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City Council violates law
November vote to amend general development plan void
Thelma Grimes/San Pedro Valley News-Sun
The bad news is the Benson City Council didn't have all the facts and violated the law when they voted to approve a general plan amendment in November.
The good news, according to city officials, is that they won't have to spend $10,000 on a special election in May that would have allowed voters to weigh in on the matter.
Monday night, Benson City Manager Glenn Nichols read a prepared speech, stating the 4-3 City Council vote in November is now considered void, and an election is no longer needed.
Nichols said while conducting some research, City Attorney Michael Massee found a statute stating that any amendment to the General Development Plan must be approved by at least two-thirds of the council to be official.
In November, the council vote was split 4-3. The amendment was needed to start the process to annex 148 acres owned by four different property owners and rezone the properties from low density residential to high density residential and commercial.
Developer Jerry De-Grazia has been working for several years to build an 850-home development near State Route 90 in west Benson.
DeGrazia already had gone through the amendment process to annex and rezone 305 acres of land in 2007. The recent vote was considered part of that project, but would not affect the number of homes he is allowed to build. DeGrazia has already received unanimous council approval to build up to 850 homes on the 305-acre parcel.
"At the meeting (Nov. 23), it should have been brought to your attention that the motion failed," Nichols said. "What this means is that the major plan amendment did not pass since it failed to obtain the necessary super majority vote. What this also means is that since Resolution 74-2009 did not pass, the referendum to refer that resolution to the people is moot. Therefore there is not going to be a referendum election in May."
Following the council's vote to amend the general development plan, Benson resident Tom Fitzgerald led referendum efforts, gathering enough signatures from registered voters living in Benson City limits to require a special election.
The election would have allowed voters to either accept or reject the council's decision to amend the plan.
While DeGrazia received a courtesy call prior to Monday night's an-nouncement, Fitzgerald learned that his efforts appeared to be for nothing during Nichols' public announcement.
Fuming after the meeting, Fitzgerald said the elected officials who make up the City Council obviously have a "slick" attorney in Massee, and now, "the people need an attorney that will represent them."
Mayor Mark Fenn said Friday that he realizes this news makes the council look bad, and it is a mistake they will not make again in the future.
Fenn said Massee was following his directive when the "oversight" was discovered.
"I had asked the city attorney to look at how the council could rescind the original vote to amend the plan, and that way it would take away the action completely and there would be nothing to refer," he said.
The two-term mayor said he wasn't trying to sidestep voters, but was looking to save the city up to $10,000, which is the estimated cost to hold a special election.
Fenn said Massee subsequently found that the council accepted a vote that would not have been allowed by law, and there is no other choice except to void it and let the record reflect that without enough council votes, the measure failed in November.
This turn of events may stop the election efforts, but the city plans to move forward with a general plan amendment.
During his speech, which was read under the agenda item "city manager's report," Nichols said DeGrazia has been informed that he can reapply and go through the public process all over again.
"Had the ruling been made on Nov. 23 that the motion as presented failed, the City Council would have had jurisdiction to consider another motion, and the applicant could have requested a different, lesser, plan use designation," Nichols said. "We have informed (DeGrazia) of the status of the resolution, which is that it failed. If the applicant chooses the offer to be placed back in the position he was in on Nov. 23, we will be noticing a public hearing on the major amendment to the general development plan in the near future and scheduling action at the subsequent meeting."
Another option that was recommended by the Planning and Zoning Commission, prior to the November vote, was to approve a lesser zoning of medium-density residential, which would have meant fewer homes per acre.
While DeGrazia's portion of the project would not impact the number of homes he is allowed to build, it allows the other property owners such as Triple L Management and the Harlan Trust, which owns 60 of the 148 acres, to move forward with development plans.
City officials said they have no specifics on what the landowners are planning, but felt the general plan amendment and annexation would fit their future plans for growth along State Route 90.
For now, Fitzgerald couldn't say what his next step would be, but said more residents need to start attending council meetings to see what their elected officials are really up to.
Thelma Grimes/San Pedro Valley News-Sun
The bad news is the Benson City Council didn't have all the facts and violated the law when they voted to approve a general plan amendment in November.
The good news, according to city officials, is that they won't have to spend $10,000 on a special election in May that would have allowed voters to weigh in on the matter.
Monday night, Benson City Manager Glenn Nichols read a prepared speech, stating the 4-3 City Council vote in November is now considered void, and an election is no longer needed.
Nichols said while conducting some research, City Attorney Michael Massee found a statute stating that any amendment to the General Development Plan must be approved by at least two-thirds of the council to be official.
