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Judge rules in favor of Kendrick


Published: Tuesday, August 17, 2010 6:36 PM CDT
City: Trailer permit still not a go

Thelma Grimes/San Pedro Valley News-Sun

Cochise County Superior Court Judge Stephen Desens ruled against the City of Benson last week, calling Section 16 of the city code, passed in 1997, invalid because officials did not follow proper procedure.

The ruling was a victory for local business owner Jay Kendrick, who has challenged the city's refusal to approve a permit for a new manufactured home on lot 27 of the Stage Coach Trails manufactured-home park.


"Mr. Kendrick is relieved by the court's decision and hopes that it will help bring a resolution to this matter," said John Hinderaker, of the Lewis and Roca Law Firm. "He has no desire to continue litigating with the city. He simply wants to continue running his business the same way he has since he bought Stagecoach Trails in 2003. The city's reinterpretation of its zoning regulations never made any sense. The city's reinterpretation makes it impossible for Stagecoach Trails and other parks like it to replace old, run-down homes with new homes, and thus it is contrary to the city's stated objectives. Mr. Kendrick hopes that in the wake of this decision the City Council will reconsider the matter and return the interpretation that served it well for over a decade."

Desens ruled against the city, voiding the rules and regulations outlined in Section 16 because the city staff and council in 1997 did not follow proper procedure in notifying the public about upcoming changes.

According to City Attorney Michael Massee, notice of the Planning and Zoning hearing in 1997 was mailed to the owners of manufactured home and RV parks, but Desens ruled that owners of vacant property that could potentially be developed into manufactured-home parks were also entitled to notice.

In addition, Desens ruled that Arizona statutes require 15 days notice prior to the hearing, and the city gave an eight-day notice.

In a Aug. 12 press release, Massee said, "Obviously, we are disappointed with this ruling."

Despite Desens' Aug. 11 ruling, the city still doesn't plan to approve a permit for the manufactured home on lot 27, which currently sits on wheels at the property.

Massee said prior to last Wednesday's hearing, he requested Public Works Director Brad Hamilton to review the request for permit and make his decision without using code specifications in Section 16.

Hamilton still rejected the permit request, citing an inadequate site plan.

In the July 14 letter, Hamilton said, "The plan submitted does not show a rear-yard setback measurement as required. The rear-yard setback shall be measured to a designated space line. Also, indicate the existing utility easement at the rear on the site plan. Note that the rear-yard setback in the R-3 district is 10 feet."

Kendrick's attorney, Hinderaker, said the city's requirements are unfair, and would mean his client would never be able to put another home on his property.

Despite city claims that fire safety codes are a primary concern, Hinderaker said Kendrick meets all state fire codes.

"The city's reinterpretation is not supported by case law and it has nothing to do with fire safety. The fire code governs fire safety and Stagecoach Trails complies with the fire code," he said.

City Manager Glenn Nichols said the top priority is the health and safety for park residents.

"What has been happening is that in many cases newer, bigger units have replaced older, smaller units and the space sizes have remained the same," Nichols said. "This means that some parks have gotten more crowded, which has created additional fire concerns because the homes are located substantially closer to each other than before."

Nichols further stated that in some cases, fire access roads within the parks have been blocked off.

Massee said the city will consider appealing Desens' ruling at a later date.

In the meantime, Nichols has already ordered city staff to take action.

"We expect that we will begin the process to re-adopt the ordinance the judge struck down right away," Nichols said. "We may also decide to go ahead and re-adopt all zoning ordinances and amendments that have been adopted since 1988 just to be safe."

In the process, Nichols said they would solicit input from local manufactured-home park owners.

The city has also been ordered by Desens to pay Kendrick's more than $50,000 in legal fees. The exact amount has not been determined.

Hinderaker said at this point, Kendrick has no intentions of filing additional lawsuits against the City of Benson.



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The following are comments from the readers. In no way do they represent the view of bensonnews-sun.com.

Bob Bray wrote on Aug 18, 2010 9:44 AM:

" “Grand Marshal”

There was a local man who years before was a regular on a western TV series. He walked around Benson dressed similar to how he dressed on the TV series. My wife originally had no idea who he was, but being polite spoke to him one day in Safeway. He ask if she wanted his autograph. She thought he was looking for a handout. She later learned who he was. He was a nice person and pleasant to talk to. A Benson committee decided he should be Grand Marshal of one of the local parades since he had been on TV. He sat in the back of a convertible dressed in his western garb and waved to the crowd. Most of the crowd had no idea who he was. have not seen him in some time, I don’t know if he moved away from the area. The sad part in my mind was that he was made Grand Marshal. He had not accomplished anything to help Benson or its citizens.

