BY LINDA BENTLEY | JANUARY 29, 2014
Freeman settlement put on hold
‘In this case, I think it’s best to let the court decide’
CAVE CREEK – Following Monday night’s executive session, the special session meeting of the Cave Creek Town Council brought Mike Beckham, president of the Las Ventanas HOA, to the podium during Call to the Public to discuss the notice of claim his HOA filed against the town three years ago to address the odors from the wastewater treatment plant adjacent to their community.
He said his purpose was to educate the new council on the history of the problem since the plant was built and said the town needs to have a plan to correct the problem.
A few other Las Ventanas residents followed to bolster what Beckham said and stated they didn’t want to sue and only want the odor problem corrected.
Interim Town Manager Rodney Glassman introduced the newly hired Utilities Manager/Deputy Town Engineer David Prinzhorn, who shook hands with each of the council members and went outside to talk to the Las Ventanas homeowners to set up a meeting with them so they can get the odor issues resolved.
The only action item on the agenda was a proposed settlement agreement between the town and Gerald and Janice Freeman, who sued the town, Cahava Springs, LLC and their neighbor Don Sorchych to prevent a non-motorized trail from being developed adjacent to their property.
Planning director Ian Cordwell read the settlement agreement and provided copies at the podium for the public.
The agreement states, in part, “The town will not require or allow a non-motorized trail on the Cahava Springs property to be completed so long as either Gerald or Janice Freeman resides on their property at least half time.
“Cahava Springs will dedicate a 15 feet-wide recorded easement for the eventual construction of a non-motorized trail. The trail easement will be adjacent to and/or subsumed within the roadway right-of-way described in the following paragraph. The town will pay for the non-motorized trail.”
According to the settlement agreement, Cahava Springs will construct a dedicated roadway/easement from Old Stage Road to 48th Street with access to Freeman’s and Sorchych’s properties at the Pertl property confluence or between the Pertl confluence and the Freemans’ east property line if and when it formally subdivides and develops its properties.
“The roadway will consist of a 22 feet-wide paved road, five feet-wide shoulders on either side. Upon completion of the roadway, and in accordance with all applicable laws and ordinances, the town will inspect and accept the right-of-way. Upon acceptance, the existing easement over Cahava Springs’ property will be extinguished.
“If Cahava Springs does not receive final approval for a plat, Cahava Springs will not construct a non-motorized trail on its property so long as either Gerald or Janice Freeman resides on their property at least half time.”
Glassman stated the settlement agreement conforms with the general plan.
Cordwell also made available a print out of the following four points the settlement agreement is expected to accomplish:
1.
The 2005 general plan depicts a trail alignment across Cahava’s property from Old Stage Road to the west. Per the agreement the subdivider will give the town an easement to construct a non-motorized vehicular access easement across the property when the Freemans no longer reside on their property more than six months per year.
2.
When the subdivider develops the property, a right-of-way ranging from 60 feet to 32 feet will be dedicated to the town. A roadway will be constructed to town standards having a 22 foot-wide paved surface with granite shoulders. The public will have full access through the property within this right-of-way, including vehicular, equestrian, pedestrian and bicycle users.
3.
Although the town is prohibited from constructing a trail within the dedicated easement until significant departure by the Freemans, the public is not prevented from using an unimproved trail easement.
4.
Upon approval of the agreement, the lawsuit will be dismissed by all parties.
Sixteen people spoke during public comment beginning with Terry Smith (r), who said the agreement “sounds good” but stated, “Mr. Freeman has a reputation.”
Smith mentioned an incident he witnessed where Freeman drove his truck into the back of a mule knocking its hind legs down and another where he threatened to knock a woman off her horse with a shovel.
He said, “We enjoy our trails and open space. This trail is in the general plan. This settlement does not represent the people of this town.”
Town Attorney Fredda Bisman asked that comments be restricted to the settlement agreement and not make personal comments. Smith ignored Bisman and continued.
Mitch Riggin asked council not to vote for the settlement agreement and said, “My understanding is the town will win this lawsuit.”
Korina Riggin said, “There may be a reason or two to settle but many, many reasons not to.”
She said, “The trail does not even go on Mr. Freeman’s property,” and stated it was well documented that the town will win this lawsuit.
By settling, Riggin said the town will be setting a dangerous precedent.
Don Sorchych stated he was named as a defendant in the lawsuit for harassment and has been sued by Freeman three times and recently won a judgment against Freeman over his own use of an easement on his own property.
He said, “This lawsuit is very winnable … Miss Riggin is right. Vote it down and win the case.”
Janet Mohr (r) questioned whether the town had looked into the cost of putting a road through that area which has very inhospitable terrain.
She asked what the big hurry was and said there was no reason to rush through this with so many unanswered questions.
Pointing out the Freemans don’t even own the property they’re suing over, Mohr looked at council and said, “Are you kidding me?”
