviors by the mayor and town council members. Additionally, under the Area 96-1 Annexation Agreement the town is contractually bound to defend the provisions of the Area 96-1 Annexation Agreement against any and all persons violating the Agreement, which in this instance is the mayor and town council members.
Suggested Option #7: Extend the expiration date of the Area 96-1 Annexation Agreement.[viii] This will require the election of a quorum on the 2016 council approving an extension. The caveat with this option is that even with an extension, diligent efforts by all residents will always be necessary to ensure that the preservation and protections under the Area 96-1 Annexation Agreement are not breached or violated by future mayors and town council members. The Area 96-1 Annexation Agreement prohibits the widening of Spur Cross Road.
Suggested Option #8: Vote. The largest voting block in Cave Creek lives north of the town core off of Spur Cross Road, School House Road and Fleming Springs Road -- that includes all the side roads and connecting roads and this is the area most at risk for commercial development. The majority of residents living within this voting block area did not vote during the recall election. If this voting history were to repeat itself, and the 2016 mayoral and council election did not result in a quorum (4 or more) of new council members, the suggested options requiring a quorum of new council members in 2016 may well have the effect of Suggested Option #1: doing nothing.
Suggested Option #9: Initiate a recall campaign.
Except for Suggested Option #1, these or other suggested options may be pursued alone or in concert with other suggested options.
Janelle Smith-Haff
9/21/2015
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 please use the "Comment" button.
[i] The formal complaint also contained a request for the town to issue a cease and desist of the grading and grubbing work.
[ii] Applicable ordinances and town code sections were cited as authority and appear in Part 1 of this series.
[iii] No grass is allowed in Cave Creek except for bear (Nolina Micocarpa) and deer grass (Muhlenbergia rigens)”per TOCC Technical Design Guidelines – Landscaping: Prohibited Plants, #10, at p. 76. Bear grass and deer grass are not suitable grasses for a golf course.
[iv] A discussion of the other legal requirements and prohibitions involving residential/commercial zoning and fund raising appear in Part 1 of this series.
[v] There exists evidence that, in violation of the town’s Ordinances and Town Code, members of town staff have been routinely approving Special Event applications and issuing permits without consideration/approval of the application by the mayor and town council members.
[vi]No emergency injunction was sought to stop the grading and grubbing on Lehman parcel #1 based on the claim by Tom Lehman’s contractor that the work would be completed in 2-3 weeks (from 8/29). It was estimated that it would take almost that long to retain counsel, bring counsel up to speed on the issue, prepare the legal documents, serve the legal documents, receive the town’s response to the legal documents, have a court hearing, and secure a judicial ruling --- and at any point the injunction effort could have been circumvented by the town “suddenly” issuing permits.
[vii]A Zoning Clearance and Building Permit is required prior to any grading or grubbing. (Ch. 6, Sec. 6.0). A Town-issued Building Permit is required prior to any landscape improvements. (Ch. 8, Sec. 8.4(A)). The town has issued no Building Permit or Zoning Clearance on Lehman parcel #1. To the maximum extent allowed by law fines shall be assessed for any salvage, grubbing or grading performed without first obtaining the required Building Permit. (Ch. 8, Sec. 8.4(B)). A Financial Assurance Agreement between applicant and town must be approved prior to the issuance of any Building Permit for any grading or grubbing within the town. (Ch. 8, Sec. 8.3(A)). The Financial Assurance Agreement shall provide that if the Building Permit expires or the grading/grubbing is not constructed in conformance with the Town approved Native Plant Inventory Plan and Landscape Plan, the funding provided within the Financial Assurance Agreement may be used by the Town for the restoration to original condition, or re-vegetation of any unapproved or unacceptable disturbance.
[viii] It is likely that the Area 96-1 Annexation Agreement will be included in any litigation.
· The result of a Freedom Of Information Act request filed with the town established that no permit(s) were sought by Tom Lehman and no permit(s) were issued by the town for any grading or grubbing work on Lehman parcel #1.
· The town has still not responded to the formal complaint filed by a citizen on August 23.[i]
· The grading and grubbing on Lehman parcel #1 continues.