In November, the council vote was split 4-3. The amendment was needed to start the process to annex 148 acres owned by four different property owners and rezone the properties from low density residential to high density residential and commercial.
Developer Jerry De-Grazia has been working for several years to build an 850-home development near State Route 90 in west Benson.
DeGrazia already had gone through the amendment process to annex and rezone 305 acres of land in 2007. The recent vote was considered part of that project, but would not affect the number of homes he is allowed to build. DeGrazia has already received unanimous council approval to build up to 850 homes on the 305-acre parcel.
"At the meeting (Nov. 23), it should have been brought to your attention that the motion failed," Nichols said. "What this means is that the major plan amendment did not pass since it failed to obtain the necessary super majority vote. What this also means is that since Resolution 74-2009 did not pass, the referendum to refer that resolution to the people is moot. Therefore there is not going to be a referendum election in May."
Following the council's vote to amend the general development plan, Benson resident Tom Fitzgerald led referendum efforts, gathering enough signatures from registered voters living in Benson City limits to require a special election.
The election would have allowed voters to either accept or reject the council's decision to amend the plan.
While DeGrazia received a courtesy call prior to Monday night's an-nouncement, Fitzgerald learned that his efforts appeared to be for nothing during Nichols' public announcement.
Fuming after the meeting, Fitzgerald said the elected officials who make up the City Council obviously have a "slick" attorney in Massee, and now, "the people need an attorney that will represent them."
Mayor Mark Fenn said Friday that he realizes this news makes the council look bad, and it is a mistake they will not make again in the future.
Fenn said Massee was following his directive when the "oversight" was discovered.
"I had asked the city attorney to look at how the council could rescind the original vote to amend the plan, and that way it would take away the action completely and there would be nothing to refer," he said.
The two-term mayor said he wasn't trying to sidestep voters, but was looking to save the city up to $10,000, which is the estimated cost to hold a special election.
Fenn said Massee subsequently found that the council accepted a vote that would not have been allowed by law, and there is no other choice except to void it and let the record reflect that without enough council votes, the measure failed in November.
This turn of events may stop the election efforts, but the city plans to move forward with a general plan amendment.
During his speech, which was read under the agenda item "city manager's report," Nichols said DeGrazia has been informed that he can reapply and go through the public process all over again.
"Had the ruling been made on Nov. 23 that the motion as presented failed, the City Council would have had jurisdiction to consider another motion, and the applicant could have requested a different, lesser, plan use designation," Nichols said. "We have informed (DeGrazia) of the status of the resolution, which is that it failed. If the applicant chooses the offer to be placed back in the position he was in on Nov. 23, we will be noticing a public hearing on the major amendment to the general development plan in the near future and scheduling action at the subsequent meeting."
Another option that was recommended by the Planning and Zoning Commission, prior to the November vote, was to approve a lesser zoning of medium-density residential, which would have meant fewer homes per acre.
While DeGrazia's portion of the project would not impact the number of homes he is allowed to build, it allows the other property owners such as Triple L Management and the Harlan Trust, which owns 60 of the 148 acres, to move forward with development plans.
City officials said they have no specifics on what the landowners are planning, but felt the general plan amendment and annexation would fit their future plans for growth along State Route 90.
For now, Fitzgerald couldn't say what his next step would be, but said more residents need to start attending council meetings to see what their elected officials are really up to.
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The following are comments from the readers. In no way do they represent the view of bensonnews-sun.com.
Vigilante1 wrote on Jan 27, 2010 11:59 PM:
" They will probably put their financial lives on the line, take enormous risks, and invest in the community while you sit on your butt and collect your government welfare check. "
Paul wrote on Jan 28, 2010 7:36 AM:
" The council mistakenly thought that they had passed a resolution when they hadn't. Your article claims that they broke the law. What law did they break? "
oh well wrote on Jan 28, 2010 7:58 AM:
" So the only thing Fenn could find wrong with the process was the lack of a super majority vote.
Maybe the city attorney could look into the planning and zoning process used to make sure that was done properly as that was the reason for the referendum. "
Maybe the city attorney could look into the planning and zoning process used to make sure that was done properly as that was the reason for the referendum. "
Nana wrote on Jan 28, 2010 12:31 PM:
" As always the developers will pass off much of the infrastructure cost to the taxpayers. It is always the same story. The developers say what great things they will furnish for the good of the community. They never say what the extra burden on the taxpayer will be. They may furnish water and sewer pipes but neglect to say the city will have to make major upgrades to service the projects. Benson has not had a development that did not cost the taxpayers. Vigilante1 seems to think we should drop all programs and march behind Fenn and his developer buddies. These are out of town people. They are not investing in THEIR community. They are gambling with ours. Does anyone have any idea what Vigilante1’s welfare comment is about? Chances are he has lived in Benson less the 5 years and just likes to ramble. "
Risky behavior wrote on Jan 28, 2010 2:02 PM:
" Vigilante1
So, are you saying that because they put their money on the line that they do not have to abide by the law, rules and regs.
