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lawsuit

In a resident’s lawsuit against the City of Maricopa and a sports-car club, both sides presented their cases to the Arizona Court of Appeals on Wednesday.

Bonita Burks sued the City and Private Motorsports Group after a permit was approved for Apex Motor Club. Apex is intended to be a private club for sports car enthusiasts, with a clubhouse, private racetrack and garages.

During oral arguments, the judges were trying to determine if Burks had legal standing to sue and, if not, whether the requirement should be waived. To show “standing,” Burks would have to prove she would be more impacted than the “community at large” by the potential noise, odor and traffic she complained of.

If the appeals court sides with Burks regarding her “standing,” it would open the legal case to the meat of the matter. That is, whether the City acted illegally in allowing Private Motorsports Group to obtain its permit under the old zoning code.

Pinal County Superior Court Judge Robert Olson has already written his opinion the City did not act correctly in that matter. That opinion, however, was not binding because it was an aside to his ruling Burks had no standing to sue.

The Apex site is at the northwest corner of State Route 238 and Ralston Road. Burks’ home is in Rancho El Dorado, 5.2 miles from the site.

For that reason, the City and Private Motorsports Group have argued Burks does not have standing to file suit. It was a point argued previously before Olson.

“Our argument is, she did not allege or establish at the hearing any facts of personalized injury,” said Roopali Desai of Coppersmith, Schermer & Brockelman, the law firm representing Private Motorsports Group.

Burks’ attorney, while arguing she could have standing because Rancho El Dorado is closer to the Apex site than several other subdivisions, sought to have the whole “standing” requirement waived.

“The zoning matter is a big deal in Maricopa,” said attorney Timothy La Sota, who took over Burks’ case late in the appeals process. He added the statewide concern with zoning issues qualified the case to have the “standing” requirement waived.

La Sota represented Maricopa Citizens Protecting Taxpayers in a previous suit against the City that also went before Judge Olson. That was a disagreement over whether the City had taken legislative action or administrative action in granting the permit. MCPT claimed it was legislative action that could be subject to referendum and thus placed on a ballot. The City claimed it was administrative action and not subject to referendum.

Olson ruled in favor of MCPT, but that ruling was overturned by the Court of Appeals in September. However, La Sota brought up that sore spot again during Wednesday’s arguments.

The City, he said, changed its actions to administrative “to get around the referendum” and was trying to do something similar by denying Burks’ standing in the case.

Desai argued the state sets an “incredibly high standard” for establishing standing, and for a reason. She rebuffed attempts by the judges to set up hypothetical situations, saying Burks might have standing if she had to drive SR 238 to work every day but that is not a fact in the case.

“She does not use 238 to access her subdivision,” Desai said.

She also noted facts not in the record from the lower-court case, that three master-planned communities, 1,000 homes, railroad tracks and some business properties lie between the Apex site and Burks’ home. She said a noise study and traffic study refuted attempts to claim personal injury.

La Sota said taking the appellee’s “linear” approach to judging impact of the space between was separating the case from the “true standard” of determining personal injury.

The judges pushed La Sota on the definition of “community at large,” saying the attorney had not supplied evidence Burks is being personally impacted more than the rest of Maricopa “other than saying she is more affected because I say she is.”

The Court of Appeals, Division II, in Tucson has taken the arguments under advisement. Both sides now await its decision. If the court waives the “standing” requirement, the City and Private Motorsports Group would have to again defend the City’s action on permits and zoning.

Though City Attorney Denis Fitzgibbons was present at Wednesday’s hearing, he did not make a presentation to the judges.

Maricopa Chamber of Commerce

Transparency claims filed against the Maricopa Chamber of Commerce last year were recently dismissed by a Pinal County Superior Court judge, according to court documents.

The lawsuit filed in May 2016 by Kimberly Diedrich, owner of a local nonprofit, requested the court force the Chamber to reveal documents surrounding its hiring process of former Chamber Director Sara Troyer.

Judge Brenda Oldham instead ruled in favor of the Chamber and dismissed the “complaint and all claims in this case with prejudice” in August 2017, while also enforcing a settlement agreement initially proposed by the Chamber earlier this year.

Court records state Diedrich and her husband Carl are ordered to pay $18,577 in attorney’s fees and related costs.

A press release sent by the chamber last week stated, “there was no evidence of ethical violations or impropriety presented through the process that involved the Chamber.”

Diedrich said that statement “could be misleading.”

“Since there was no evidence presented, I guess that statement is true, but because the settlement agreement prevented answering those specific questions before discovery began, it could be misleading,” Diedrich said.

Diedrich said part of the settlement agreement between her organization, Home is Where the Hound Is, and the Chamber included the dismissal of the initial lawsuit.

“Any characterization of the dismissal as anything else would be misleading,” Diedrich said.

Court records show the path toward reaching a settlement was difficult.

Prior to the final ruling, it appeared the Chamber, represented by its attorney, had reached a settlement agreement with Diedrich in late February. Court documents state Diedrich allegedly agreed to the settlement through email communication, but “refused to sign the settlement agreement in an email dated March 29, 2017.”

The chamber motioned the court to enforce the settlement in June, which the court granted.

Aug. 4, Diedrich challenged the court’s decision alleging, in part, the Chamber’s attorney failed to communicate with Diedrich and her husband Carl, also named in the case. Carl Diedrich was a candidate for the Chamber directorship when Troyer was hired.

“Ms. Diedrich believes the court should grant relief (…) because there was never any agreement made to the final settlement agreement and no binding contract was created because all parties were not informed of and/or agreed to the final settlement agreement,” according to court documents filed by Diedrich.

The court denied the motion for relief in September.

Chamber President Chris Cahall said the board would not consider changing its hiring process in the future to prevent similar lawsuits.

“The Chamber has always looked to partner with the city and its business community members to facilitate growth and will continue to do that in the future,” Cahall said.

In April, Troyer resigned in from her position at the Chamber to pursue a job prospect out-of-state. The Chamber then re-hired Executive Director Terri Crain.

Crain said she could not comment on the lawsuit.

The plans for Apex Motor Club have gone through the Development Services Department, Planning & Zoning Commission and City Council.

A group calling itself Maricopa Citizens Protecting Taxpayers has filed a complaint against the City of Maricopa over its dismissal of a petition against Private Motorsports Group.

That club of car enthusiasts is seeking to construct Apex Motor Club on the west side of the city. In April, the city council approved a conditional use permit allowing the construction. MCPT, which lists non-residents Robert Rebich and David Prom as its officers, circulated petitions to force that decision to a referendum.

Though the petitions had enough signatures to make it a ballot issue, the city claimed the permit was not a legislative act but an administrative act and was not subject to referendum, according to the Arizona Constitution.

The suit filed Monday in Pinal County Superior Court lists the City of Maricopa, the mayor and all members of the city council, Private Motorsports Group and City Clerk Vanessa Bueras as the 10 defendants.

City spokesperson Jennifer Brown said the city had not yet been served but will follow the standard procedures for responding to a lawsuit. That includes evaluating whether the city’s attorney, Denis Fitzgibbons, should handle the case or outside counsel should be involved or the city should coordinate with the co-defendant in the case.

Apex has been represented in its land-use dealings by Rose Law Group. In this case, Apex is represented by Coppersmith Brockelman Lawyers. MCPT is represented by Timothy A. La Sota, PLC.

In deciding how to respond to the suit, the council will meet in executive session, which might be a special meeting outside the regular meeting schedule. Because of the Fourth of July next Tuesday, the next scheduled meeting of the council is not until July 18.

After being served, “we generally have to file an answer within 20 days,” Brown said. Once an answer is filed, “the court basically dictates the next steps for us,” she said.

Rebich has not returned calls for comment on the Apex issue. He and Prom are listed as plaintiffs on the suit, along with MCPT. 

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Jackie Gonzalez

This is in response to an article published on May 23 by Yvonne Gonzalez titled Lawsuit filed over Chamber of Commerce transparency:

I have been reviewing the Chamber of Commerce cluster that has been born since the official announcement that Sara Troyer had been named the new executive director. While I do not know who specifically was the catalyst, the face for this has been Kimberly Diedrich, head of a business and a not-for-profit within the MCOC. I feel that this article published does not paint a neutral perspective on the situation but tries to incite and sway public opinion toward someone who is upset that her husband was not chosen for the open role.

Looking at the original request that was made of the Board, Kimberly asked directly for information relating to specific ARS statutes. These statutes relate to record keeping and the specific records of members that have been in good standing. I am not sure what she hoped to gain with a list of where every member lives and what their business is, but that was the request.

