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Tue, June 18

Judge leaning in favor of Town in airstrip lawsuit

Case law may settle the legal dispute between the Town of Chino Valley and Perkins Ranch Inc. over the ranch’s bid to build an asphalt airstrip.

A Yavapai County Superior Court judge seemed on Nov. 3 to lean in favor of the town, which contended that the Perkins family began construction of the airstrip in August without obtaining a conditional use permit and other necessary permits.

Division 1 Judge David Mackey cited a zoning case that the Arizona Supreme Court decided involving “non-comforming” land uses that predate annexation, Rotter vs. Coconino.

However, Mackey gave an attorney for Perkins Ranch Inc. an opportunity to present other case law that would back the Perkins family’s argument that a so-called “grandfather clause” grants them the right to build an asphalt airstrip without obtaining permits from town government. Town officials also argued that the Perkinses needed to rezone the property from single-family residential with a minimum lot size of two acres to industrial.

Minutes before the three-hour hearing ended Nov. 3, Mackey gave Russell Kolsrud of the Scottsdale law firm of Norling, Kolsrud, Sifferman and Davis P.L.C. until Nov. 8 to submit arguments. The attorney representing the town, Mark Drutz of Musgrove, Drutz & Kack P.C. of. Prescott, in turn has until Nov. 14 to respond to Kolsrud.

Mackey indicated that he will make a decision after he reviews the attorneys’ submissions. He presided over two days and six hours of a hearing in which five people testified Oct. 26 and eight people –  including two holdovers from Oct. 26 – testified Thursday.

“What I need to see is not case law from other states,” Mackey told Kolsrud.

The town’s attorneys filed a lawsuit Sept. 14 to seek a temporary restraining order and injunction to challenge the family’s bid to build a “touch-and-go” airstrip on the ranch, located about seven miles east of Highway 89 on Perkinsville Road.

Town officials contend that ranch officials did not obtain the necessary permits and rezone the property from single-family residential with a two-acre minimum to industrial.

However, Marge Perkins and her husband, Tom, contended Thursday that they began construction of the airstrip in August because they enjoyed grandfathered rights that predate a pre-annexation agreement that the Town Council approved Sept. 27, 2001. The couple, who reluctantly agreed to sign petitions to seek town approval of annexing 8,300 acres, said then-Mayor Dan Main assured them of their right to build the touch-and-go strip.

They disputed previous testimony that morning from Main, who denied that the town government promised to rezone the property. Responding to a question from Kolsrud, Main said the Perkinses had an opportunity to apply for the rezone.

Responding to a question from Kolsrud, Marge Perkins said the family applied for a rezone in either December 2002 or January 2003 because “I think we were trying to be nice guys. Dan Main had said it (the airstrip) would be grandfathered in.”

The family had operated a dirt airstrip. Family members began negotiations at the time of the pre-annexation process with Embry-Riddle Aeronautical University to lease a touch-and-go airstrip to the college. Embry-Riddle later abandoned plans to do so, according to testimony.

Kolsrud asked Marge Perkins, “Are you trying to flaunt the town’s authority?”

She responded, “I thought they were flaunting their own authority.”

Under questioning from Drutz, she said town officials inquired about other non-conforming uses before annexation proceeded. He has stated that the pre-annexation agreement required family members to submit a list of non-conforming uses.

“We submitted no other ones,” she said. She added that airplanes and helicopters have landed on the dirt strip.

Asked by Drutz whether she had applied for a conditional use permit, Perkins said, “No, sir,” adding that she did not think she needed one.

Perkins told Drutz that she did not know that the ranch needed to submit a development agreement to the town.

When her husband took the stand, he said that Main and former Town Manager Carl Tenney agreed to the touch-and-go airstrip. He added the sand and gravel pit on the ranch goes back 30 years.

“We tried to do in good faith what the Town of Chino Valley wanted,” he testified under questioning from Drutz.

The Perkinses, who have been married since 1954, were the final people to testify on Nov. 3. The attorneys on Nov. 3 also questioned Main, Tenney, Mayor Karen Fann, air traffic controller Noel Kingston, town Public Works Director Ken Winckler and Mike Willinger, director of business and finance at Embry-Riddle.

Tenney, who grew up on a ranch, testified that town officials approached the Perkinses about annexing their property.

“We did not discuss the exact nature of the improvements,” he said. He acknowledged several people spoke at Town Council meetings against the proposed rezoning.

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