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Kendrick decision brings mixed reaction
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Thelma Grimes/San Pedro Valley
Following Cochise County Superior Court Judge Stephen Desens' ruling to invalidate Section 16 of the Benson Planning and Zoning codes, most City Council members are still in shock, and appear unsure on what the next move will be.
Reactions to the Aug. 11 ruling were mixed with some council members surprised, and others, such as Mayor Mark Fenn, saying they expected it.
Desens ruled Section 16 of the city code is invalid, because when a former City Council passed it in 1997, proper public notification procedures were not followed.
More specifically, Desens ruled that business owners impacted by the code change should have received a notice 15 days prior to the meeting.
In this case, Desens said evidence proved business owners were notified eight days before.
The issue was brought before the county court after local business owner Jay Kendrick hired the Tucson law firm Lewis and Roca to argue the city is being unfair by rejecting a permit to place a new trailer on lot 27 of the Stagecoach Trails Manufactured Home Park.
After Kendrick lost an appeal to the locally-appointed Board of Adjustment (BOJ) panel, he hired a new lawyer and adopted a different argument.
Prior to the filing in Cochise County Superior Court, Kendrick argued to the BOJ that he shouldn't have to follow provisions outlined in Section 16 because his property is grandfathered.
Fenn said once Kendrick's attorney changed strategies, it caused some concerns.
"The ruling wasn't completely unexpected. Once I saw the direction they were heading, I got a little nervous," he said. "The ruling is frustrating. You think things are in place that you thought were done correctly, and a judge comes in and rules they weren't."
While Fenn wasn't excited about the idea of the city's appealing the ruling and wished for a resolution to the situation, other council members are not ready to throw in the towel.
Councilman John Lodzinski said he was shocked by Desens' ruling, and wants more information before the city proceeds.
Lodzinski and fellow council members David Lambert and Al Sacco said they want to see the official ruling in writing before deciding the city's next move.
"Back when this code was approved, I am sure everyone meant well," Lodzinski said. "Maybe there was a slip-up. I don't know. I just hope the judge wasn't applying current laws to a code that was adopted in 1997. We will review it to see if it's worth appealing."
Lodzinski and Sacco said there are many unanswered questions.
Councilwoman Lori McGoffin said she wasn't surprised the ruling went against the city, but for different reasons than Mayor Fenn.
"Of course we lost; judges never rule in favor of the government," she said. "I had hoped we would have all our ducks in a row when it came time for court. But, ultimately we have to enforce the codes we have in place."
Vice Mayor Toney King said he was shocked the city lost, and felt City Attorney Michael Massee should have been more prepared before the Aug. 11 hearing.
King said Massee should have been aware that 15 days' notice is required, and that the former city staff had missed the mark by seven days.
"I just feel we should have been aware of this fact before we went to court," he said. "I feel this miss by the city attorney has cost the city. I was just surprised when we lost."
Not only does the ruling invalidate a code that has been on the city books for 13 years, it also means the city will be footing the bill for Kendrick's legal fees, estimated to be more than $50,000.
King said the council would have to continue discussion and decide at a later date if an appeal is the next logical step.
Councilman Lambert said it's too early for the council to make any decisions, agreeing with other council members that he wants to see the ruling on paper.
"There are a lot of things we need to work out," he said. "I was surprised by the ruling. It looked like everything had been passed per the statutes."
The recent ruling has also left city staff and council members unsure about other city codes adopted since 1988.
Several council members agreed that city staff should review old cases, make sure they were passed properly, and if not, action should be taken.
King said he thinks a third-party consultant should be brought in to make sure all codes are in order, and were adopted properly.
Following Cochise County Superior Court Judge Stephen Desens' ruling to invalidate Section 16 of the Benson Planning and Zoning codes, most City Council members are still in shock, and appear unsure on what the next move will be.
Reactions to the Aug. 11 ruling were mixed with some council members surprised, and others, such as Mayor Mark Fenn, saying they expected it.
Desens ruled Section 16 of the city code is invalid, because when a former City Council passed it in 1997, proper public notification procedures were not followed.
More specifically, Desens ruled that business owners impacted by the code change should have received a notice 15 days prior to the meeting.
