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Kendrick to fight city code in Cochise County Superior Court
Thelma Grimes
SAN PEDRO VALLEY NEWS-Sun
Local manufactured-home park owner Jay Kendrick wants to recover up to $50,000 in legal expenses from Benson taxpayers as he continues to fight the validity of a zoning code.
Kendrick, owner of Stage Coach Trails park, is taking the fight to Cochise County Superior Court, challenging Section 16 of the City of Benson's zoning regulations that concern manufactured home parks and the minimum size for park spaces.
After a permit for space 27 was rejected when Kendrick tried to move in a larger trailer, the case went before the city's Board of Adjustments (BOA).
BOA, an appointed board that can overturn city staff decisions, upheld the city's interpretation of code in a 4-1 vote on April 15.
With 30 days to appeal, Kendrick, who has now hired Tucson firm Lewis and Roca, met the deadline, filing a special action complaint with Cochise County Superior Court.
At the BOA, Kendrick's attorney argued that his park, built in the 1970s, is exempt from conforming to Section 16 because of grandfathering.
The city has argued that when Kendrick put a new trailer on the lot, grandfathering no longer applied.
Besides its original argument that a newly adopted regulation may not affect existing property or the right to its continued use, Kendrick's attorneys are arguing that they shouldn't have to follow the regulations set forth in Section 16 because the entire code was not passed properly by the City Council in 1997.
By asking the judge to throw out the ordinance in its entirety, city officials say it would allow Kendrick to ignore zoning and fire protection codes and install the trailer on lot 27.
Lewis and Roca, along with Kendrick's mother Dianne Tipton, who is the manager of Stagecoach Trails, has requested masses of public records, dating from 1924 to 1997.
In the May 27 complaint, Kendrick's attorneys, John Hinderbaker and Jeffrey Sklar, argue that in 1997 the City Council did not comply with state law to pass the zoning regulation, because it did not hold the proper public hearing prior to voting, nor did they properly notify property owners.
Besides arguing the validity of the code, Kendrick is also seeking a fast-track to recovering what he has estimated to be more than $50,000 in legal fees.
In Count I of the May 27 complaint, Lewis and Roca filed a Writ of Mandamus against Public Works Director Brad Hamilton, who is referred to in the legal documents as the zoning administrator (ZA).
A writ or order of mandamus is an extraordinary court order because it is made without the benefit of full judicial process, or before a case has concluded. It may be issued by a court at any time that it is appropriate, but it is usually issued in a case that has already begun.
By calling Section 16 void, Kendrick made a demand through City Attorney Michael Massee and Hamilton for the city to go forward and approve the required permit for lot 27.
While a judge has yet to rule on whether or not Section 16 is void, Kendrick's attorney say the city has no "legitimate" right to halt the permit process.
"The city has initiated a zoning enforcement action against (Kendrick and Tipton), in Benson City Court, demanding the removal of a manufactured home moved onto space 27, but not installed there," the complaint states. "The City Attorney has indicated that the city will not stay the enforcement action to allow Plaintiff an opportunity to file suit to challenge the validity of Section 16."
By asking the judge to rule on a writ of mandamus, Kendrick is asking for an award of all attorneys' fees, an award of all taxable income incurred and any other relief deemed appropriate by the court.
If approved, Kendrick could get a quick payment of more than $50,000 without having to file a civil lawsuit or learn the court's findings regarding the validity of Section 16.
Judge Stephen Desens has scheduled a one-day trial to rule on the argument that Section 16 should be declared void on July 27.
City Attorney Massee filed a motion to dismiss the writ of mandamus on May 28.
"It stylizes this count as a mandamus action in an obvious attempt to be able to recover attorneys' fees should it prevail on this claim," he said. "However, because the type of relief it is seeking, a judicial declaration that an ordinance is void for procedural defects, is not the nature of a mandamus action. Count I must be dismissed as it is currently drafted."
Massee argued that for a judge to uphold writ of mandamus, it must clearly appear that the ZA acted unjustly by abusing discretion, and there must be no other plain, speedy and adequate remedy of the law.
"As the statute clearly states, mandamus is an extraordinary remedy, and the petitioner must have clear right to relief and respondent have a legal duty to act," he said. "Here, the plaintiff recognizes that before defendant Brad Hamilton, as the city's zoning administrator, may be compelled to issue the permit requested, the relevant zoning ordinance must first be declared void. Thus, plaintiff admits that the law, as it currently exists, specifically prohibits the issuance of the permit. Therefore, issuance of a writ of mandamus would be legal error of the facts."