The board however, chose not to respond because the request was not properly made and most importantly, was not made in good faith; something crucial for any of her requests to hold any standing and garner a proper response. Contrary to popular belief of hers and supporters, Boards do not have to respond to each request made. If I were to email the Board of Directors for Pepsi Co (for example), I would not expect to receive a response.

There also appears to be a misunderstanding on what information can be asked for, and what is protected. HR hiring practices are protected. What is further evident is that there was an actual selection committee who was appointed to oversee and direct the process to replace the former CEO (at the position of executive director). Every proper procedure appears to have been followed to the letter.

There is a process that members may go through if they feel that there are grievances relating to membership. One member said, “When she [Kimberly] exercised this option, she was informed that the hiring practices are sealed to allow for fairness. She was not happy with this answer so her and a few other sympathizers started looking for ways to unseal what they feel are secrets. I think that all of this could have been avoided if Carl [Her husband] had been hired, but that would have set the Chamber back 10 years at least.”

Another important, if overlooked, item is that the communication ceased between Kimberly and the Chamber when Kimberly threatened to sue in the first place. The Board, like many other boards out there, has a lawyer on retainer who is activated in case of situations that arise. When she threatened to sue, she activated that clause. A board member said this is, “Causing an undo financial burden on the Maricopa Chamber of Commerce. We do not have the money to fight frivolous legal battles like this.”

By filing the lawsuit, Kimberly opens the door to have a judge take an unbiased look at her claims and respond appropriately. She seeks relief against the financial costs that were rightfully assigned for work that she asked for. It is in my opinion that this is no longer stonewalling; they are complying to provide her the records. Since it detracts from the normal work of the Chamber, they are allowed to levy a fee. Since there is a per page fee and per hour fee, this appears to be within the realm of right and just. Kimberly simply seems to want this hard work done for nothing, and in the process find a smoking gun that will undermine Troyer.

One can only hope that she spends this much effort in her day-to-day business activities rescuing and babysitting animals as she does in tilting at windmills.


Jackie Gonzalez is a resident of Maricopa.

 

Maricopa Chamber of Commerce

By Yvonne Gonzalez

A business owner is suing to force transparency from the Maricopa Chamber of Commerce.

Chamber member Kimberly Diedrich, whose husband Carl competed to lead the chamber before Sara Troyer was hired, filed the lawsuit May 20 in Pinal County Superior Court.

Diedrich says she and other chamber members were met with resistance from the board when they asked for documents related to hiring Troyer, who is a 2013 Maricopa High School graduate and former marketing and programs development director at the Maricopa Center for Entrepreneurship.

The chamber, according to Diedrich, listed a bachelor’s degree or five years of executive experience among the advertised job requirements. She said her husband fits those requirements and, according to the lawsuit, was one of two people to interview with the board for the executive directorship.

“I want to see votes, I want to see meeting minutes, I want to see notices of meetings,” she said. “I don’t think a lot of that is happening.”

The board said in an emailed statement Monday it kept the membership informed throughout the process, but that “to allay any unfounded concerns about the selection of (Troyer), the board is taking this opportunity to remind the members about the selection process.”

The executive director was chosen using “generally accepted human resources practices … and also complied with confidential hiring requirements,” according to the statement.

“We notified the community about the open position through an e-blast to the members and a press release to the general public.”

The board stated a five-member search committee chose people to interview from a pool of 27 applicants.

“Once (Troyer) applied for the position, (Troyer) was excluded from any and all discussions and communications involving the executive director position,” the statement said. “She was among the final candidates the search committee referred to the board. Had she not been in this group, the board would not have interviewed her.”

According to Diedrich’s lawsuit, the search committee members were “a subordinate employee of a board member, a former board president, a chamber committee chairperson, and an ex-officio board member.”

The lawsuit is asking the court to order the chamber to open records to inspection and “allow copying of the records demanded at the corporation’s expense.”

Diedrich also wants the chamber to pay “costs, including reasonable attorney fees, incurred to obtain the order,” according to a copy of the filing she provided.

She said if she’s able to review the documents she’s been unable to see so far, and they show the chamber has been acting inappropriately, then it might be time to make changes to the board’s members.

“My questions originally came about because of (Troyer’s) hiring,” she said.

Diedrich emphasized she does not want a position on the board, and that the issue isn’t about her husband not being hired.

“When I was stonewalled,” she said, “that’s when more questions arose.”

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