Benson has many heroes who have never been Grand Marshal in any Benson parade. Many folks are retired military who have given years to their country. Educators, medical, civil servants and law enforcement who have done the same. Most talk little of their past. I know one local person who was a top civilian administrator at the Pentagon and BIA, among many other accomplishments. Most local folks had no idea.

Though I doubt if he will ever be named Grand Marshal. Benson has another local hero who stood up for what he knew was right and won. He deserves a lot of credit for taking on the City of Benson. The city made things very hard for him. Fining him daily, enduring much criticism from city officials, slanted newspaper opinions, finger pointing neighbors and huge attorney fees. He stood fast under the pressure. Why? Because Jay Kendrick is not a Safeway cowboy. He showed the city is not a all powerful entity who everyone must bow or be punished. City officials works for the citizens of the city, something they must learn.

Benson voters have every right to be upset by the actions of the City of Benson, because citizens funded their foolishness. The three city officials who pushed their vendetta against Kendrick and his mother did nothing but divide Benson for their own satisfaction. They should not remain in office.



Thank you

Mr. Kendrick. "

Change of leadership needed wrote on Aug 18, 2010 10:58 AM:

" The only explanation for the City of Benson is that Benson officials are being irrational. They are blooming out of their minds.

This is like former Mayor George Scott's attitude of we can do whatever we want and we will prove to you that we are in charge even if not in the right. We have the power.

You keep going Nichols and Fenn and Massee and you will cost the taxpayers of Benson even more oodles of money for your ego trips and personal vendettas'.

There comes a point when enough is enough and to go beyond is proof of poor judgement at best and possibly the misuse of authority. That point was, in my opinion, surpassed a long time ago . "

Is this another waste of Money wrote on Aug 18, 2010 12:07 PM:

" Mayor and Council you need to get over it . You talk about Health and Safety.

Well I believe if you put a newer home in that takes care of the Safety Issure. The older homes have aluminum wireing and I do believe that is unsafe so why wouldn't you want newer homes in there

As far as Health Concerns Put the numbers back up on the Streets.

So Emergency Vehicles can find the person they need to get too.

Better Yet lets vote the City Council and the Mayor out of Office "

Non-Straw Tom wrote on Aug 18, 2010 2:19 PM:

" I was working to get my comments in first but they didn't want to give the authentic Tom F that priviledge but, hey, anyway. ... just for the record I had no comment to make about the
City Attorney in last weeks comments section following : "arguments ongoing in Kendrick suit " That was some other Tom F.... but it doesn't matter too much unless that Tom F has been a victim of the city's name calling as I and Mr. Kendrick have been. ( to be continued ) "

Nana wrote on Aug 18, 2010 3:37 PM:

" As expected some will be upset at Superior Court Judge Desens decision in the Stage Coach Trails, trial. They will place blame on many. Actually some locals have themselves to blame. Because Mr. Kendrick and Mrs Tipton failed to recognize these people’s Benson birthright superiority it made some locals irritated. City officials already upset with Mrs Tipton wanted violations to be true, so they went digging, but found only fools gold. The fined Mr. Kendrick daily and fully expected him to fold.

Personal likes and dislikes have nothing to do with actual law. Some Benson citizens were willing to take up torches, axe handles and pitchforks against Mr Kendrick and his mother simply because the two of them did not bend to their will. Others screamed and threw fits. Because of a induced dislike for Mr. Kendrick’s mother, the city decided to push the cause. Many lemmings fell in line, led by the pied piper mayor and city manager and endorsed by the newspaper.

The people who started this mess should go back to flying their flags upside down and waiting for weapons of mass destruction to be found in Iraq. In the meantime I wonder if the city will inspect the properties of the instigators and cite any and all violations. Lets hope so. Fair is fair and it may take some of the blame away from the city officials who fell into the trap. "

Non-Straw Tom wrote on Aug 18, 2010 4:22 PM:

" I submitted comment s , sometime ago , to this newspaper , and this time I will add verification for your readership. I hope this helps clear up any identitiy issues. I am not trying to make a name out of this story, Only I wanted to clear up what someone might be thinking . thank you. "

Power Trip wrote on Aug 19, 2010 4:55 AM:

" Time to vote these clowns out of office. "

Think about it wrote on Aug 19, 2010 12:22 PM:

" “The city has also been ordered by Desens to pay Kendrick’s more than $50,000 in legal fees.”

“Despite Desens’ Aug. 11 ruling, the city still doesn’t plan to approve a permit for the manufactured home on lot 27, which currently sits on wheels at the property.”

