CAVE CREEK – As Sonoran News reported back in September, when attorneys Christopher Callahan and Dawn Meidinger of Fennemore Craig, P.C. filed a notice of claim with the town on Aug. 31, a mandatory precursor to a lawsuit when suing a government entity in Arizona, it only stated they were representing “a number of residents who live within an area annexed into the town of Cave Creek in 1997 commonly known as Annexation Area 96-1.”
However, Treat Creekers Fairly sought donations on its website to help fund the legal fees associated with the notice and possible lawsuit.
Because the town of Cave Creek didn’t agree to the demands outlined in the claim and payment of $9,500 for legal fees or, in the alternative, payment of $1,597,150 to avoid a lawsuit, Heather Larson and John Sawazhki, Honda Bow Road residents and directors of Treat Creekers Fairly, Inc., have now filed a lawsuit against the town, joined by failed mayoral candidate Janelle Smith-Haff, Stephen Haff, Keith and Kathy Johnson, and Paul and Barbara Stockford.
The complaint asserts the town is in violation of the various development/annexation agreements (AA) and ordinances and states the town made a series of covenants with respect to Cave Creek Crossings, Honda Bow Alignment, Morning Star Road and Spur Cross Road.
The property owners claim the town is in breach of its commitments and states none of the property owners in Area 96-1 have consented to the town’s actions.
Claiming the town has acquired rights-of-way on both Honda Bow and Morning Star roads “via exaction as a condition for the grant of a building permit for homes or structures within the AA,” plaintiffs believe the town is prohibited from doing so and demand the town relinquish all acquired rights-of-way obtained after the AA was approved by the town, maintaining they were acquired illegally.
Plaintiffs noted a June 29, 2016 e-mail correspondence from Town Manager Peter Jankowski to Smith-Haff saying the town had been asked by Tom Lehman to extend the existing Honda Bow right-of-way (ROW) to his property and, in order to do so, the town first needed to determine the location of the ROW, and conducted a survey in consideration of the request.
However, according to the complaint, the town is prohibited from planning, designing, or acquiring ROW, and plaintiffs claim this was not the first time the town has expressed its intent to extend the Honda Bow ROW to the Lehman property.
Following a meeting with certain town officials, called by concerned property owners within Annexation Area 96-1, plaintiffs assert the town led them to believe it had terminated its efforts in this regard.
Plaintiffs also contend the town has made unauthorized improvements by installing a number of culverts on Honda Bow Road as well as installation and maintenance of ground surface asphalt over what was previously an unimproved dirt roadway.
According to plaintiffs, the town’s interest in installing a culvert on Morning Star Road to facilitate drainage from erosion is a violation of the AA.
They also claim the town has failed to initiate grading and application of dust retardant at the same frequency it is provided at other locations throughout the town.
When the town ignored the demands made in the Aug. 31 notice of claim, which included: identifying and relinquishing of all illegally acquired ROW on Honda Bow and Morning Star roads; written confirmation of the town’s intent to adhere to the provisions of the AA for the remainder of its term, including a commitment to cease all activity associated with the extension of Honda Bow Road and the improvement of Morning Star Road; issuance of an order directing the removal of the illegal grass/turf facility on the Lehman property and restoration of the mass graded area with native grasses; reimbursement for monetary damages in the amount of $9,500 for legal fees and costs incurred to date; or, in the alternative, payment of $1,597,150 for diminution of property values, plaintiffs filed the complaint on Nov. 10.
Plaintiffs accuse the town of violating its ordinances, breach of contract, breach of good faith and fair dealing, and unjust enrichment as they seek injunctive and declaratory relief.