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

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[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.

Desert Disruption Discovered.
Construction and earth moving equipment are sights and sounds of development.  When residents in Area 96-1 began to hear these sounds we followed them to its source: the 72± acre parcel purchased in early 2014 by professional PGA golfer Tom Lehman and his wife, Melissa.[i]   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.

Seeing no town permit signs for the removal of trees and cacti nor for the grading of the desert floor, up to three-feet deep in some areas and  which was resulting in 15-feet or higher mounds of dirt,  a Freedom of Information Act (FOIA) request was submitted to the town requesting “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) of any and all permit/inspection approvals, along with all correspondence, notes, and letters relative to” the four parcels owned by the Lehman’s.[ii] 

The town’s response to the FOIA was that no permits had been issued on any of the four (4) Lehman parcels. 

Town Manager Peter Jankowski was immediately notified.  The mayor and town council members were also immediately notified.  Our elected officials are doing nothing.  As of this writing the town has not even responded to the formal complaint filed on August 26th.

Cave Creek Residents Gather.
On August 29, 2015 a neighborhood meeting was held.  There were 28 people in attendance representing Area 96-1, Red Dog Ranch, Cahava Ranch, Spur Cross Road, as well as residents from the area of the once-proposed Enchanted Canyon Resort.  Tom Lehman and his contractor were also in attendance.  About a dozen other residents wished to attend but were either already out of town or would be out of town on 8/29.  All those in attendance were grateful that Tom Lehman attended the meeting as it allowed residents to hear directly from him how he plans to utilize the 72± acre parcel. 

Prior to the meeting Tom Lehman’s contractor referred to the construction occurring on Lehman parcel #1 as a golf course.  At the meeting Tom Lehman referred to the construction as “landscaping,” but as he further described it, his “landscaping” will consist of a 2-acre grass field with putting holes.  Use of grass for the “field” will require water drawn from the same aquifer used by residents living in the area.  (Tom Lehman stated that synthetic turf was too expensive.) 

The response by the town’s Planning Department to the lack of permits was that putting/chipping greens are allowed without a permit and that “piles of dirt” (referencing the 15-feet or higher mounds of dirt) are not a violation.

In response to questions at the 8/29 meeting, Tom Lehman stated that his Lehman Family Foundation would be sponsoring fund raising events on the property, some events with an attendance of 1,000 people, and perhaps additional use of the property would be by various other groups and organizations.  When asked whether there intended to be one, two, or as many as three-hundred or more events on the property each year Tom Lehman would not commit.

During the meeting, Tom Lehman stressed that giving back to the community was important to he and his wife because they feel so blessed. The residents of Cave Creek purchased Spur Cross Conservation Area to preserve the desert.  Use of the golf facility already available in Cave Creek, Rancho Manana Golf Club, for the fund raising events will give back to the Cave Creek community by way of revenue to the town without disrupting the lives and lifestyle invested by residents in the residential neighborhoods that exist north of the town core.  If not Rancho Manana Golf Club there is a publicly-owned, conveniently-located, large, fenced, grass soccer field on Cave Creek Road just south of Tatum Boulevard that could be used for fund raising events.

Should one residential property owner’s desires be allowed to disrupt the peace and quiet of the many long term residents?  Large fund raising events require special accommodations such as portable toilets, refrigeration trucks, catering facilities, white tents, outdoor lighting and outdoor audio equipment.  In addition, Tom Lehman stated that some of the attendees may be transported to the events via charter busses.  All of the traffic necessary for the events and all of the traffic caused by attendees will travel on Spur Cross Road.

Property’s Plans Prohibited.
The sponsorship of fund raising events by the Lehman Family Foundation places the fund raising activity in the business/commercial category and as such is a prohibited activity on any residentially-zoned parcel.  Under chapter 2 of the town’s ordinances, “fund raising” is not a permitted “Special Use” in a residential zone.  Additionally, “special uses” must be reviewed by the Planning Commission and approved by the town council.  Further, under the Town Code “fund raising” is not listed as a qualified Special Event.[iii]  Even if fund raising was approved by the town council as a Special Event, holding the event on residentially-zoned property does not qualify under the Town Code because: “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. “[iv]  The four Lehman parcels are not within a commercial zone and there is no “established primary commercial use” on any portion of the 72± acre parcel. 

Permits are required.  Under Ch. 6 of the town’s ordinances, a permit is required prior to the commencement of any grading and/or grubbing[v] of any area within a lot or parcel. [vi]  In addition to grading or grubbing permits, chapter 6 describes multiple requirements for other required permits concerning drainage, dust, etc., that must be obtained prior to the commencement of any grading or grubbing.  One of the required permits involves drainage from washes.  Knowing full well that any improvement to Morning Star Road is a violation of the Area 96-1 Annexation Agreement, nevertheless, the town has recently asked about installing a culvert on a section of Morning Star Road.  The section where the town wants to install the culvert is where the drainage flows from the wash on Lehman parcel #1 onto Morning Star Road. 

Why did the town not require permits prior to commencement of any grading or grubbing by the Lehman’s?

