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

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