In a response to Massee's motion, Lewis and Roca argue that, "The city does not, and cannot, cite authority to support the notion that mandamus is unavailable simply because a city official's inaction rests upon a void city law. Indeed, there is ample authority to the contrary. The court should deny the city's motion to dismiss."
In a rebuttal, Massee stressed that the law in question has not been deemed void by any court.
"Plaintiff's argument comes down to a suggestion that the city's zoning administrator has a non-discretionary duty to ignore a relevant ordinance on nothing more than the say-so of an aggrieved property owner claiming that it had not been properly adopted," he said. "No city could ever even consider applying a controversial ordinance if that were the law."
Judge Desens is supposed to rule on Massee's motion to dismiss in a telephone hearing scheduled for June 30.
Tipton, a former Benson City Councilwoman, was recalled by voters in February 2008.
SAN PEDRO VALLEY NEWS-Sun
Local manufactured-home park owner Jay Kendrick wants to recover up to $50,000 in legal expenses from Benson taxpayers as he continues to fight the validity of a zoning code.
Kendrick, owner of Stage Coach Trails park, is taking the fight to Cochise County Superior Court, challenging Section 16 of the City of Benson's zoning regulations that concern manufactured home parks and the minimum size for park spaces.
After a permit for space 27 was rejected when Kendrick tried to move in a larger trailer, the case went before the city's Board of Adjustments (BOA).
BOA, an appointed board that can overturn city staff decisions, upheld the city's interpretation of code in a 4-1 vote on April 15.
With 30 days to appeal, Kendrick, who has now hired Tucson firm Lewis and Roca, met the deadline, filing a special action complaint with Cochise County Superior Court.
At the BOA, Kendrick's attorney argued that his park, built in the 1970s, is exempt from conforming to Section 16 because of grandfathering.
The city has argued that when Kendrick put a new trailer on the lot, grandfathering no longer applied.
Besides its original argument that a newly adopted regulation may not affect existing property or the right to its continued use, Kendrick's attorneys are arguing that they shouldn't have to follow the regulations set forth in Section 16 because the entire code was not passed properly by the City Council in 1997.
By asking the judge to throw out the ordinance in its entirety, city officials say it would allow Kendrick to ignore zoning and fire protection codes and install the trailer on lot 27.
Lewis and Roca, along with Kendrick's mother Dianne Tipton, who is the manager of Stagecoach Trails, has requested masses of public records, dating from 1924 to 1997.
In the May 27 complaint, Kendrick's attorneys, John Hinderbaker and Jeffrey Sklar, argue that in 1997 the City Council did not comply with state law to pass the zoning regulation, because it did not hold the proper public hearing prior to voting, nor did they properly notify property owners.
Besides arguing the validity of the code, Kendrick is also seeking a fast-track to recovering what he has estimated to be more than $50,000 in legal fees.
In Count I of the May 27 complaint, Lewis and Roca filed a Writ of Mandamus against Public Works Director Brad Hamilton, who is referred to in the legal documents as the zoning administrator (ZA).
A writ or order of mandamus is an extraordinary court order because it is made without the benefit of full judicial process, or before a case has concluded. It may be issued by a court at any time that it is appropriate, but it is usually issued in a case that has already begun.
By calling Section 16 void, Kendrick made a demand through City Attorney Michael Massee and Hamilton for the city to go forward and approve the required permit for lot 27.
While a judge has yet to rule on whether or not Section 16 is void, Kendrick's attorney say the city has no "legitimate" right to halt the permit process.
"The city has initiated a zoning enforcement action against (Kendrick and Tipton), in Benson City Court, demanding the removal of a manufactured home moved onto space 27, but not installed there," the complaint states. "The City Attorney has indicated that the city will not stay the enforcement action to allow Plaintiff an opportunity to file suit to challenge the validity of Section 16."
By asking the judge to rule on a writ of mandamus, Kendrick is asking for an award of all attorneys' fees, an award of all taxable income incurred and any other relief deemed appropriate by the court.
If approved, Kendrick could get a quick payment of more than $50,000 without having to file a civil lawsuit or learn the court's findings regarding the validity of Section 16.
Judge Stephen Desens has scheduled a one-day trial to rule on the argument that Section 16 should be declared void on July 27.
City Attorney Massee filed a motion to dismiss the writ of mandamus on May 28.
"It stylizes this count as a mandamus action in an obvious attempt to be able to recover attorneys' fees should it prevail on this claim," he said. "However, because the type of relief it is seeking, a judicial declaration that an ordinance is void for procedural defects, is not the nature of a mandamus action. Count I must be dismissed as it is currently drafted."
Massee argued that for a judge to uphold writ of mandamus, it must clearly appear that the ZA acted unjustly by abusing discretion, and there must be no other plain, speedy and adequate remedy of the law.
"As the statute clearly states, mandamus is an extraordinary remedy, and the petitioner must have clear right to relief and respondent have a legal duty to act," he said. "Here, the plaintiff recognizes that before defendant Brad Hamilton, as the city's zoning administrator, may be compelled to issue the permit requested, the relevant zoning ordinance must first be declared void. Thus, plaintiff admits that the law, as it currently exists, specifically prohibits the issuance of the permit. Therefore, issuance of a writ of mandamus would be legal error of the facts."
In a response to Massee's motion, Lewis and Roca argue that, "The city does not, and cannot, cite authority to support the notion that mandamus is unavailable simply because a city official's inaction rests upon a void city law. Indeed, there is ample authority to the contrary. The court should deny the city's motion to dismiss."
In a rebuttal, Massee stressed that the law in question has not been deemed void by any court.
"Plaintiff's argument comes down to a suggestion that the city's zoning administrator has a non-discretionary duty to ignore a relevant ordinance on nothing more than the say-so of an aggrieved property owner claiming that it had not been properly adopted," he said. "No city could ever even consider applying a controversial ordinance if that were the law."
Judge Desens is supposed to rule on Massee's motion to dismiss in a telephone hearing scheduled for June 30.
Tipton, a former Benson City Councilwoman, was recalled by voters in February 2008.
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The following are comments from the readers. In no way do they represent the view of bensonnews-sun.com.
Dekh wrote on Jun 24, 2010 1:46 PM:
" This is not an issue of not obeying the rules as this paper is trying to say. This is an issue about private property rights. The following facts were never reported to the public because the News Sun, knows these facts support Mr. Kendricks position and this paper does not want to do that. Ask yourself WHY?
1. The ordinance in question is for the developement of new parks, not for the regulation of existing parks. Read paragraph 1 (intent) It clearly states it is for the developement of new parks and section 18 of the same code specificly states that pre-existing properties will not be affected by this new ordinance and will be allowed to continue in the same lawfull manner that existed before this change in the ordinance in 1998. For 12 years this has been upheld, as it should have been.
2. There have been 34 homes moved into this park in question over the last 7 years. All had permits from the city of Benson and all were approved by the city of Benson and the State of Arizona for occupancy, all meet all fire safety set backs..
3.Mr. Massee and Mr. Nichols have decided to reinterpeit this city code. The question is WHY? Why, now, why this park and why not all the other parks in town? Why is this particular park being singled out? Their interpretation of this code immediately takes away 505 OF THE PROPERTY OWNERS spaces and income on that property. Why would the city want to do that?
4. Why would the city require a park to increase the size of their spaces when a home moves out What purpose would approx. 100 additional square feet serve?
5. This is not a safety issue. All of the homes moved into this park were and are required to meet all fire safety set backs which are inspected by the City of Benson and all homes including space #27 have met and or exceeded those requirements.
6. This is clearly a taking of Mr. Kendricks property and was designed to cost Mr. Kendrick money to control him or maybe it is his mothe,r Dianne Tipton, These issues should be reported as such to the public by this paper. The reinterpreted enforcement of this particular part of this ordinance by the city serves abosolutely no purpose.
5.This decision has the potential of removing all grandfathered rights from all properties not only in Benson but throughout the State of AZ., that includes your's. You have the right to know this and yet this paper doesn't give you that information. Why Not?
This paper has a responsibility to report the NEWS to this community and give the facts of issues fairly and evenly. Informing the public is a sacared trust and should be treated as such. While this report gave many facts, it ignored the other side completly and gave the impression that Mr. Kendrick was somehow doing something wrong or underhanded. What reponsible property owner wouldn't fight such a new interpretation of an 12 year old ordinance? If it is found that the City of Benson has acted in bad faith or illegally, why shouldn't Mr. Kendrick recover his expenses to recover his money spent to defend his property against such an illegal taking of his property and his rights? By the way by his doing so, your rights are being protected too.
Everything is public record and yet you only got the information this paper chose for you to hear but not the facts about how this could affect you or why you should be paying close attention to what is going on. Haven't you had about enough of this kind of reporting and minipulation by the city officials and others in this town. You better research and watch what is going on with this one. If you snooze, you may well loose.
You can read this ordinance on line. Go to City of Benson and click on Departments, then click on P$Z, then click on P%Z regulations. Go to section 16. Also go to section 18. Read them.
Form your own opinion about what's going on here.
Dekh "
1. The ordinance in question is for the developement of new parks, not for the regulation of existing parks. Read paragraph 1 (intent) It clearly states it is for the developement of new parks and section 18 of the same code specificly states that pre-existing properties will not be affected by this new ordinance and will be allowed to continue in the same lawfull manner that existed before this change in the ordinance in 1998. For 12 years this has been upheld, as it should have been.
2. There have been 34 homes moved into this park in question over the last 7 years. All had permits from the city of Benson and all were approved by the city of Benson and the State of Arizona for occupancy, all meet all fire safety set backs..
3.Mr. Massee and Mr. Nichols have decided to reinterpeit this city code. The question is WHY? Why, now, why this park and why not all the other parks in town? Why is this particular park being singled out? Their interpretation of this code immediately takes away 505 OF THE PROPERTY OWNERS spaces and income on that property. Why would the city want to do that?
4. Why would the city require a park to increase the size of their spaces when a home moves out What purpose would approx. 100 additional square feet serve?
5. This is not a safety issue. All of the homes moved into this park were and are required to meet all fire safety set backs which are inspected by the City of Benson and all homes including space #27 have met and or exceeded those requirements.
6. This is clearly a taking of Mr. Kendricks property and was designed to cost Mr. Kendrick money to control him or maybe it is his mothe,r Dianne Tipton, These issues should be reported as such to the public by this paper. The reinterpreted enforcement of this particular part of this ordinance by the city serves abosolutely no purpose.
5.This decision has the potential of removing all grandfathered rights from all properties not only in Benson but throughout the State of AZ., that includes your's. You have the right to know this and yet this paper doesn't give you that information. Why Not?
This paper has a responsibility to report the NEWS to this community and give the facts of issues fairly and evenly. Informing the public is a sacared trust and should be treated as such. While this report gave many facts, it ignored the other side completly and gave the impression that Mr. Kendrick was somehow doing something wrong or underhanded. What reponsible property owner wouldn't fight such a new interpretation of an 12 year old ordinance? If it is found that the City of Benson has acted in bad faith or illegally, why shouldn't Mr. Kendrick recover his expenses to recover his money spent to defend his property against such an illegal taking of his property and his rights? By the way by his doing so, your rights are being protected too.
Everything is public record and yet you only got the information this paper chose for you to hear but not the facts about how this could affect you or why you should be paying close attention to what is going on. Haven't you had about enough of this kind of reporting and minipulation by the city officials and others in this town. You better research and watch what is going on with this one. If you snooze, you may well loose.
You can read this ordinance on line. Go to City of Benson and click on Departments, then click on P$Z, then click on P%Z regulations. Go to section 16. Also go to section 18. Read them.
Form your own opinion about what's going on here.
Dekh "
Diana wrote on Jun 24, 2010 3:37 PM:
" Thanks Thelma! Excellent article! I am hoping that the court decision will be in favor of the city; as I agree that the city should win, and everybody needs to follow the laws as written, and not try to squirm out of following them! "
Nancy S. wrote on Jun 24, 2010 3:46 PM:
" I agree. Why does this newspaper take every opportunity it gets to kick Dianne Tipton? There is something more then is known by the general public to make the News-Sun treat her like it does. Maybe it is because of the things she has found out that the papers want to keep hidden. Our Golden Boy Mayor has been under suspicion for a number of things the paper fails to mention. "
Jim C wrote on Jun 24, 2010 3:52 PM:
" Why does this continue ? Why do you hate Dianne Tipton? This is a bully pulpit newspaper. How little can you get? Benson deserves better "
what is the purpose of a paper wrote on Jun 24, 2010 10:35 PM:
" This is an interesting enough issue that the paper doesn't need to keep throwing mud.
If the paper would actually get what the law suit is about and do some in depth investigation deserving journalistic recognition it would be doing this community a real service. "
If the paper would actually get what the law suit is about and do some in depth investigation deserving journalistic recognition it would be doing this community a real service. "
mary wrote on Jun 26, 2010 10:27 PM:
" the last sentence is not mud slinging! It is true, and Ms. Tipton needs to be reminded of that fact. "
Facts wrote on Jun 27, 2010 12:17 PM:
" The facts are, this code has been in affect for 13 years.