In this case, Desens said evidence proved business owners were notified eight days before.
The issue was brought before the county court after local business owner Jay Kendrick hired the Tucson law firm Lewis and Roca to argue the city is being unfair by rejecting a permit to place a new trailer on lot 27 of the Stagecoach Trails Manufactured Home Park.
After Kendrick lost an appeal to the locally-appointed Board of Adjustment (BOJ) panel, he hired a new lawyer and adopted a different argument.
Prior to the filing in Cochise County Superior Court, Kendrick argued to the BOJ that he shouldn't have to follow provisions outlined in Section 16 because his property is grandfathered.
Fenn said once Kendrick's attorney changed strategies, it caused some concerns.
"The ruling wasn't completely unexpected. Once I saw the direction they were heading, I got a little nervous," he said. "The ruling is frustrating. You think things are in place that you thought were done correctly, and a judge comes in and rules they weren't."
While Fenn wasn't excited about the idea of the city's appealing the ruling and wished for a resolution to the situation, other council members are not ready to throw in the towel.
Councilman John Lodzinski said he was shocked by Desens' ruling, and wants more information before the city proceeds.
Lodzinski and fellow council members David Lambert and Al Sacco said they want to see the official ruling in writing before deciding the city's next move.
"Back when this code was approved, I am sure everyone meant well," Lodzinski said. "Maybe there was a slip-up. I don't know. I just hope the judge wasn't applying current laws to a code that was adopted in 1997. We will review it to see if it's worth appealing."
Lodzinski and Sacco said there are many unanswered questions.
Councilwoman Lori McGoffin said she wasn't surprised the ruling went against the city, but for different reasons than Mayor Fenn.
"Of course we lost; judges never rule in favor of the government," she said. "I had hoped we would have all our ducks in a row when it came time for court. But, ultimately we have to enforce the codes we have in place."
Vice Mayor Toney King said he was shocked the city lost, and felt City Attorney Michael Massee should have been more prepared before the Aug. 11 hearing.
King said Massee should have been aware that 15 days' notice is required, and that the former city staff had missed the mark by seven days.
"I just feel we should have been aware of this fact before we went to court," he said. "I feel this miss by the city attorney has cost the city. I was just surprised when we lost."
Not only does the ruling invalidate a code that has been on the city books for 13 years, it also means the city will be footing the bill for Kendrick's legal fees, estimated to be more than $50,000.
King said the council would have to continue discussion and decide at a later date if an appeal is the next logical step.
Councilman Lambert said it's too early for the council to make any decisions, agreeing with other council members that he wants to see the ruling on paper.
"There are a lot of things we need to work out," he said. "I was surprised by the ruling. It looked like everything had been passed per the statutes."
The recent ruling has also left city staff and council members unsure about other city codes adopted since 1988.
Several council members agreed that city staff should review old cases, make sure they were passed properly, and if not, action should be taken.
King said he thinks a third-party consultant should be brought in to make sure all codes are in order, and were adopted properly.
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The following are comments from the readers. In no way do they represent the view of bensonnews-sun.com.
Bert R wrote on Aug 25, 2010 2:41 PM:
" Excuses, excuses, excuses. The court was against us. The city attorney did not do his job. “The ruling wasn’t completely unexpected. Once I saw the direction they (Kendrick) were heading, I got a little nervous,” the Mayor said.
Then some may want to try again. Is it not enough that the city went after Kendrick in the first place? It will cost the city taxpayers over $50,000.00 just to pay for Kendrick’s attorney fees. It also has cost court costs and many hours of city staff time, adding thousands of dollars more. So rather then admit they made a mistake to begin with, they want to try again. Oh well its not out of their pocket!!
They were elected to lead, not rule. As much as some may want, they are not the final word. The Mayor and Business Manager are to follow the law just as like rest of us. Just because the actions of some person displeases them, they are not entitled to punish them at will. The Mayor will be out of office soon. Maybe it is time for the Business Manager to go also. Benson does not need vigilantes. "
Then some may want to try again. Is it not enough that the city went after Kendrick in the first place? It will cost the city taxpayers over $50,000.00 just to pay for Kendrick’s attorney fees. It also has cost court costs and many hours of city staff time, adding thousands of dollars more. So rather then admit they made a mistake to begin with, they want to try again. Oh well its not out of their pocket!!
