Pima County judge orders parties to cooperate in disclosure…”voluminous e-mails and other documents generated or received by [Cochise] county staff . . . over ten year period” …argument over meaning of “access” to adjacent Coronado National Forest, Supervisors’ conditional approval in Oct 2011

TUCSON, Arizona – A dispute about documents related to a civil lawsuit filed against Cochise County and its board of supervisors brought attorneys for both parties to a Pima County Superior courtroom on January 23.

The expedited hearing was requested by developer Easter Mountain Ranch (EMR), who filed suit last July after the county board denied approval a tentative subdivision plat for J6 Ranch, a 278-home gated community planned for the northern foothills of the Whetstone Mountains.

At issue, according to EMR’s attorney Evan Thompson, was his “unsuccessful” attempt to get Britt Hanson of the Cochise County Attorney’s Office to “voluntarily provide the documents, records and emails.” Thompson argued to judge Cynthia Kuhn that without the documents – which are “solely in the possession” of county officials – EMR cannot properly respond to a pending motion filed by the county defendants.

In a ruling from the bench during the hearing, Judge Kuhn granted EMR’s request for relief and ordered the parties to “cooperate and produce discovery needed for plaintiff.”  She also ruled that future disputes about specific documents are to be brought directly to the Court. The case is being heard in Pima County after the county defendants were granted a change of venue out of Cochise County.

EMR was seeking the documents in order to respond to a motion for summary judgment the county defendants filed December 15. The county’s motion asks judge Kuhn to rule – without a trial – in their favor on Count 1 of EMR’s lawsuit. Count 1 requests a court order forcing the board of supervisors to approve EMR’s tentative plat. The motion does not affect the other six counts contained in EMR’s complaint.

County Attorney argues that plaintiffs have all necessary documents

In the county’s summary judgment motion, Hanson argues that a Court can “grant relief only if the County Board of Supervisors’ denial of the tentative plat was arbitrary and capricious or an abuse of discretion.” He submitted 14 pages of arguments and 17 exhibits in support of the 12-page motion to show that the board’s July 2015 decision did not meet those criteria.

Thompson’s request for additional “correspondence, documents and records” was denied by Hanson on the grounds that “all of the necessary documents” had been filed with the motion. Thompson, however, argued to judge Kuhn that EMR is “entitled to the full record before it should be required to respond” to the motion, including documents related to the decade old project that are under the County’s “exclusive control.”

In her ruling, Judge Kuhn directed the parties to comply with court rules about discovery. She also extended EMR’s deadline for responding to the motion for summary judgment to June 1 to allow Thompson time to receive and review the additional documents. Once EMR responds, the county defendants will have an opportunity to reply, after which the judge can rule on the motion based on the filings or schedule a hearing on the matter.

rezoning process began in 2007 for 556 acre project, lawsuit filed 2016

The developer’s J6 Ranch property is located seven miles west Benson at the south end of J-Six Ranch Road, just east of the Cochise-Pima county line. EMR obtained title to the 556 acre parcel in 2006 and began the rezoning process in 2007. Its lawsuit against Cochise County and the board centers on one of the conditions – referred to as Condition Four – included in the board’s October 2011 rezoning approval.

Condition Four deals with the developer’s responsibility to “provide multi-purpose (vehicle, pedestrian, equestrian, etc.) legal access to federal lands.” The federal lands reference is to the Coronado National Forest (CNR) which is adjacent to the J6 Ranch parcel.

key argument: does “access” to forest mean “to” or “onto” ?

In 2015, the board of supervisors denied EMR’s tentative subdivision plat application due to a dispute over the interpretation of Condition Four. The developer’s plat application included access “to” U.S. Forest Service land but not “onto” federal land. And although a road could be built to the CNF, it would end at the boundary line because that area of the CNF does not permit roadways.

EMR filed a $10 million notice of claim against Cochise County in January 2016.

When the county board did not accept the claim the developer then filed its legal action in July 2016. In the lawsuit, EMR alleges that if the board intended the rezoning condition to provide access onto Forest Service land in an area that connected to existing roadways then the written zoning conditions which EMR accepted “could and should have said so.”

The county defendants allege that the developer was “well aware of the intention” of Condition Four as reflected in records of zoning hearings and board of supervisor meetings throughout the years. The County contends EMR is relying on a discrepancy between the wording of the board’s motion when it adopted the condition in October 2011 and the wording of a document later prepared by a county staff member. The document was filed with the Cochise County Recorder’s Office in November 2011.

County’s insurance doesn’t cover claims, legal bills for zoning disputes

According to Hanson, the county attorney’s office is representing the defendants in the EMR litigation because the county’s insurance coverage through Arizona Counties Insurance does not cover claims involving zoning issues.

Hanson provided most of the legal advice to county officials and staff throughout EMR’s zoning and plat efforts. Such advice is generally covered by attorney-client privilege or attorney work product doctrine. However, it is unclear whether those protections apply to Hanson’s communications with other agencies and individuals if EMR attempts to depose him about those specific actions.

Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com

Cochise County, Arizona – The check is in the mail. That is the message several Cochise County landowners received recently after the U.S. Dept. of Justice agreed to a settlement in a decade-long lawsuit involving land encumbered by easements granted a century ago to the El Paso and Southwestern Railroad Company. The legal action involved the federal government’s interference with the landowners’ property rights along what is now known as the San Pedro rail corridor, a 76 mile long, 200 feet wide strip of land stretching from St. David, through Charleston and Bisbee, and on to Douglas.

The landowners finally prevailed in their 2007 lawsuit – known as Ladd vs. United States of America – after a mediation session was held in Tucson in June. Notice of the settlement was submitted to the U.S. Court of Federal Claims in November and now the plaintiffs are waiting on the U.S. Dept. of Treasury to issue the checks.

The payouts to individual landowners are confidential, according to Meghan Largent, an attorney with Arent Fox, the law firm based in Washington D.C. that represented the landowners. However, Largent reported the total settlement – including interest and costs – “is just shy of $5 million” with the biggest component being “delay damages” which is interest that accrued on the original money the government owed to the landowners.

The lawsuit involved legislation passed by Congress in the 1980s known as ‘Rails To Trails’ (RTT). Prior to RTT, full interest to property covered by a railroad easement reverted back to a private landowner once rail service was abandoned along that part of the corridor. But passage of RTT unilaterally eliminated the landowners’ reversionary rights in many situations, allowing the easement land to be used for public recreation trails without regard to the property owner’s longstanding rights.

Although RTT survived multiple constitutional challenges across the country, the U.S. Supreme Court ruled that under the Takings Clause of the Fifth Amendment of the U.S. Constitution, the federal government must compensate landowners in RTT cases if there is a “taking” of their property interests.

In 2012, the Court of Federal Claims affirmed that the Ladd plaintiffs were “entitled to just compensation” after RTT provisions were invoked by the San Pedro Railroad Operating Company when it discontinued rail service on part of its corridor. The court ruled the compensation must consider not only the value of the easement land but also the diminished value of the landowners’ remaining property adjoining the rail corridor.

Despite the 2012 ruling, the parties had been unable to agree on what formulas to use for calculating that compensation until the recent court-ordered mediation. Attorney Largent explained the settlement price tag is so high because “the government chose to litigate this case for eight years (including two appeals) rather than settle.” That strategy, noted Largent, “cost the taxpayers significantly more than the government’s actual liability for the land it took.”

The settlement also includes the landowners’ attorneys fees, she explained, because the “government is required to reimburse” such costs in cases involving violation of the Takings Clause.

Owen Lonsdale is one of the Ladd plaintiffs through his ownership interest of the Miller Ranch Trust property south of Saint David. Lonsdale believes that “far too often” the federal government infringes “on state and personal rights” and can do so because they have the “advantage in litigation as they have our very own tax dollars to fund attempts at illegal land takings” such as Rails To Trails.

When asked whether he would go through the process again, Lonsdale explained he felt “it’s a matter of patriotic duty” to get involved when the government “oversteps its bounds.” Permitting such actions to go unchecked, he noted, “will slowly erode our rights and set precedents, allowing such grievous actions to continue in the future.”

As part of the settlement, the Ladd plaintiffs withdrew a request to certify their case as a class action. Instead, the government agreed to not challenge a second lawsuit Arent Fox filed on behalf of 14 new plaintiffs whose property along the San Pedro rail corridor in Cochise County may have been impacted by RTT legislation. Largent said the new lawsuit – referred to as Lindstrom vs. United States of America – should be resolved quickly based on the facts already demonstrated in the Ladd case.

Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com

To read the full story in Cochise County Record click here.

EDITOR’S NOTE: for more information about this matter, see this story published by the Real Estate Daily News on Sept 12, 2016 

By: Terri Jo Neff

Ranch residence access arguments may result in ruling with statewide implications

When Danny and Denice Hatch bought 40-acres in rural Willcox in 2003, they knew a 60-foot wide strip of their land was subject to a right-of-way easement. The Hatches paid the taxes on all the land and used a portion of the easement for a dirt driveway to get to their house on North Sheppard Road – as did the previous owner. The rest of the easement property remained undisturbed desert.

All was good for more than a decade. Then in December 2013, neighbors Ronald Klump and Dayla Heap began using the Hatch driveway and the rest of the easement to access their home on North Johnson Saddle Road, part of a 300-acre parcel owned by Roy Klump.

A conflict quickly arose, resulting in numerous calls to the Sheriff’s Office as well as allegations of harassment, fence tampering, criminal damage, and missing horses. Now, nearly three years after the dispute began, a three judge panel of the Arizona Court of Appeals (Division Two) will hear oral arguments in the case known as Danny R. Hatch Jr. v Ronald J. Klump.

The appellate judges have been asked to consider whether the 1970s era easement deed created a public roadway across the eastern edge of Hatch’s property as Klump claims, or if a Cochise County Superior Court judge erred in ruling the public has a right to drive on Hatch’s property. Klump warns that if the Appeals Court “reverses the trial court, the impact that such a ruling could have on many other publicly dedicated roadways” across the region could be “undesirable and widespread.”

Parties ordered to “behave themselves”, keep gate unlocked

Court records show that to reach their house, Klump and Heap had been driving along a gas company’s pipeline road, but that access was closed off in late 2013.  Klump previously (prior to 2004) used the Hatch easement  to check water lines for his cattle, and now that route is the only option available.

When the parties could not come to an agreement, Hatch’s attorney Carl MacPherson filed a motion in Superior Court on February 21, 2014 for a temporary restraining order to keep the neighbors off his land.  Klump countered that the easement along the eastern edge of Hatch’s parcel always included a public roadway even if the public had not used it for several years.

After holding a evidentiary hearing, judge John Kelliher ruled March 6, 2014 that “this appears to be a public easement / right of way” and therefore the Court “cannot grant the requested temporary restraining order / preliminary injunction.”  The parties were ordered to “behave themselves” and keep the gate across the driveway unlocked.

A jury trial was scheduled for April 2015 but on March 5, 2015 Klump filed a motion for summary judgment, asking the judge to rule in the neighbors favor because “there are no material facts in dispute” that would require a trial.  Hatch responded that if the easement created a public roadway, those rights were extinguished by adverse possession, based on the property owner’s longtime, exclusive use of the right-of-way.

On April 20, 2015 judge Kelliher issued an Order of Summary Judgment in Klump’s favor. Only one sentence addressed his finding. The judge also ordered that “defendants are entitled to an award of attorney’s fees and costs” and instructed Klump to submit an affidavit of costs. In the Final Judgment issued May 26, 2015 by Kelliher, he ruled “there is a public easement for ingress and egress” for the 60 feet wide strip of Hatch’s property and awarded the neighbors “all rights for use of the easement.”  The judge also barred Hatch and future owners “from interfering with the use of the easement for purpose of ingress and egress.”

Hatch was ordered to pay Klump $5000 for attorney fees. Hatch filed a motion May 29, 2015 asking Kelliher for a new trial, asserting the “trial court erred as a matter of law by interpreting the easement as a public roadway.” The judge denied that motion July 28, 2015 and Hatch appealed the decisions soon after.

Did easement create public roadway?

The easement wording includes: “…does hereby grant and convey to the public for ingress and egress and public utilities, an easement to construct, operate, and maintain utilities and appurtenances across, over and under the surface of the premises hereinafter described…”

The Hatch appeal brief, filed by Patrick Lopez of Mesch, Clark & Rothschild, notes Kelliher did not cite authorities or explain how he came to his determinations, and points out the word “roadway” is not included in the easement document. Hatch also contends that although the easement refers to ingress and egress, those words refer to “access to and egress from the easement to permit normal operation of the public utilities.” Therefore, the presence of the words “cannot create a dedication of a public roadway as a matter of law,” citing Kadlec v. Dorsey Ariz. (2010).

Kelliher’s ruling that a public roadway exists, states Hatch, runs counter to the rights granted to public utilities to construct on or along the easement property. “Utility poles, power lines, and other utility related obstructions and appurtenances may be constructed or placed within the easement,” notes the brief, supporting the position the land “could not have been intended for a public roadway.”

In the answer to the appeal, Klump’s attorney, Jeanna Chandler Nash of the Udall Law Firm, argues that the easement deed specifically provides a right-of-way easement “to the public” and therefore Hatch does not “have the right to exclude others from using the Easement as a roadway,” citing Scalia v. Green Ariz. 2011. Klump further argues that the public does not lose access to the right-of-way if the land has only been used as a private driveway in recent years.

Was award of attorney’s fees appropriate?

The appeal answer says judge Kelliher acted appropriately in awarding summary judgment and attorney fees to Klump, and the judge acted within his discretion in denying the Hatch motion for a new trial.

The Appeals Court is being asked to “reverse the trial court Judgment in (Klump) favor, and direct the trial court to enter Judgment in favor of Hatch.” There is also a challenge to the trial court’s ruling that Hatch must pay $5000 attorney fees to Klump. The appeal asks for the judgment of fees to be reversed, and in its place a judgment be issued awarding attorney fees to Hatch.

In response, Klump argues judge Kelliher was correct in his “interpretation of the Easement Deed” and was within his discretion in denying Hatch a new trial. With respect to attorney fees, Klump notes “the Hatches failed to raise the argument” with the lower court that a fee award was improper and therefore should be “precluded from raising the argument” on appeal.

Oral Arguments, November 2 – Open to public

The November 2 oral arguments will allow each side to argue the case and answer questions from the appellate judges. The hearing is open to the public and starts at 3:00pm in the Court’s chambers on the third floor of 400 West Congress Street in Tucson.

For full article Click Here.

Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com