It has been properly interpreted that it did not and does not apply to existing parks during this entire period. 34 homes have been moved in and out of this park with no problem until now. Why?
The issue arrose over the New City Attorney, and City Manager Glenn Nichols deciding to re interprite the code and give it a new meaning that they coiuld then apply to Mr. Kendricks park.
At the board hearing, which was attended by Ms. Thelma Grimes, Mr. Kendrick disclosed under oath that he had in his possession tape recordings of
Mayor Mark Fenn stateing that the "new city attorney wants to slam you guys" meaning Mr. Kendrick and his park manager and his park. The question is why?
According to Mr. Kendricks sworn statement, Mayor Mark Fenn stated on the recording that "it is the political nature of things", and then suggest that business with the city would get better if Mr. Kendrick would "head off yuor mother". Is such a statement by our Mayor not news worthy Thelma. Doesn't the public have the right to know this information. You were there, why didn't you report that.
Mr. Kendricks statements were under oath and no one is sueing him for slander so what goes here.
If the voters in Benson continue to elect and appoint and support those that would ignore integerity, and those that would initiate minipulation and mis-application of the law, to simply satisfy a political vendetta, then they deserve what they get.
It was the city of Benson that initiated this law suit and Mr. Kendrick has been forced to deffend his property as you all will be defending yours if this is allowed to stand. Law suits are expensive to bring and to deffend.
The city of Benson is mis-applying the law deliberately and should be held financialy responsible. "
It has been properly interpreted that it did not and does not apply to existing parks during this entire period. 34 homes have been moved in and out of this park with no problem until now. Why?
The issue arrose over the New City Attorney, and City Manager Glenn Nichols deciding to re interprite the code and give it a new meaning that they coiuld then apply to Mr. Kendricks park.
At the board hearing, which was attended by Ms. Thelma Grimes, Mr. Kendrick disclosed under oath that he had in his possession tape recordings of
Mayor Mark Fenn stateing that the "new city attorney wants to slam you guys" meaning Mr. Kendrick and his park manager and his park. The question is why?
According to Mr. Kendricks sworn statement, Mayor Mark Fenn stated on the recording that "it is the political nature of things", and then suggest that business with the city would get better if Mr. Kendrick would "head off yuor mother". Is such a statement by our Mayor not news worthy Thelma. Doesn't the public have the right to know this information. You were there, why didn't you report that.
Mr. Kendricks statements were under oath and no one is sueing him for slander so what goes here.
If the voters in Benson continue to elect and appoint and support those that would ignore integerity, and those that would initiate minipulation and mis-application of the law, to simply satisfy a political vendetta, then they deserve what they get.
It was the city of Benson that initiated this law suit and Mr. Kendrick has been forced to deffend his property as you all will be defending yours if this is allowed to stand. Law suits are expensive to bring and to deffend.
The city of Benson is mis-applying the law deliberately and should be held financialy responsible. "
LL wrote on Jun 29, 2010 6:39 PM:
" To Mary
Mrs. Tipton doesn't need reminding of anything, . but apparently you do. Mrs. Tipton did not make the comment you refered to
Good people like you make sure that you take advantage of every opprotunity to make your snied remarks.
I know that this community is always on Mrs. Tiptons prayer list. In fact I am sure she will add you to it. Examine your own heart. You don't know her do you? "
Mrs. Tipton doesn't need reminding of anything, . but apparently you do. Mrs. Tipton did not make the comment you refered to
Good people like you make sure that you take advantage of every opprotunity to make your snied remarks.
I know that this community is always on Mrs. Tiptons prayer list. In fact I am sure she will add you to it. Examine your own heart. You don't know her do you? "
Diana wrote on Jun 29, 2010 8:01 PM:
" I see a lot of opinions here. I think the "grandfather law" is being misinterpreted by some. Also, most of the public seems to be always so quick to "hang" the city officials. Not wanting to admit that the city might be right., and the other party might be wrong!
Everyone is entitled to their own opinion, but, let me assure you, none of you knows the whole truth about this situation. I think it would be a good idea for everyone to get their facts straight, then give us an INFORMED OPINION. Thanks. "
Everyone is entitled to their own opinion, but, let me assure you, none of you knows the whole truth about this situation. I think it would be a good idea for everyone to get their facts straight, then give us an INFORMED OPINION. Thanks. "
Paul wrote on Jun 23, 2010 12:16 PM: