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City mired in court battles on alleged code violations
Thelma Grimes/San Pedro Valley News-Sun
Over the last two years, the City of Benson has decided to crack down and enforce building and zoning codes, but property and business owners have preferred to take the issues to court rather than fix cited violations.
City Attorney Michael Massee has his hands full, fighting two legal battles on behalf of the city for enforcing codes and regulations. The city is facing legal challenges by local manufactured-home park owner Jay Kendrick and from the owners of the Butterfield Shopping Plaza.
The Butterfield Shopping Center filed the first lawsuit in 2009 after being ordered to make major repairs to the 4th Street plaza that holds anchor stores Safeway and Ace Hardware.
After years of tenants complaining, city officials took action, forcing then owner Nazy Hirani to hire qualified contractors to bring the building up to code.
Some of those requirements meant lifting the building's east wing, which had been sinking for years and improving plumbing and structural issues.
Hirani, who died in a plane crash earlier this year, filed the lawsuit, claiming Mayor Mark Fenn was behind the city's condemning the building.
The lawsuit states that Fenn benefited directly by getting tenants that fled the Butterfield Plaza.
Fenn wasn't the only building owner to benefit, since businesses such as Spur Western Wear and others moved in to facilities not owned by Fenn.
With the exception of a few businesses, the east side of the shopping complex sits empty.
In the meantime, repairs continue to take place at the Butterfield Plaza, in order to comply with city commands.
When the lawsuit was filed in September 2009, the Butterfield owners said they would settle for $4.7 million.
The city refused to settle, with City Council members and city officials believing they were right to enforce city codes.
City Manager Glenn Nichols said after he was hired that with no exceptions all laws would be followed. The former police chief has not only cracked down on manufactured-home parks, but also on properties overcome with weeds, trash and debris.
One council member stressed that threats of lawsuits can't stop city staff from doing their jobs, and enforcing the laws passed by current and former councils.
But the crackdown led to a second legal battle this year, after Kendrick, owner of the Stage Coach Trails manufactured-home park, refused to remove a trailer the city said was too big for the lot.
Kendrick said he should be able to place the trailer there because he falls under the grandfather clause that excuses businesses and property owners from complying with new laws because they were already established when the code was passed.
In Kendrick's case, the manufactured-home park was established in the 1980s, and the code pertaining to the lot size was passed by the City Council in 1997.
Kendrick argues that his entire property fits under the grandfather clause, even if he is placing a new trailer on the lot.
Massee and Nichols say the code wasn't strictly followed in the past, and now they are following all codes to the letter.
Adding a new trailer to the lot eliminates the grandfather clause argument, according to city officials.
Although arguably a Planning and Zoning code issue, the city is says that safety is a major concern, and the new larger trailer violates fire safety codes.
Manufactured-home fires can spread quickly, and that includes to neighboring lots, which is why fire safety codes in such parks have been established.
Kendrick will have his day in Cochise County Superior Court July 27, where his attorney is not only arguing that the code is being improperly applied but also questioning the validity of the code.
Kendrick is arguing that proper procedure wasn't followed in 1997 when the code was passed; therefore it should be deemed void.
If Kendrick is successful, it could be costly to the city. It could set the city up to pay a lawsuit, since Kendrick has also claimed he is treated unfairly because his mother is Dianne Tipton.
Tipton, a former City Council member, was recalled in 2008 after accusing Mayor Fenn of violating conflict of interest laws.
While a third-party attorney said she had some concerns with three of the seven accusations levied against Fenn, the Arizona Attorney General never filed charges.
Kendrick's attorneys claim the city is attacking Stage Coach Trails to get back at Tipton.
Kendrick told the City Council recently that he has accumulated more than $50,000 in legal fees.
While Butterfield Plaza complied with city requirements, Kendrick is still refusing to remove the oversized trailer.
The trailer in lot 27 still sits on wheels, with city officials even taking the issue to civil court to push Kendrick to remove it.
Kendrick was facing daily fines for refusal to comply with code, which Massee said has been stayed while the issue is sorted out in court.
Since this issue is now going to court, Nichols said the city has told other manufactured-home parks to hold off on requesting permits, and the city is considering a new policy to work with older parks by creating a contract that is agreeable to both parties.
Working in the city's favor in the Kendrick case is a Board of Adjustments vote to uphold the city's position.
Mayor Fenn said when it comes to the Kendrick situation, he feels they can still find a middle ground and come to some understanding.
But Fenn said the city is absolutely right in enforcing code, and just because of the continued threats of lawsuit, they should not hold back.
"I think the city is right to stand our ground in both of these cases," he said. "The city isn't 100 percent accurate on everything; some things could have been done differently, but we do need to enforce city code."
Fenn said he feels city staff could do a better job of customer service in notifying some business owners about violations, and in the Butterfield case, he felt condemning the building was not necessary.
As the debate continue, one thing has now become certain in both cases, the fate of the city's actions lies in a judge's hands.
Over the last two years, the City of Benson has decided to crack down and enforce building and zoning codes, but property and business owners have preferred to take the issues to court rather than fix cited violations.
City Attorney Michael Massee has his hands full, fighting two legal battles on behalf of the city for enforcing codes and regulations. The city is facing legal challenges by local manufactured-home park owner Jay Kendrick and from the owners of the Butterfield Shopping Plaza.
The Butterfield Shopping Center filed the first lawsuit in 2009 after being ordered to make major repairs to the 4th Street plaza that holds anchor stores Safeway and Ace Hardware.
After years of tenants complaining, city officials took action, forcing then owner Nazy Hirani to hire qualified contractors to bring the building up to code.
Some of those requirements meant lifting the building's east wing, which had been sinking for years and improving plumbing and structural issues.
Hirani, who died in a plane crash earlier this year, filed the lawsuit, claiming Mayor Mark Fenn was behind the city's condemning the building.
The lawsuit states that Fenn benefited directly by getting tenants that fled the Butterfield Plaza.
Fenn wasn't the only building owner to benefit, since businesses such as Spur Western Wear and others moved in to facilities not owned by Fenn.
With the exception of a few businesses, the east side of the shopping complex sits empty.
In the meantime, repairs continue to take place at the Butterfield Plaza, in order to comply with city commands.
When the lawsuit was filed in September 2009, the Butterfield owners said they would settle for $4.7 million.
The city refused to settle, with City Council members and city officials believing they were right to enforce city codes.
City Manager Glenn Nichols said after he was hired that with no exceptions all laws would be followed. The former police chief has not only cracked down on manufactured-home parks, but also on properties overcome with weeds, trash and debris.
One council member stressed that threats of lawsuits can't stop city staff from doing their jobs, and enforcing the laws passed by current and former councils.
But the crackdown led to a second legal battle this year, after Kendrick, owner of the Stage Coach Trails manufactured-home park, refused to remove a trailer the city said was too big for the lot.
Kendrick said he should be able to place the trailer there because he falls under the grandfather clause that excuses businesses and property owners from complying with new laws because they were already established when the code was passed.
In Kendrick's case, the manufactured-home park was established in the 1980s, and the code pertaining to the lot size was passed by the City Council in 1997.
Kendrick argues that his entire property fits under the grandfather clause, even if he is placing a new trailer on the lot.
Massee and Nichols say the code wasn't strictly followed in the past, and now they are following all codes to the letter.
Adding a new trailer to the lot eliminates the grandfather clause argument, according to city officials.
Although arguably a Planning and Zoning code issue, the city is says that safety is a major concern, and the new larger trailer violates fire safety codes.
Manufactured-home fires can spread quickly, and that includes to neighboring lots, which is why fire safety codes in such parks have been established.
Kendrick will have his day in Cochise County Superior Court July 27, where his attorney is not only arguing that the code is being improperly applied but also questioning the validity of the code.
Kendrick is arguing that proper procedure wasn't followed in 1997 when the code was passed; therefore it should be deemed void.
If Kendrick is successful, it could be costly to the city. It could set the city up to pay a lawsuit, since Kendrick has also claimed he is treated unfairly because his mother is Dianne Tipton.
Tipton, a former City Council member, was recalled in 2008 after accusing Mayor Fenn of violating conflict of interest laws.
While a third-party attorney said she had some concerns with three of the seven accusations levied against Fenn, the Arizona Attorney General never filed charges.
Kendrick's attorneys claim the city is attacking Stage Coach Trails to get back at Tipton.
Kendrick told the City Council recently that he has accumulated more than $50,000 in legal fees.
While Butterfield Plaza complied with city requirements, Kendrick is still refusing to remove the oversized trailer.
The trailer in lot 27 still sits on wheels, with city officials even taking the issue to civil court to push Kendrick to remove it.
Kendrick was facing daily fines for refusal to comply with code, which Massee said has been stayed while the issue is sorted out in court.
Since this issue is now going to court, Nichols said the city has told other manufactured-home parks to hold off on requesting permits, and the city is considering a new policy to work with older parks by creating a contract that is agreeable to both parties.
Working in the city's favor in the Kendrick case is a Board of Adjustments vote to uphold the city's position.
Mayor Fenn said when it comes to the Kendrick situation, he feels they can still find a middle ground and come to some understanding.
But Fenn said the city is absolutely right in enforcing code, and just because of the continued threats of lawsuit, they should not hold back.
"I think the city is right to stand our ground in both of these cases," he said. "The city isn't 100 percent accurate on everything; some things could have been done differently, but we do need to enforce city code."
Fenn said he feels city staff could do a better job of customer service in notifying some business owners about violations, and in the Butterfield case, he felt condemning the building was not necessary.
As the debate continue, one thing has now become certain in both cases, the fate of the city's actions lies in a judge's hands.
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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.
Nana wrote on Jul 21, 2010 1:35 PM:
" For so many years Benson building laws have been selectively enforced. Preferred people could do what they wanted while other selected folks were overly enforced. Planning and Zoning (P&Z) seemed to have two sets of rules. Kendrick got on the over enforcement list because of his mother. While on the city council his mother ask for a investigation of the Mayor. The whole council voted for the investigation, but only two members were targeted for retaliation. Although the Arizona Attorney General never filed formal charges against Fenn, the war rages on. The city powers decided to shoot the messengers instead of eliminating the real problem. One has to also question the Attorney General for not following through. It seemed clear enough facts had been presented.
One person clearly sits in the middle of these lawsuits. The same person who refuses to sign city council approved measures into law if he does not like it. A violation of the city code. A person named directly in one lawsuit because "Mayor Fenn benefited directly" by obtaining tenants that fled the Butterfield Plaza when it was condemned. Maybe is is past time to cut the head off the snake. The taxpayers are footing the bill for the lawsuits against the city. "
One person clearly sits in the middle of these lawsuits. The same person who refuses to sign city council approved measures into law if he does not like it. A violation of the city code. A person named directly in one lawsuit because "Mayor Fenn benefited directly" by obtaining tenants that fled the Butterfield Plaza when it was condemned. Maybe is is past time to cut the head off the snake. The taxpayers are footing the bill for the lawsuits against the city. "
Off by a long shot. wrote on Jul 21, 2010 4:54 PM:
" Just because you were recalled from office does not mean your family is immune to the laws. The city is enforcing the grandfather clause correct, and nowhere in Arizona is grandfathering applied to an entire park for them to move in and out units that are not in compliance. The law is there for a reason and I wish the citizens can see that. Good job city officials!!!! "
JV wrote on Jul 21, 2010 5:16 PM:
" Your tax dollars hard at work.... With this and combination with the individual state litigations on SB1070, watch you tax brackets go up in the next 5 to 10 years. Congrats.
I am going to vegas.... At least my money disappears on my own terms. "
I am going to vegas.... At least my money disappears on my own terms. "
Dan wrote on Jul 22, 2010 7:36 AM:
" Off by a long shot. wrote on Jul 21, 2010 4:54 PM:
“ Just because you were recalled from office does not mean your family is immune to the laws.’
I AGREE. IT ALSO MEANS YOU SHOULD NOT BE CONSTANTLY VICTIMIZED BY CITY OFFICIALS. THE CITY NEEDS TO GROW UP. "
“ Just because you were recalled from office does not mean your family is immune to the laws.’