While it is clearly evident that permits and a re-zoning of the Lehman property to commercial  zoning is required, the question residents are asking is why the mayor and town council members are  doing nothing to protect our residential zoning, the serenity of our desert with its plants and animals, our creek, our water, and ensure that our skies stay dark so that the billions of stars in the night sky can be seen by every resident?

Hidden Agenda Suspected.
The commercialization of the area north of the town core is slated to occur under the 2015 General Plan as drafted by Ian Cordwell of the town’s Planning Department.  Spur Cross Road, Fleming Springs Road, School House Road, and Morning Star Road are all designated to become four-lane roads.  At a campaign forum during the recall election, the newly-elected council members promised residents on the west side that there would be an east-west crossing over the creek before the expiration of the Area 96-1 Annexation Agreement.  After becoming aware of this potential breach of the Area 96-1 Annexation Agreement by the mayor and this council, on April 20, 2015 the disclosure of this campaign promise was published at www.cavecreektownhallblog.com.[vii]

The Area 96-1 Annexation Agreement is the only thing preventing the commercialization of the area north of the town core, but especially Area 96-1. [viii]  During the 2014 Christmas holidays, a representative from the town along with Tom and Melissa Lehman met with two residents living on Honda Bow Road.  At the meeting the two residents were told that an extension of Honda Bow Road to the Lehman property was a “done deal” even though it violates the Area 96-1 Annexation Agreement.  The initial letter informing the two residents about the Honda Bow Road extension was served on the homeowners by the Town Marshall.  At the meeting with the two homeowners the Lehman’s stated that the extension onto Honda Bow Road was needed for a house.  At the 8/29 meeting Tom Lehman stated that they would not be living on the property for at least another 5 to 7 years.  There already exists residential ingress and egress from the Lehman property and it is not over Honda Bow Road. 

The Lehman property has been assigned a 54th Street address for more than 20 years yet the Lehman’s have obtained a Spur Cross Road address for Lehman parcel #3 – and there is no house on this parcel.  The residents living on Honda Bow Road do not have a Spur Cross Road address. 

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 property.  If the mayor and town council grant the Lehman’s access to Spur Cross Road by way of Honda Bow Road not only would that be a breach of the Area 96-1 Annexation Agreement it would be a cause for litigation. 

Take Action Now.
It was the decision by those in attendance at the 8/29 meeting to consult with counsel.  In Part 2 of this article (to be published on September 21st) some suggested options to address this commercial activity, profit or non-profit, in residential neighborhoods will be presented.  Upon the return of our presently out-of-town residents a meeting will be scheduled in late October or early November to decide which option(s) to discuss with counsel.  Taking immediate legal action to stop the construction on Lehman parcel #1 will not restore the desert nor will it resolve the issue of whether the town’s complicit inaction is a backdoor attempt by the mayor and town council members to create an “established primary commercial use” under the “Special Events” section of our Town Code in order to justify a future re-zoning of the Lehman property to commercial.

In the interim, the best investment we can all make is that of time – time to learn the facts and time to consider not only a course of litigation but whether or not there are alternatives to litigation or alternatives to include with litigation.  By using our time in this manner, the cost of our efforts will not be counted only in dollars and donations. 

Preserving our residential zoning and protecting the serenity of our desert, its plants, its animals, our creek, our water, and ensuring that our skies stay dark is our property right.  If we don’t stand together on this issue the consequences will be irreversible and all residents will be affected, not just those in Area 96-1.

Janelle Smith-Haff
www.cavecreektownhallblog.com [email protected]
9/10/2015

Endnotes:
[i]The Lehman property consists of four contiguous parcels totaling 72± acres located in Area 96-1. 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.

[ii] 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 is one parcel in from the intersection of Morning Star Road and Old Stage Road, on the north side.

[iii] Town Code, Title XI, Sec. 114.03 Definitions. 

[iv] Town Code, Title XI, Sec. 114.02(A) General Requirements.

[v] “Grading” as defined by town ordinance: “Grading is any excavating or filling to level land or create a slope or combination thereof.”  “Grubbing” as defined by town ordinance: “Grubbing is the clearing of a majority of the vegetative matter within a certain area.”

[vi] Zoning Ordinance Ch. 6 – Grading.  Sec. 6.0 General.  “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.”  The entirety of Ch. 6 details the requirement for a Dust Control Permit, which is issued by Maricopa County (ADEQ).  Sec. 6.2 requires that a Grading & Drainage Plan and Drainage Report also be completed, filed and approved by the town.  If these permits existed they were required to be released under the requested FOIA.

[vii] The information about the potential breach was published in the article titled “A Bridge Too Far” which is under the blog’s topic “Cahava Springs Dev”.  The disclosure of this council’s campaign promise was also stated into the record at the town council meeting. 

[viii] For information on the Area 96-1 Annexation Agreement and how it prevents rezoning and an east-west crossing over the creek go to www.cavecreektownhallblog.com, click on  the topic “Area 96-1 Annexation Agmt” and scroll down to the article titled “Annexation Agreement” which was posted on 07/11/2014.

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