“Massee said the city will consider appealing Desens’ ruling at a later date.”


IS THE CITY SHOOTING FOR PAYING OVER $100,000 IN KENDRICK’S LEGAL FEES?
ARE THEY INSANE? YOU LOST! GET OVER IT. DO NOT THROW ANY MORE OF OUR MONEY AFTER A LOST CAUSE. GIVE IN, DROP IT NOW!!!!!!

There will also be staff salaries, outside legal fees and court costs to pay.

Lets hope there are some on the city council that will put a stop to this nonsense.

The city attorney works for the full city council not just the mayor and city manager!!!!

City Council, please put a stop to this nonsense. "

Resident wrote on Aug 20, 2010 2:52 AM:

" Funny the city does not have the money to spend on the planned park upgrades for children. Yet they have the cash to blow harrassing people about minor issues..I hear a disc golf course could be put in Lions park for less than 1/3rd of what you wasted on just Kendricks lawyer and court fees. PRIORITIZE. "

Non- Straw Tom wrote on Aug 20, 2010 12:13 PM:

" I thought this city would be a good place to approach , study ,
and then understand the strength's and weeknesses of landlordism and
pecking orderism but then I was subduced by it , and coerced by it , and placed under it's spell and that was not good. This city is more then just a corporation and so it's story needs to be told , as does Arizona's and for many reason's so that the people may learn from it' and find leadership here and elsewhere::: to keep the horse's here where they belong, in front of the carts, not behind them . "

Non-Straw Tom wrote on Aug 20, 2010 1:54 PM:

" to read, to dream, to read from history once more ! and then know why you are doing it. Yes, because then things can fall into place and if you think on it a little, you might ? say : "well I am a legal American Citizen under the Constitution and my rights are reserved and so ,if I were you I would be planning to loan you . Jesse' Ventura's NEW Book . Then open this book to page 11 and read about the attempt to RE-CALL a President of these United States without any action from Congress ! or The Hign Court ! or by act of Impeachment . It's facinating history and a good warm-up for , you guessed it Chapter 11. Chapter 11 is about a Powerful American family , and it's proxies , who really thought they could fool "all of the people " in America but they haven't and they didn't in 2001 either. What they and their proxies did do was , and is , defeatable but but the devil is in the details ! Now the "Restore America Plan" looks very good for this . And Now, if some Wal-Mart store in Arizona could just form a Worker Organization this also would send an important message to the world of real people ! but , Wal-Mart has a history of closing stores where worker's organize... not a bad idea either. So, The Chamber's of Industry need to get rolling and create job's , job's and more job's wherever a Wal-Mart dies. Yup roll'em on back ! Jobs for American's , thank you. "

Ben wrote on Aug 20, 2010 5:20 PM:

" Non-Straw Tom:

Thanks for your words of wisdom. Few if any have any idea what you are talking about. But you got your chance to say it. Keep up the good work. Give us a hint, does it have anything to do with the news article? We are waiting on your next input.

PS: Good job, Mr Kendrick. Lets hope it will change the dictatorship at city hall. "

Dekh wrote on Aug 20, 2010 7:59 PM:

" Nichols said,

"What has been happening is that in many cases newer, bigger units have replaced older, smaller units and the space sizes have remained the same," Nichols said. "This means that some parks have gotten more crowded, which has created additional fire concerns because the homes are located substantially closer to each other than before."

If this is true he must be talking about some other parks because it sure isn't this one. Are they being cited and sued?

If the homes meet all of the fire safety set backs then they are safe. Mr. Kendricks homes meet and exceed all fire safety set backs.

Thelma Grimes was given a copy of the measurements between each and every homes in Mr. Kendricks park. Why didn't she print it or at least refer to it.

You are unworthy of a reporters credentials Thelma. Shame on you. You are more than bias. You are a devoted follower of Fenn, Massee and Nichols. The heck with truth and public record. Right ??????????? "

Martha S. wrote on Aug 21, 2010 3:44 PM:

" I hope everyone e-mail or calls members of the City Council and lets them know the action taken against against Mr Kendrick was unacceptable. The amount of time wasted by city employees and the huge amount of money spent should never be allowed to happen again.

Those who represent Benson should hang their heads in shame. All involved should apologize in public to the citizens of Benson. These acts have left a rotten taste that will linger for a long time.

E-mail addresses and phone numbers are listed under City of Benson Arizona "

John T. wrote on Aug 24, 2010 1:53 PM:

" Well, Its sad but true. The people of Benson and surrounding areas need to quit voting on emotions, and investigate those officials they are putting into office before electing them. Get involved, and vote for good honest officials. were all at fault if you don't. "

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