Or are you just saying that the City of Benson should not be held accountable. "
So, are you saying that because they put their money on the line that they do not have to abide by the law, rules and regs.
Or are you just saying that the City of Benson should not be held accountable. "
J. Gadzooks wrote on Jan 28, 2010 5:09 PM:
" Mayor said ,in this very article : " I had asked the city attorney to look at how the council COULD RESCIND THE ORIGINAL VOTE to amend the plan, and that way it would take away the action completely " AND THERE WOULD BE NOTHING LEFT TO REFER " !!! hey wake up folks , smell the coffee and call up your higher power or at least the cochise county attorney because this sounds like a public admission of ? well doesn't it ? "
John wrote on Jan 28, 2010 6:16 PM:
" And, so what do the busy parents and single taxpayers of Benson know about the complicated legal mechanics of "unwinding " a city ordinance ? . maybe there is grace granted ?? for committing a crime ,or misdmeanors , if you can defend it by saying We were just looking to save the city " up to $10k " And, so who are we to judge our elected officials .... first you need to be part of the jury . ahem. "
Larry wrote on Jan 29, 2010 8:33 AM:
" The council did not break the law by voting. The violation was in accepting a vote that was not a 2/3 vote. A mistake. A lot of work went into a referendum that was not necessary.
It is sad that some people make rude comments about other peoples opinion when not the same as theirs. It shows how little some people can be.Shame. "
It is sad that some people make rude comments about other peoples opinion when not the same as theirs. It shows how little some people can be.Shame. "
History Buff wrote on Jan 29, 2010 9:38 AM:
" " I wonder how Wyatt Earp would size this situation up , if he were running for office here. Maybe pro maybe con . He might insist that in genteel society the leaders code would be "Cowboy Up" and " Always shoot straight. " I am darn sure Benson would be a little different today if he had signed on for City Constable , Sheriff , Manager ? Where do we find people here with some sense "Of Genteel History" "
DT wrote on Jan 29, 2010 6:10 PM:
" To nanaedianetipton,
A friend called me with your comment.
This is Dianne Tipton and spell my name with 2 n's. Please get it right next time.
I am not NANA. But, NANA makes a lot of very good points. You ought to listen.
When I pesonally write comments. I put my name on it not like you. You know what they say about people that assume don't you?
To History Buff, at least 2 of us stood up to this nonsense and many of those of you that agreed with us didn't vote.
Instead some of you listened to the lies spread by and through the News Sun and in so doing you lost some of the best representation Benson residents ever had.
Funny thing is, I am still fighting for us all because I do care and I always try to do right because it is right. Those of you that want to change, need to stand up to this kind of thing and let your voice be heard.
Council meetings are on the 2nd and 4th Monday of each month. Hope to see you there. If you don't want to help fix the problem then are part of the problem. Lets work together.
Dianne Tipton (with 2 n's) "
A friend called me with your comment.
This is Dianne Tipton and spell my name with 2 n's. Please get it right next time.
I am not NANA. But, NANA makes a lot of very good points. You ought to listen.
When I pesonally write comments. I put my name on it not like you. You know what they say about people that assume don't you?
To History Buff, at least 2 of us stood up to this nonsense and many of those of you that agreed with us didn't vote.
Instead some of you listened to the lies spread by and through the News Sun and in so doing you lost some of the best representation Benson residents ever had.
Funny thing is, I am still fighting for us all because I do care and I always try to do right because it is right. Those of you that want to change, need to stand up to this kind of thing and let your voice be heard.
Council meetings are on the 2nd and 4th Monday of each month. Hope to see you there. If you don't want to help fix the problem then are part of the problem. Lets work together.
Dianne Tipton (with 2 n's) "
DT wrote on Jan 29, 2010 6:32 PM:
" How does stopping a referrendum save tax payers money when you pay and direct the city attorney to find ways out of the vote, then put it back on the agenda for another vote and make tax payers have to take time out of their busy schedules to circulate and sign petitions again if it passes with 5 votes
there will still most likely be a refferendum. The only thing that would stop that would be if Mayor Fenn, (who acted alone in this) has found a way to "side step the voters."
Those Council members that voted against it were, Al Sacco, David Lambert and Jodine Bonquet. Write them c/o of the City of Benson, or email them, you can get their email addresses at 586-2245 or on line or you may simply call 586-2245 ext.3 and speak with Gilda or Melissa to send a message to YOUR Council members.