Amanda Nowicki said she was opposing the settlement with a road and stated, “My horse is an idiot. It would be safer to have a dedicated trail.”
Shelley Anderson said, “This is an offer that is not an offer,” and stated it had high potential for failure.”
She asked if the town wouldn’t be able to recover the costs of the lawsuit if it prevailed in court.
Steve LaMar said he disagreed with the town manager and said the trail has been in the general plan for decades.
He said, according to a recent survey, 85 percent of the people in the town value open space and trails more than anything else.
LaMar noted it was Freeman who supported the slate of candidates that are up for recall and said, “I hope you vote no but I have a funny feeling it will be 4-3.”
Melanie Williams said she has worked with the open space group since its inception and the trail is part of the general plan.
She said she didn’t understand why the town would approve a settlement in which the only benefit is for Freeman and nothing for the town, while placing easements and trails in jeopardy.
Bob Williams (r) said, “Secrecy has been the hallmark of this council. You’ve had executive sessions before each meeting … conducting town business behind closed doors.”
He said council was “selling out the citizens of this town.”
Janelle Smith-Haff read from the annexation agreement entered into between certain property owners and the town in 1997.
She stated the agreement prohibited vehicular access across Cave Creek and prevented the town from developing a public roadway for 25 years.
She asked why the town did not inform the developer of the annexation agreement.
John Fisher, the man who was riding the mule that day Freeman ran into it with his truck, said his afternoon ride turned into a shitty evening as a result but he was fortunate to have a good mule that recovered from the incident.
When Freeman got up to speak he said Fisher’s mule backed into his truck and said the trail was all retribution by former Town Manager Usama Abujbarah on behalf of Sorchych, whom he had lunch with every week.
Freeman stated, “This is a good agreement,” and urged council to accept it.
Sorchych and Smith both responded by saying Freeman was telling lies.
Mayor Vincent Francia interrupted and asked if there was anyone else who wanted to speak.
Luke Rosen said he was new to the community but has ridden here for a long time. Addressing the safety of what was proposed in the agreement, he stated horses and mules don’t have a “kill switch” and can’t compete with motorized traffic.
He said the agreement was not in the people or town’s best interest.
Francia said, “Sixteen people spoke,” and reminded council the only thing before them was the settlement agreement.
Councilman Mike Durkin moved to approve the agreement with a second by Vice Mayor Adam Trenk.
Durkin said he was afraid citizens only understood half of the settlement and based on his understanding, the town would be granted a 60-foot easement with a roadway at no cost to the town and no restriction on the town’s ability to widen so long as it’s within the right-of-way.
He said, “I don’t find the concerns to be valid.”
Trenk said it was not going to be paved and stated the case was not necessarily winnable.
He said the settlement stops the financial bleeding.
Claiming to be for trails and open space, Trenk told citizens they were tragically misinformed by Sorchych and were brought there to tug at their heartstrings.
Trenk also took a pot shot at this reporter by saying, “Make sure you get a picture of me with my mouth open and eyes closed to put on the front page.”
Citizens began shouting out that Trenk was wrong and they came on their own free will.
Francia interrupted Trenk to halt the personal attacks and stated, “Two wrongs don’t make a right.”
He said, “Let council do what council needs to do. Stay focused on the agenda.”
McGuire moved that the item be tabled and stated, “We need a properly designed trail. A shoulder is not adequate,” but due to a lack of a second, his motion failed.
The mayor limited council to three minutes for their comments.
Councilman Reg Monachino said if the town continued with the litigation it doesn’t know if it’s winnable and stated a 60-foot right-of-way provided plenty of room for everyone.
Councilman Charles Spitzer said a lot of people came to the meeting with their minds made up not to hear the facts.
Pointing out almost all of the east-west roads in Cave Creek have no trails or shoulders, he said people use them all the time for hiking and biking and running.
He said settling would stop the expense of a lawsuit.
Councilman Ernie Bunch said he came out of the executive session confused and stated he didn’t understand why the Freemans have to be gone six months and a day or permanently.
Francia said, “God bless the mule,” and stated the settlement agreement was well-intended.
However, he said the town needed to ensure private property rights don’t interfere with citizens’ rights.
“I’m not going to support this,” said Francia, noting 16 people had spoken and they were all incredibly emotional.
Durkin said the annexation agreement was raised for the first time that night and he had some concerns.
The Mayor asked Bisman if she had any involvement in the annexation agreement. She said she did not and was not familiar with its contents.
The mayor asked Cordwell if the settlement violated the annexation agreement.
Cordwell said he’s not a lawyer but he didn’t believe it did.
Francia stated, “In this case, I think it’s best to let the court decide.”
Durkin said, “I’m not convinced. No disrespect to Ian, but I don’t want to settle one lawsuit to initiate another.”
Durkin withdrew his motion and moved to continue the item until Feb. 3 to give council time to obtain a legal opinion.
Council voted 6-1 to continue with Monachino dissenting.
