Carefree
wants Superior Court to remove rulings in Peloquin case
Peloquin
attorney calls move ‘very creative
by
Barry Cohen
CAREFREE
– Carefree has asked the Maricopa County Superior Court to
vacate earlier rulings that went against the town in its lawsuit
to prevent developer Michael Peloquin from building a resort
hotel in the town.
In
an Aug. 29 motion filed with the court, Carefree said the
memorandum decision issued by the Arizona Court of Appeals
in July 2006 makes the matter “moot, and rendering declaratory
relief would amount to issuing an impermissible advisory opinion.”
The town’s request will be ruled upon by Superior Court Judge
Michael D. Jones.
Peloquin’s
attorney John Marcolini said on Sept. 1 that he hadn’t yet
seen the town’s motion but described it as “very creative.”
“The
Court of Appeals did not direct the trial court to vacate
Judge Baca’s order and gave the court no remand instructions,”
he said. “I don’t understand how they can say the matter is
now moot.”
At
issue is a special use permit Peloquin’s Phoenix‑based
company, G.P. Properties, needs to build a 156‑room
resort hotel on 11 acres at the northwest corner of Tom Darlington
Drive and Carefree Highway. The land is zoned residential.
Town
officials and residents have strongly voiced their opposition
to Peloquin’s plans for the property.
The
town’s latest motion asks the court to vacate two orders Superior
Court Judge Anna Baca issued in 2005.
Baca
ruled on April 29, 2005, that issuance of a special use permit
is an administrative action, which means such permits can
be used by town staff. Carefree officials have maintained
that issuing such permits is a legislative action, requiring
approval by majority vote of town council. Peloquin claims
he was denied due process during the application process.
On
June 20, 2005, Baca denied the town’s contention that the
unintended effect of her April 29 order would require the
town council to ignore health, safety and welfare concerns
when evaluating a special use permit.
In
July, the Arizona Court of Appeals dismissed Carefree’s appeal
of Baca’s judgment.
Marcolini
says G.P. Properties is entitled to a special use permit and
that he will use the state court judgment in the company’s
federal action to obtain the permit. G.P. Properties, he added,
is also due significant monetary damages dating back to when
the company first applied for a use permit.