Tell them you want them to vote no again. That is the way to save !8K.
This change is only good for developers, builders and realtors.
Dianne Tipton "
there will still most likely be a refferendum. The only thing that would stop that would be if Mayor Fenn, (who acted alone in this) has found a way to "side step the voters."
Those Council members that voted against it were, Al Sacco, David Lambert and Jodine Bonquet. Write them c/o of the City of Benson, or email them, you can get their email addresses at 586-2245 or on line or you may simply call 586-2245 ext.3 and speak with Gilda or Melissa to send a message to YOUR Council members.
Tell them you want them to vote no again. That is the way to save !8K.
This change is only good for developers, builders and realtors.
Dianne Tipton "
citizen Cane wrote on Jan 30, 2010 12:12 AM:
" I still can't believe that the City of Benson has not had a competent City Planner in over 15 years. I won't count Larry Krebs. He was not a real planner, but a helicopter pilot who got in through the "old boy" network, or Ms Demmit, who was so appalled at this city she left after only 4 months. When no competent professional planner is at the helm of land use issues, you have the developers and "cowboys" (sometimes one-in-the-same) running (or ruining) the City. Lets hope we get someone on board soon. I doubt it though, the word on the City of Benson for those in the planning field is "stay way" due to the city's all-to-frequent changes of City Managers The City of Benson changes directions more than most people change thier underwear. "
Vigilante1 wrote on Jan 31, 2010 4:52 PM:
" Ah Yes how could we not go without a comment from Tipton. Last time I checked you were recalled by voters so that tells us how much weight your opinion has. You are going to get as many people work together with you as showed up to support you in that cause. As for Nana's comment "these are out of town people". Last time I checked the Fenn's history here goes back over a century. What it boils down to is you all can't handle someone being successful and profitable while at the same time improving the community....you can't handle capitalism, you can't handle entrepreneurship, you can't handle that spreading the wealth around is NOT what made America "
Dense is as dense does wrote on Feb 1, 2010 2:05 PM:
" Vigilant1
Again you do not uphold the rule of law that should be followed nor do you acknowlede the cost to taxpayers which are both legitimate points.
It is your attitude that those with money don't have to follow the rules that gives capitalism a dirty name.
Please give capitalism a break and demand the laws be followed by all.
That is all that is being said. "
Again you do not uphold the rule of law that should be followed nor do you acknowlede the cost to taxpayers which are both legitimate points.
It is your attitude that those with money don't have to follow the rules that gives capitalism a dirty name.
Please give capitalism a break and demand the laws be followed by all.
That is all that is being said. "
Ron wrote on Feb 1, 2010 3:17 PM:
" Vigilante1:
Are you trying to replace Rush? Maybe you should run for City Council. I don’t think you should get into a battle of wits with Tipton. You are completely unarmed for that battle. "
Are you trying to replace Rush? Maybe you should run for City Council. I don’t think you should get into a battle of wits with Tipton. You are completely unarmed for that battle. "
John wrote on Feb 1, 2010 5:18 PM:
" Pretty crafty , my dear City Administration, pretty crafty , you go out of your way to help the poor civic petitioner find the challengeable mistakes in his referendum effort ( and make the State of Az. look lame in the process) while all along almost certainly, you knew.... yes you must have know that the Mayor's city council decision died for lack of enough votes. This way you could turn failure on it's head and make the voters THINK that you were doing them a great service and saving them time and $$$ . Well, so I wonder know what the next step is ? "
Geography Buff wrote on Feb 1, 2010 7:56 PM:
" Hey there Histyory Buff check out these facts little contemplated, but it's all there ! Miles and Miles and Miles of desert and it's all in our zip code ! Yup, and if we were to fill just half of it up , with 6 houses per acre well guess what ? that would amount to : 6x 640 x330 = 1,267,200 single family homes! ! You'all would still have 330 sq. miles of land to brag about to them thar tucsonians , texan's, and cousin tilly in Memphis and don't forget ! all of Tucson is "huge" at 160 sq. miles? . To get all the low down on extremely high water use just go to "zipskinny.com" and type in 85602. "
Vigilante1 wrote on Feb 1, 2010 11:53 PM:
" I could care less about a RECALLED ex-council women's opinion. If she was so brilliant I guess she'd still be at her post now wouldn't she? All good liberals like Ron are worried about is "wits" or talking issues to death. Investors, entreprenuers, people who are willing to take a risk to attain financial gain are DOERS....people of action. As for the rule of law, you are definitely not a capitalist if you don't understand the one rule of capitalism: he who has the gold makes the rules! Always has been and always will be. You don't understand capitlism if you don't understand this one principle. "
To dense... wrote on Feb 2, 2010 8:25 AM:
" What law was not followed? What law was supposedly broken? "
Not Ron wrote on Feb 2, 2010 11:40 AM:
" No one needs to have a battle of wits with Tipton. This 2nd grade ? Why battle someone who has a track record of losing in everything they try? good day! "
Larry wrote on Feb 2, 2010 12:13 PM:
" Vigilante1. Blah blah,blah. It appears that if someone does not agree with you they must be on welfare or be a liberal. How small you are. "
Corruption watcher wrote on Feb 2, 2010 3:37 PM:
" Ms. Tipton has a track record of WINNING many thing she tries and does her homework on issues, for which reason the good ol' boy network in Benson worked so hard to have her recalled from the council. In reading the article, it came to mind, doesn't Mayor Fenn have business dealings with Triple L Management? It's no wonder that he found a way for their development to move forward. "
Tipton trailer park wrote on Feb 2, 2010 5:18 PM:
" A winning track record huh? Being voted out and then losing in another vote doesn’t seem winning to me… oh yea that’s right delusion is reality in your world. Stay with the “good” ole boy insults on a forum online of a newspaper that’s all you have left.
