Saturday, July 15, 2017

Letter to Prescott City Council re the Crossings at Willow Creek and Deep Well Ranch

From: []
Sent: Saturday, July 15, 2017 10:23 AM
Subject: Deep Well Ranch and The Crossings at Willow Creek

Dear Prescott City Council Members
See below to the Editor of the Crossings

On the off chance you are aware of the contact details for Mr. Chamberlain, could you please extend an invitation to him to attend the Crossings at Willow Creek Members meeting. This is members only but I would be more than happy to make an exception for him personally. Note that press attendance is acceptable subject to prior accreditation

I’ve also copied Jennings Strouss on the off chance they still have his contact details
To the Prescott Courier
Dear Editor
Your recent article about City Council and 10,000 new homes for Prescott was fascinating.
Chamberlain & Myers were the original developers of the Crossings at Willow Creek which is tottering near receivership.
There was no real transition from developer in that subdivision.
In light of the Members only meeting taking placed chaired by me for Members of the Crossings on Monday July 17th, I would like to extend an invitation to Mr. Chamberlain to attend and offer any ideas about cleaning up a mess which I believe could result in a bankruptcy filing by the City of Prescott

John Sellers

John Sellers
Cave Creek Arizona
Tel: 928 310 8220

Tuesday, July 11, 2017

The Perfect Storm in the Crossings at Willow Creek for the City of Prescott - or any other municipality

Well the principle, in a nation of checks and balances, is that you have two levels of local government:
  • A body of elected officials, be they Council Members, Supervisors, or Mayors. They perform a supervisory policy role. They do not meddle in the detail, at least in theory.
  • The staff who implement, get their hands dirty, and translate policy into action relying on well established procedures.

Under this theory, policy decisions are immune from law suits under the Sovereign Immunity Principle as governments, like the Pope, can do no wrong. However, the operational decisions implementing policy using procedures are not immune. So, if a municipality does not respect the procedures and causes damage, they can be sued. Note that most activist groups such as the Centre for Biological Diversity never sue on fundamentals. They attack Government process – and usually win. Same with CEQA in California.
If elected officials and staff trust each other, in a perfect world, this delegation based system works fine. The City Manager acts as a buffer insulating the elected officials from liability. Well of course no one trusts anybody and we know local politicians run down from the podium, or a secret meeting, and meddle. These tensions between staff and elected officials as to who runs the sanitarium translate into what we call the “Kremlin vs the KGB” issue. Chaos and gridlock. Prescott is the poster child for how NOT to do it.
Hence Marlin Kuykendall in the KayAnne Riley case where he dabbled in her civil rights without approval. And in the case of the Crossings, a completely different plat being recorded compared to the one approved. The difference being a major thoroughfare being added running through the subdivision through a lethal low water crossing just waiting to trap the proverbial brain surgeon with wife and five children. Click HERE to see a close call. Click HERE to see what the wash can look like. This is nothing compared to the night before when video could not be taken. Then the water was at least 5ft higher with a 10ft standing wave just downstream.
We also know from the Deanna Davis case against Prescott Valley, click HERE, that if a municipality approves a planning decision, does not follow procedures, and citizens are put in harm’s way, in or around a flood plain, and a house washes away, the municipality is liable. In the Deanna Davis case, she lost in Yavapai Superior Court but won in the Arizona Appeals Court. It was never challenged beyond that because Prescott Valley presumably was smart enough NOT to take it to the 9th Circuit in San Francisco. The result we believe is that most Municipalities rushed to take out insurance without flood plain exclusions. In Prescott’s case via a master policy with Travelers.
We flip now to the KayAnne Riley case where almost ALL the action was in the US Supreme Court 9th Circuit where Prescott fought the wrong battle. I know because I attended every day of the two-week trial. The City was so keen to drag it out, they fought tooth and nail on the wrong issue – sovereign immunity. In the end, the precedent was established by the whole 9th Circuit, unanimously, that the City did not have sovereign immunity. The City won the eventual fight over civil rights violations but had already lost the war which could now seal the City’s fate over sovereign immunity.
Every Municipality is now on notice that when politicians intervene, in the Crossings or KayAnne Riley’s case, or any other case, they can be sued. To be clear, there is now no further appeal, except to the full US Supreme Court, if a Municipality wants to use the defense of sovereign immunity. Over almost any issue.
So, Prescott is now facing the perfect storm.
  • We know they can be sued like Prescott Valley over flood plain issues allowing the subdivision to be approved in the first place. Deanna Davis proved that.
  • The illegal plat procedures compound the issue as there never was a definitive Declaratory Judgement clearing up title.
  • The City’s pipes are not buried in the Crossings common areas in accordance with the easements in favor of the HOA and no federal permits were obtained for the US Waters work by the City. See HERE

               As there would be no claim for damages, my belief is it would be a simple enforcement trip to the Federal Courthouse without any statutory waiting period.
  •  Finally, I doubt there is anyone who really knows the market for a PPP financing option for the Big Chino better than me. I helped the City launch the PPP solicitation in 2009. Professionally our views on the options were clear then. Click HERE

In the Trump era, it’s even clearer. I may be right, I may be wrong, but I’m not in doubt. There will be no PPP option for the Big Chino without fixing the Crossings, both legally and engineering wise. And there certainly isn’t a traditional financing option.  This places a huge black cloud over the City’s future which CNN Money Magazine will not be able to help with, fake news or not.
City Council laughed when I told them a few years back they could be forced to buy back the subdivision from the owners and should hire bankruptcy counsel.  That would be a big number which could exceed not only their Travelers Policy but the Citizens initiative limitation on expenditures on the Big Chino amounting to $mm plus. Click HERE
And there’s more to come prior to the HOA Special Members Meeting on July 17 next week. Watch this space.

To see a selection of other videos on prior presentations at City Council and elsewhere click HERE