· At the 8/29 meeting Tom Lehman stated that he intends to hold/sponsor fund raising events on the property, and perhaps additional use of the property would be by various other groups and organizations.
· Fund raising events are prohibited on all residentially-zoned parcels in Cave Creek.[ii]
· When Tom Lehman was asked whether there intended to be one, two, or as many as three-hundred or more events on the property each year he would not commit.
· Tom Lehman stated that his Lehman Family Foundation would be sponsoring the fund raising events on the property, some events with an attendance of 1,000 people.
· There will be a 2-acre grass field on Lehman parcel #1.[iii] Tom Lehman stated that synthetic turf was too expensive.
· The 2-acre grass field will be watered using water from the same aquifer used by other residents.
· Tom & Melissa Lehman have obtained a Spur Cross Road address for Lehman parcel #3. There is no house located on parcel #3. None of the Lehman’s four parcels front onto Spur Cross Road.
· The Lehman’s do not live on the property, and Tom Lehman has stated they have no intention of living on the property for at least another 5 to 7 years.
· Since December, 2014, Tom and Melissa Lehman have been working with the town to gain an extension of Honda Bow Road onto their property. Any extension or improvement of Honda Bow Road violates the Area 96-1 Annexation Agreement.
· The Honda Bow Road extension being sought by the Lehman’s is not needed for any reason other than for their fund raising events and for future expansion of density on the Lehman property. The extension of Honda Bow Road is necessary only to accommodate the increased traffic of busses and other vehicles which will be created by attendees to the fund raising events. All traffic will initially travel on Spur Cross Road.
· Spur Cross Road, Morning Star Road, Fleming Springs Road and School House Road are designated to become four-lane roads under the 2015 General Plan drafted by the town’s Planning Department staff.
· Under the town’s Ordinances and Town Code, “Special Event” permit(s) must be approved by the mayor and town council.
· Under the town’s Ordinances and Town Code, “Special Use” permit(s) must be approved by the mayor and town council.
The next course of action by the town and Tom and Melissa Lehman will determine the direction for any litigation and the speed at which residents must respond with litigation.
Prior to holding/sponsoring any fund raising events on their property, an application for a Special Event permit must be filed with the town by the Lehman’s.[iv] Under the town’s Ordinances and Town Code the mayor and town council members are legally required to consider/approve every Special Event application that is filed. The consideration/approval of the Special Event application must occur during a Town Council meeting [v] Any deference of this legal obligation of the mayor and town council members to any member(s) of town staff will add one more cause of action for residents to claim in any litigation. Any approval of the Lehman’s Special Event application will add one more cause of action for residents to claim in any litigation.
At the conclusion of the 8/29 neighborhood meeting residents decided it was necessary to consult legal counsel. Part 2 of this series sets forth some suggested options to discuss with legal counsel. Please take time to read these suggested options and even develop some of your own. When residents return from their summer hiatus there will be another neighborhood meeting (late October or early November - date to be announced) to collectively discuss all suggested options. The preferred option(s) decided upon by residents at this meeting will then be discussed with legal counsel. After the meeting with legal counsel another neighborhood meeting will be held to share the advice received and to collectively decide how to proceed.[vi]
Suggested Option #1: Do nothing.
Suggested Option #2: Require the restoration to original condition or re-vegetation of Lehman parcel #1.[vii] Under the town’s ordinances, the town has the authority to require a property owner to restore or revegetate any unapproved or unacceptable property disturbance. To accomplish this suggested option a quorum of new members must be elected to the town council in 2016.
Suggested Option #3: Decide on a course of action but delay taking any action until a new town council is seated in 2016.
Suggested Option #4: Retain legal counsel and initiate litigation without waiting for the mayoral and council elections in 2016.
Suggested Option #5: Retain legal counsel but delay filing litigation until the issue involving any Special Event application is decided by the mayor and town council members. The caveat with this option rests with the known history that town staff – not the mayor and town council members – have been approving Special Event applications and issuing permits in violation of the Town Code. When consideration/approval of Special Event permit(s) is handled by town staff there is no public notice or hearing, leaving residents with no way of knowing that a Special Event permit for the Lehman’s fund raising activity was issued until the day of the Special Event.
Suggested Option #6: Include in any litigation a claim that the mayor and town council members are not entitled to personal immunity. The town has in place all the necessary ordinances, town code provisions, as well as the Area 96-1 Annexation Agreement which require permits and protects residential zoning. The violations of these provisions are the result of behaviors by the mayor and town council members. Additionally, under the Area 96-1 Annexation Agreement the town is contractually bound to defend the provisions of the Area 96-1 Annexation Agreement against any and all persons violating the Agreement, which in this instance is the mayor and town council members.
Suggested Option #7: Extend the expiration date of the Area 96-1 Annexation Agreement.[viii] This will require the election of a quorum on the 2016 council approving an extension. The caveat with this option is that even with an extension, diligent efforts by all residents will always be necessary to ensure that the preservation and protections under the Area 96-1 Annexation Agreement are not breached or violated by future mayors and town council members. The Area 96-1 Annexation Agreement prohibits the widening of Spur Cross Road.
Suggested Option #8: Vote. The largest voting block in Cave Creek lives north of the town core off of Spur Cross Road, School House Road and Fleming Springs Road -- that includes all the side roads and connecting roads and this is the area most at risk for commercial development. The majority of residents living within this voting block area did not vote during the recall election. If this voting history were to repeat itself, and the 2016 mayoral and council election did not result in a quorum (4 or more) of new council members, the suggested options requiring a quorum of new council members in 2016 may well have the effect of Suggested Option #1: doing nothing.
Suggested Option #9: Initiate a recall campaign.
Except for Suggested Option #1, these or other suggested options may be pursued alone or in concert with other suggested options.
Janelle Smith-Haff
9/21/2015
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 please use the "Comment" button.
[i] The formal complaint also contained a request for the town to issue a cease and desist of the grading and grubbing work.
[ii] Applicable ordinances and town code sections were cited as authority and appear in Part 1 of this series.
[iii] No grass is allowed in Cave Creek except for bear (Nolina Micocarpa) and deer grass (Muhlenbergia rigens)”per TOCC Technical Design Guidelines – Landscaping: Prohibited Plants, #10, at p. 76. Bear grass and deer grass are not suitable grasses for a golf course.
[iv] A discussion of the other legal requirements and prohibitions involving residential/commercial zoning and fund raising appear in Part 1 of this series.
[v] There exists evidence that, in violation of the town’s Ordinances and Town Code, members of town staff have been routinely approving Special Event applications and issuing permits without consideration/approval of the application by the mayor and town council members.
[vi]No emergency injunction was sought to stop the grading and grubbing on Lehman parcel #1 based on the claim by Tom Lehman’s contractor that the work would be completed in 2-3 weeks (from 8/29). It was estimated that it would take almost that long to retain counsel, bring counsel up to speed on the issue, prepare the legal documents, serve the legal documents, receive the town’s response to the legal documents, have a court hearing, and secure a judicial ruling --- and at any point the injunction effort could have been circumvented by the town “suddenly” issuing permits.
[vii]A Zoning Clearance and Building Permit is required prior to any grading or grubbing. (Ch. 6, Sec. 6.0). A Town-issued Building Permit is required prior to any landscape improvements. (Ch. 8, Sec. 8.4(A)). The town has issued no Building Permit or Zoning Clearance on Lehman parcel #1. To the maximum extent allowed by law fines shall be assessed for any salvage, grubbing or grading performed without first obtaining the required Building Permit. (Ch. 8, Sec. 8.4(B)). A Financial Assurance Agreement between applicant and town must be approved prior to the issuance of any Building Permit for any grading or grubbing within the town. (Ch. 8, Sec. 8.3(A)). The Financial Assurance Agreement shall provide that if the Building Permit expires or the grading/grubbing is not constructed in conformance with the Town approved Native Plant Inventory Plan and Landscape Plan, the funding provided within the Financial Assurance Agreement may be used by the Town for the restoration to original condition, or re-vegetation of any unapproved or unacceptable disturbance.
[viii] It is likely that the Area 96-1 Annexation Agreement will be included in any litigation.
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