They were elected to lead, not rule. As much as some may want, they are not the final word. The Mayor and Business Manager are to follow the law just as like rest of us. Just because the actions of some person displeases them, they are not entitled to punish them at will. The Mayor will be out of office soon. Maybe it is time for the Business Manager to go also. Benson does not need vigilantes. "
Nitwits all wrote on Aug 25, 2010 8:16 PM:
" The city council could have had a special meeting with Kendrick and P&Z officials to go out to the park with a measuring tape .
They could have even held the tape and written down the measurements and then they could have applied it to the now non-existing code.
They could have done their own thinking.
Thelma could have gone with them and taken notes for an article.
These people were shocked? Why? Where have they been? And now some of them want to be mayor? Really!
Lodzinski is an engineer type and he can't use a measuring tape? Mayor Fenn is a builder and he can't measure?
"Judges never rule in favor of government" says Lori McGoffin? Sounds like an excuse that Massee would sell you and you would buy.
Lori. "Hello" Judge Desens ruled in favor of the law.
King says we need a third party consultant? No! You just need competent and honest leadership.
This has been an expensive and sad fiasco. "
They could have even held the tape and written down the measurements and then they could have applied it to the now non-existing code.
They could have done their own thinking.
Thelma could have gone with them and taken notes for an article.
These people were shocked? Why? Where have they been? And now some of them want to be mayor? Really!
Lodzinski is an engineer type and he can't use a measuring tape? Mayor Fenn is a builder and he can't measure?
"Judges never rule in favor of government" says Lori McGoffin? Sounds like an excuse that Massee would sell you and you would buy.
Lori. "Hello" Judge Desens ruled in favor of the law.
King says we need a third party consultant? No! You just need competent and honest leadership.
This has been an expensive and sad fiasco. "
Duhhhhhh wrote on Aug 26, 2010 1:49 PM:
" Now you're getting it people. It appears that this has opened a few eyes as to what this bunch is really about. "
Wondering wrote on Aug 26, 2010 1:50 PM:
" Why would there be a mixed reaction? The city did a stupid thing. It backfired. Even the Mayor said the “The ruling wasn’t completely unexpected.” They are trying now to fix blame. All are guilty. Some more then others. Stop kicking a dead horse and learn from your mistakes. More important, don’t make the same mistake again. "
Truth wrote on Aug 27, 2010 11:46 AM:
" TerrY:
There were a couple on the council making clear and concise decisions and being open about what they did. They upset the Mayor and others. This newspaper and others orchestrated a campaign to get rid of them. They were recalled. In fact Mr. Kendrick’s mother was one of them. She is still feeling the revenge for doing the right thing and this time they went at her through her son. Benson’s good old boys want non-thinking easily swayed people in office "
There were a couple on the council making clear and concise decisions and being open about what they did. They upset the Mayor and others. This newspaper and others orchestrated a campaign to get rid of them. They were recalled. In fact Mr. Kendrick’s mother was one of them. She is still feeling the revenge for doing the right thing and this time they went at her through her son. Benson’s good old boys want non-thinking easily swayed people in office "
Will you be next wrote on Aug 28, 2010 12:43 PM:
" The city had no legal standing, they were only concerned on vengeance.
They fought the law and the law won.
The sad thing is they were so upset about someone who only wanted the rights the law granted. It was NOT his fault the city made errors in procedure. After all the cost to the taxpayers not one elected or appointed city person will suffer. You can bet they will continue to seek revenge on Mr Kendrick. He was marked before, now they must get even.
Beware you may be next!!!!! Does Benson need vigilantes running things? "
They fought the law and the law won.
The sad thing is they were so upset about someone who only wanted the rights the law granted. It was NOT his fault the city made errors in procedure. After all the cost to the taxpayers not one elected or appointed city person will suffer. You can bet they will continue to seek revenge on Mr Kendrick. He was marked before, now they must get even.
Beware you may be next!!!!! Does Benson need vigilantes running things? "
Terry wrote on Aug 24, 2010 11:15 PM: