CAVE CREEK – It appears Heather Larson and John Sawazhki, Honda Bow Road residents and directors of Treat Creekers Fairly, Inc., have filed a notice of claim with the town, a mandatory precursor to a lawsuit when suing a government entity in Arizona.
The notice, sent by attorneys Christopher Callahan and Dawn Meidinger of Fennemore Craig, P.C., only states they are 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 is seeking donations on its website to help fund their legal fees associated with the notice and possible lawsuit.
The notice claims the town is in violation of the various development/annexation agreements (AA) and ordinances and states “[O]ur clients intend to file suit addressing these issues in Maricopa County Superior Court absent redress of the stated demands.”
The notice states the town made a series of covenants with respect to Cave Creek Crossings, Honda Bow Alignment, Morning Star Road and Spur Cross Road.
With respect to Honda Bow Road, the AA states the town agreed not to “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. If any right-of-way or roadway easement on this alignment of Honda Bow Road has been acquired by the county prior to the annexation, the town shall inform affected abutting owners that they may apply to acquire the surplus right-of-way under the procedures for the vacation and disposition of public roadways established in applicable state law.”
As to Morning Star Road, the notice claims the town agreed to not improve Morning Star Road such that it would be paved or includes more than two lanes.
It also asserts the town agreed it would not plan, design, acquire right-of-way or improve a public roadway providing continuous, uninterrupted vehicular access on the alignment of Morning Star Road west of Old Stage Road.
According to the notice, the purpose of the AA was to provide property owners with assurances about the town’s planning and improvement of roadways in Annexation Area 96-1 to ensure reasonable certainty, stability and fairness to the owners over the term of the agreement, which is effective through 2020.
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.
The notice asserts the town has acquired rights-of-way on both Honda Bow and Morning Star roads and claims it has “typically accomplished these acquisitions via exaction as a condition for the grant of a building permit for homes or structures within the AA.
The property owners 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, claiming they were acquired illegally.
The notice also cites a June 29, 2016 e-mail correspondence from Town Manager Peter Jankowski to Janelle Smith-Haff to say 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, stating the town was in the process of conducting a survey in consideration of the request.
Claiming the town is prohibited from planning, designing, or acquiring ROW the notice also asserts recitals to the AA state “[T]he 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.”
The notice goes on to state, “This is not the first time the town has expressed its intent to extend the Honda Bow ROW to the Lehman property. This situation has been ongoing since December 2014 when Dave Prinzhorn, Cave Creek Utilities Manager and Public Works Director, had the town marshal serve notice on the owners adjacent to Mr. Lehman (Mr. Sawazhki and Ms. Larson) that the town intended to extend Honda Bow Road into the Lehman Property. Following a meeting with certain Town officials, called by concerned owners within Annexation Area96-1, the town led the homeowners to believe that the town had terminated its efforts in this regard. Clearly, however, such is not the case. The town is expending public funds in violation of the AA and must cease and desist the conduct of the survey and all efforts to extend the existing alignment of Honda Bow Road to the Lehman Property.
The notice claims the town has also made unauthorized improvements by installing a number of culverts on Honda Bow as well as installation and maintenance of ground surface asphalt over the prior unimproved dirt roadway.
The property owners claim the town’s expressed interest in installing a culvert on Morning Star Road to facilitate drainage from erosion violates the AA as does the town’s failure to initiate grading and application of dust retardant at the same frequency the same is provided throughout the town along with numerous other expressed grievances.
They demand the town remedy the breaches of the AA within 60 days of the Aug. 31 notice which include: 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; issuanc 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.
If the town is unwilling to consent to their demands, including the reimbursement of their legal fees and costs incurred, the notice states they will file a complaint to seek injunctive relief and/or in the alternative, declaratory relief addressing the remedies enumerated along with monetary damages of $1,597,150 for diminution of property values.
The notice states their clients are willing to accept one of two proposals in full satisfaction of their claims – either the town agree to the equitable remedies outlined in the claim and payment of $9,500 or payment of $1,597,150.
If the town is not amenable to either proposal, the notice states their clients will proceed with a lawsuit as well as seek to recover their reasonable attorneys’ fees.