I like Tipton over-filled trailer parks that qualifies as the “old” Benson network that nobody wants a part of. The voters of spoken too many times "
I like Tipton over-filled trailer parks that qualifies as the “old” Benson network that nobody wants a part of. The voters of spoken too many times "
the truth wrote on Feb 2, 2010 5:24 PM:
" "CONSENT AGENDA: ***
1a. Approval of Minutes of the September 16, 2008 Special Meeting *
1b. Approval of Minutes of the September 22, 2008 Regular Meeting, including Executive Session Minutes *
1c. Appointment of Phyllis Little to the Benson Historic Preservation Commission *
1d. Removal of former Councilmember, Dianne Tipton, from the Benson Economic Development Subcommittee *
1e. Appointment of Bob Nilson"
Music to my ears "
1a. Approval of Minutes of the September 16, 2008 Special Meeting *
1b. Approval of Minutes of the September 22, 2008 Regular Meeting, including Executive Session Minutes *
1c. Appointment of Phyllis Little to the Benson Historic Preservation Commission *
1d. Removal of former Councilmember, Dianne Tipton, from the Benson Economic Development Subcommittee *
1e. Appointment of Bob Nilson"
Music to my ears "
where is the conscience wrote on Feb 2, 2010 9:13 PM:
" Vigilante1
Could it be you are a Bernie Madoff wanna be? "
Could it be you are a Bernie Madoff wanna be? "
Get some help please. wrote on Feb 3, 2010 9:48 AM:
" It is oblivious that most of the anti-Tipton letters were written by the same person. It appears this writer has a deranged one tracked mind. The news story was not about Tipton. It does not even mention her. I suspect the writer is a disgruntled neighbor who lost a claim about the property she manages. Let it go, you lost. Quit kicking a dead horse. Get some help please. "
You beyond help wrote on Feb 3, 2010 10:56 AM:
" You got it backwards there is one supporter from the start that made a phone call to Diane about the comments for online. I never lost nothing to Diane I am better off then she is I don’t have to worry about trailers. A deranged one tracked mind huh? Wow so passionate I guess I rather have that then an uneducated lowered IQ mindless follower. But hey it’s not like you know so no blame, its obvious what the news story is about but somehow that “loveable” loser Tipton gets talked about. "
Get some help please wrote on Feb 3, 2010 3:05 PM:
" I never lost nothing!! You need to get your grammar more better. You are losing it altogether. “You beyond help” is also a jewel. Sharpen your crayon and keep trying. You can do gooder. "
WTH wrote on Feb 3, 2010 4:42 PM:
" This newspaper does not need a comic section. They have Vigilante1 and his clones. Their comments are best laugh I have had in awhile. The writings are so confusing and juvenile, they are hilarious. Keep them coming!!!! "
Grammar police wrote on Feb 3, 2010 7:01 PM:
" To "You beyond help":
You call people who oppose your views "uneducated," however, your post contains MULTIPLE grammatical errors. For example, "nothing" should be "anything," "one tracked" needs a hyphen between the two words, and "then" should be "than" when you're making a comparison. "
You call people who oppose your views "uneducated," however, your post contains MULTIPLE grammatical errors. For example, "nothing" should be "anything," "one tracked" needs a hyphen between the two words, and "then" should be "than" when you're making a comparison. "
Nana wrote on Jan 27, 2010 1:44 PM: