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Kendrick's case against city on to superior court
Thelma Grimes/San Pedro Valley News-Sun
Mobile home park owner Jay Kendrick's case against the City of Benson will move forward as filed, after Cochise Council Superior Court Judge Stephen Desens denied a motion to dismiss the writ of mandamus.
Kendrick's attorney, from the Lewis and Roca law firm in Tucson, filed a Writ of Mandamus against Public Works Director Brad Hamilton, who has refused to issue a permit for a new trailer to be installed at lot 27 in the Stagecoach Trails Mobile Home park.
The city has refused to permit the trailer, stating it is in violation of Section 16 of the city code, and is too big for the lot.
Kendrick has argued that Section 16 does not apply in this particular case, because Section 16 only refers to new parks.
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.
Judge Desens is scheduled to hear the case against Section 16 where lawyers are not only arguing lot 27 is grandfathered, but also that the entire code is void because proper procedure wasn't followed in 1997 when it was approved.
On June 30, Desens denied the city's motion to dismiss the writ of mandamus portion of the lawsuit, where Kendrick is also looking to recoup an estimated $50,000 in legal fees.
City Attorney Michael Massee argued that writ of mandamus should not apply to this case, stating Hamilton has followed proper procedure in denying the permit.
Currently, the trailer to be placed on lot 27 sits on the property on wheels.
Kendrick's attorney, John Hinderbaker, argued time is of the essence.
"Every month he cannot use the space, he loses rent and faces $750 penalties every day," he said.
Desens questioned Massee on the city taking the matter into civil court, where Kendrick has been cited for violating city code. Kendrick was facing a $750 a day fine for leaving the trailer on the property.
Massee said the city stayed the daily fines while the case is being sorted out in court. He also told Judge Desens, if Kendrick complied with the code, the city would agree to waive the fines already assessed.
"The fines are geared toward compliance, not punishment," Massee said.
After the hearing, City Manager Glenn Nichols said the fines are an issue of compliance, the city is following procedure in making Kendrick follow city code.
"The money from those fines will not make or break our budget," he said.
Hinderbaker said he feels there is an "extreme prejudice" against his client, bringing up a history, dating back to 2008.
Hinderbaker said the city has held Stagecoach Trails as a target since the park manager Dianne Tipton was recalled from the Benson City Council in February 2008.
Tipton is Kendrick's mother.
Hinderbaker also said Kendrick has signed a sworn affidavit that Benson Mayor Mark Fenn told him if Tipton didn't manage his park, things would be a lot easier for him with the city.
Fenn said he did talk to Kendrick about Tipton, but did not say the city was prosecuting his park because of the ongoing dispute.
Fenn said he told Kendrick it would be easier to work directly with him rather than Tipton.
After a 40-minute hearing, Desens denied Massee's motion to dismiss, pushing the entire case forward to July 27.
City Manager Nic-hols said while the city is disappointed with the decision, it will continue to defend the case in late July.
The city still won't issue a permit for the trailer to be installed, and Nichols said he is confident the city will win in the end.
Former Benson Public Works Director Larry Kreps will testify that proper procedure was followed when Section 16 was approved in 1997, and Massee said there is a possibility that a former City Council member will also testify.
Desens is allowing Massee to research the possibility of holding a jury trial to decide the issue.
Cochise County Sup-erior Court was Kendrick's next option after the city-appointed Board of Adjustments upheld the city's interpretation of Section 16 in a 4-1 vote in April.
Hinderbaker and Mas-see did not return the News-Sun call for comment following Desens' June 30 ruling.
Mobile home park owner Jay Kendrick's case against the City of Benson will move forward as filed, after Cochise Council Superior Court Judge Stephen Desens denied a motion to dismiss the writ of mandamus.
Kendrick's attorney, from the Lewis and Roca law firm in Tucson, filed a Writ of Mandamus against Public Works Director Brad Hamilton, who has refused to issue a permit for a new trailer to be installed at lot 27 in the Stagecoach Trails Mobile Home park.
The city has refused to permit the trailer, stating it is in violation of Section 16 of the city code, and is too big for the lot.
Kendrick has argued that Section 16 does not apply in this particular case, because Section 16 only refers to new parks.
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.
Judge Desens is scheduled to hear the case against Section 16 where lawyers are not only arguing lot 27 is grandfathered, but also that the entire code is void because proper procedure wasn't followed in 1997 when it was approved.
On June 30, Desens denied the city's motion to dismiss the writ of mandamus portion of the lawsuit, where Kendrick is also looking to recoup an estimated $50,000 in legal fees.
City Attorney Michael Massee argued that writ of mandamus should not apply to this case, stating Hamilton has followed proper procedure in denying the permit.
Currently, the trailer to be placed on lot 27 sits on the property on wheels.
Kendrick's attorney, John Hinderbaker, argued time is of the essence.
"Every month he cannot use the space, he loses rent and faces $750 penalties every day," he said.
Desens questioned Massee on the city taking the matter into civil court, where Kendrick has been cited for violating city code. Kendrick was facing a $750 a day fine for leaving the trailer on the property.
Massee said the city stayed the daily fines while the case is being sorted out in court. He also told Judge Desens, if Kendrick complied with the code, the city would agree to waive the fines already assessed.
"The fines are geared toward compliance, not punishment," Massee said.
After the hearing, City Manager Glenn Nichols said the fines are an issue of compliance, the city is following procedure in making Kendrick follow city code.
"The money from those fines will not make or break our budget," he said.
Hinderbaker said he feels there is an "extreme prejudice" against his client, bringing up a history, dating back to 2008.
Hinderbaker said the city has held Stagecoach Trails as a target since the park manager Dianne Tipton was recalled from the Benson City Council in February 2008.
Tipton is Kendrick's mother.
Hinderbaker also said Kendrick has signed a sworn affidavit that Benson Mayor Mark Fenn told him if Tipton didn't manage his park, things would be a lot easier for him with the city.
Fenn said he did talk to Kendrick about Tipton, but did not say the city was prosecuting his park because of the ongoing dispute.
Fenn said he told Kendrick it would be easier to work directly with him rather than Tipton.
After a 40-minute hearing, Desens denied Massee's motion to dismiss, pushing the entire case forward to July 27.
City Manager Nic-hols said while the city is disappointed with the decision, it will continue to defend the case in late July.
The city still won't issue a permit for the trailer to be installed, and Nichols said he is confident the city will win in the end.
Former Benson Public Works Director Larry Kreps will testify that proper procedure was followed when Section 16 was approved in 1997, and Massee said there is a possibility that a former City Council member will also testify.
Desens is allowing Massee to research the possibility of holding a jury trial to decide the issue.
Cochise County Sup-erior Court was Kendrick's next option after the city-appointed Board of Adjustments upheld the city's interpretation of Section 16 in a 4-1 vote in April.
Hinderbaker and Mas-see did not return the News-Sun call for comment following Desens' June 30 ruling.
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Reader Comments
The following are comments from the readers. In no way do they represent the view of bensonnews-sun.com.
DJ wrote on Jul 7, 2010 5:27 PM:
" many Benson officials from the mayor to the police have this complex that they are above the law. This city needs a drastic change in the politics and police force. "
Jeff wrote on Jul 8, 2010 10:57 AM:
" Nichols is Fenn's puppet, like so many in the city and council. But look what happens if you cross Fenn. Fenn has set the Town back to theLB days where Kreps was the main puppet. "
Stay tuned wrote on Jul 8, 2010 10:59 AM:
" Attorneys did not return phone calls, nothing unusual about that but if I had to guess Massee is frantically trying to negotiate his way out of this mess.
Some thing about tangled webs and deciption
come to mind. "
Some thing about tangled webs and deciption
come to mind. "
Mary L wrote on Jul 8, 2010 12:09 PM:
" If the city hired a hit man for Kendrick and Tipton it would save the taxpayers money. It is so sad we have this “pay back” mentality in our city officials. Can you honest council members put a stop to this? Tipton and her son are being punished for her telling the truth. A big NO NO in Benson politics. The mayor was the one who should have been recalled. "
Mike wrote on Jul 11, 2010 12:22 PM:
" When Larry Kreps worked for the city it was said each morning he would report to the City Manager. The City Manager would wind him up and send him out to tell the city story of the day. He changed stories so often he had problems himself remembering the latest story he was spinning. I am sure he will be wound up again before he testifies. Pavlov or someone else will be ringing the bell.
We remember him telling about the SOLID wall that would surround a new RV park on Forth Street as required by his office. When that failed he said it was oversight. Technical problems and oversights seemed to be used often by him. The city must be clutching at straws to have him testify. "
We remember him telling about the SOLID wall that would surround a new RV park on Forth Street as required by his office. When that failed he said it was oversight. Technical problems and oversights seemed to be used often by him. The city must be clutching at straws to have him testify. "
Robert D wrote on Jul 12, 2010 9:54 AM:
" The city, like all bully’s hate it if people push back. I expect there are a lot of closed door meetings trying to get out of this one. It is time the city got what they have coming to them. They seem to think it is their job to intimidate any Benson citizens who do not bow to them. "
Nana wrote on Jul 7, 2010 11:37 AM:
Larry Kreps testifying !!!!!! Will he get to wear his city waffle hat? "