I AGREE. IT ALSO MEANS YOU SHOULD NOT BE CONSTANTLY VICTIMIZED BY CITY OFFICIALS. THE CITY NEEDS TO GROW UP. "
Off by a long shot. wrote on Jul 22, 2010 1:48 PM:
" Dan...if someone is not in compliance, they should get there. The city is just enforcing the reg's the coucil adopted representing the citizens. If someone doesn't like the law, they should run for office in the attempt to change it. The city officials do not wake up in the morning looking to give someone a hard time. If they were in compliance, this would not happen. "
Dekh wrote on Jul 22, 2010 5:09 PM:
" To off by a long shot
Get an education. You have no idea what you are talking about.
You are a perfect example of someone speaking about something they know nothing about.
The city is not trying to enforce a granfather clause, it is trying to eliminate everyones grandfather protection to your private property.
Why don't you give us your address and we will have the city inspectors come and apply all the new codes to your home. Or do you think that your home is grandfathered and only has to meet the codes that were in existance at the time your home was built..
All manufactured home parks are grandfathered to the codes that existed at the time their parks were built.
The manufactured homes themselves are personal property and liscensed by the MVD. They are a conforming use in R3 and do not require a granfathering. It is the use of the property that is grandfathered not the home that belongs to someone else. This park has met every code required to be met at the time it was built and has upgraded on that considerably on it's own. There is no rational reason for the city to try to impose a new intepretation of an old code that was written to apply to new development not to an existing park. One has to ask why would they do that and do it only to this park?
Educate yourself before you speak or keep quiet.
Check out what the cities complaint is. They want to increase the size of the lots within all parks and are trying to reinterpret the code to do that. The amount of increase is insignificant. The lot size is more than adiquit for the home placed there on lot 27 and the fire safety set backs are all met on it as it is on every other space in this park.
At the BOA hearing Mac Mc Millian testified under oath that this home and all other homes in this park meet all fire and safety set backs. Thelma Grimes attended that hearing and is aware that hers and Jane Amaris remarks about the fire codes being violated are false but they still report it the way they want you to hear it.
Man up everyone. Pull the public records yourself. If you have a computer, Vicky Vivian can email the minutes from the BOA hearing to you at 0 cost. Read Mac McMillians testimony yourself. Of course if you are to lazy or just want to speak evil all the time I guess that you can just mimic each others comments and pretend that it imitates the facts and the truth.
The law suit has nothing to do with safety issues. It has to do with private property rights. You won't hear that from this paper, but you should. Be smarter than they are, check it out. You and your property may be next.
We all owe Kendrick and Tipton a vote of thanks for standing up for all of our rights. Shame on this so called NEWS PAPER.
There is more distance between the homes in this park than their are between businesses located on 4th street like the Barney Dental building built by Mayor Fenn. "
Get an education. You have no idea what you are talking about.
You are a perfect example of someone speaking about something they know nothing about.
The city is not trying to enforce a granfather clause, it is trying to eliminate everyones grandfather protection to your private property.
Why don't you give us your address and we will have the city inspectors come and apply all the new codes to your home. Or do you think that your home is grandfathered and only has to meet the codes that were in existance at the time your home was built..
All manufactured home parks are grandfathered to the codes that existed at the time their parks were built.
The manufactured homes themselves are personal property and liscensed by the MVD. They are a conforming use in R3 and do not require a granfathering. It is the use of the property that is grandfathered not the home that belongs to someone else. This park has met every code required to be met at the time it was built and has upgraded on that considerably on it's own. There is no rational reason for the city to try to impose a new intepretation of an old code that was written to apply to new development not to an existing park. One has to ask why would they do that and do it only to this park?
Educate yourself before you speak or keep quiet.
Check out what the cities complaint is. They want to increase the size of the lots within all parks and are trying to reinterpret the code to do that. The amount of increase is insignificant. The lot size is more than adiquit for the home placed there on lot 27 and the fire safety set backs are all met on it as it is on every other space in this park.
At the BOA hearing Mac Mc Millian testified under oath that this home and all other homes in this park meet all fire and safety set backs. Thelma Grimes attended that hearing and is aware that hers and Jane Amaris remarks about the fire codes being violated are false but they still report it the way they want you to hear it.
Man up everyone. Pull the public records yourself. If you have a computer, Vicky Vivian can email the minutes from the BOA hearing to you at 0 cost. Read Mac McMillians testimony yourself. Of course if you are to lazy or just want to speak evil all the time I guess that you can just mimic each others comments and pretend that it imitates the facts and the truth.
The law suit has nothing to do with safety issues. It has to do with private property rights. You won't hear that from this paper, but you should. Be smarter than they are, check it out. You and your property may be next.
We all owe Kendrick and Tipton a vote of thanks for standing up for all of our rights. Shame on this so called NEWS PAPER.
There is more distance between the homes in this park than their are between businesses located on 4th street like the Barney Dental building built by Mayor Fenn. "
richard tracy wrote on Jul 23, 2010 4:49 PM:
" And it must also be said that if the city of Benson was really comfortable and confident with the validity of this Paper Monster of theirs (the P & Z code ) they would be out going to town on all of the properties that don't meet compliance just within easy walking distance of City Hall . These people , though are the ones who don't show up at city council meetings because they know, have been tipped off , about the correct status of all of the dead things in Benson. Dead is dead but , the Benson P&Z code is still being represented as a valid living document ? What it really is Tyranny of The Gun. Did you get
that : Tyranny. So, better wake Up before the legal abuse syndrome in loco gov't here comes knocking at your door. "
that : Tyranny. So, better wake Up before the legal abuse syndrome in loco gov't here comes knocking at your door. "
Nick wrote on Jul 23, 2010 5:03 PM:
" Dekh:
Very well witten and researched. The News Sun was a nonpartisan publication prior to the present Publisher and Editor. Now it seems to specialize in selective reporting and giving itself awards. This whole issue seems to revolve around a contractor/builder Mayor who remains under his own cloud and is trying to get even and City Manager trying to make a name. "
Very well witten and researched. The News Sun was a nonpartisan publication prior to the present Publisher and Editor. Now it seems to specialize in selective reporting and giving itself awards. This whole issue seems to revolve around a contractor/builder Mayor who remains under his own cloud and is trying to get even and City Manager trying to make a name. "
D Vincis Code wrote on Jul 23, 2010 6:48 PM:
" Hello all and PLEASE let's remember that rainbows are real and visible but that doesn't mean God will let them shine on ignobal misdirection. Please let's get on with the burial of this rotten code document , supposedly revised in 2006, but never properly voted on , ever ! It was stillborn and well, just look around! you are living in a fantasy world if you don't see this. City council people here could make the right move to : fire the bad , bury the dead, and advertise for the good !Better that then the embarrassement of being required to testify under oath that : "oh, I didn't know that ?" or " I was just believing what the city manager told me." or " I was so impressed with their truck and their appearence ! " oh sure, .... and may santa land his sleigh on your cactus this christmas "
I know wrote on Jul 24, 2010 1:54 PM:
" Thelma,
when it comes to reporting, especially anything concerning Dianne Tipton and or her son or his park, you and Jane Amari and this new paper in general have shown a reckless dissregard for the truth.
I believe that is the deffinition of Liabel "
when it comes to reporting, especially anything concerning Dianne Tipton and or her son or his park, you and Jane Amari and this new paper in general have shown a reckless dissregard for the truth.
I believe that is the deffinition of Liabel "
Rick wrote on Jul 28, 2010 11:56 PM:
" There's code enforcement and then there's code thuggery. I think there might have been some provocation that led to these outcomes. Hope I'm wrong.
It’s wise for individuals and entities alike to choose their battles wisely. In my opinion it should never be a simple matter of black and white as in strict interpretations of code. I think the "squeaky wheel" approach still works best. No sense in trolling for trouble because a boot can swing two ways. "
It’s wise for individuals and entities alike to choose their battles wisely. In my opinion it should never be a simple matter of black and white as in strict interpretations of code. I think the "squeaky wheel" approach still works best. No sense in trolling for trouble because a boot can swing two ways. "
Charlie wrote on Jul 21, 2010 1:02 PM: