Easement Issues

A pet cemetery owner and KB Home battle over construction plans

Darla Norrish, owner of the Pet Cemetery of Tucson for the past seven years, is not kind when asked about KB Home: "They lied to me, stole from me and now want me to go away."

In 2003, representatives of the giant company contacted Norrish about her four-acre cemetery, set back from east Glenn Street. The chip-sealed drive into the carefully manicured facility goes across a recorded 30-foot-wide easement through vacant property that KB Home was considering purchasing. Before finalizing the $2 million transaction, the home builder wanted to make Norrish an offer.

Believing it would be "mutually beneficial," KB Home urged Norrish to abandon the easement. In exchange, the cemetery's access would be shifted to a private street running down the center of the proposed 13-acre housing development.

"The offer did not seem to be in my best interest," recalls Norrish. Listing potential problems with business signage, as well as safety concerns with distraught motorists driving through the subdivision after losing a pet, Norrish refused the deal.

But when preliminary plans were submitted to the city of Tucson for the 85-home development, they showed the easement being used as a drainage channel. Norrish complained, and the plans were changed.

The revised scheme indicated new pavement in the existing easement--as well as a six-foot-wide channel. A representative of KB Home told city staff members that Norrish approved of this concept.

Irate, Norrish pointed out the continuing deception, and in November, the city placed a "stop work" order on the subdivision.

"The city would not have approved conveyance of the drainage into a recorded access easement," Principal Assistant City Attorney Michael McCrory wrote KB Home, "without the approval of the owner of that easement, since doing so would clearly 'adversely effect' the easement."

Lawyers for KB Home fired back, arguing that nothing legally prevented them from placing a drainage way in the strip of land. They also said they would pave 24 feet of the easement at their expense while either replacing the 6 feet or reaching an agreement with Norrish.

Based on that, in early December, McCrory rescinded the "stop work" order but required the paved easement not to be subject to flooding. Two months prior, the city had additionally allowed KB Home to temporarily transfer cemetery traffic to an adjacent narrow dirt alley. The easement was then graded and barricaded while pet owners were required to navigate between block walls and around utility meters.

John Farinelli has been a regular visitor to the grave of his beloved 18-year old Pekinese "Susie Q" since 2003. Saying he doesn't like driving down the alley, but acknowledging KB Home did give him a few coupons for free car washes, Farinelli adds of the proposed new arrangement: "When it rains, the easement will flood. It will be a wash. It is very disturbing what KB Home wants to do, and it's unbelievable what big companies can do."

From Los Angeles, company spokeswoman Kate Mulhearn takes a different perspective. She stresses that KB Home is simply using the 6 feet of easement "as approved and required by the city of Tucson for off-site drainage, including from the pet cemetery."

"We want to resolve this issue," Mulhearn stresses. "We've offered (Norrish) compensation, including money toward a wide range of items she sent us. She declined that offer, but we want to end this with a mutually agreeable solution."

Norrish isn't buying that. While acknowledging the home builder has paid for some minor improvements, she hired an attorney who came up with a list of 10 requirements, along a request for a "substantial sum of monies".

In exchange for the 6 feet of easement, KB Home responded by accepting most of Norrish's demands, estimating they would cost $9,000 to implement. They also offered her an additional $1,000 in compensation, a figure later raised to $6,000.

With Norrish still not agreeing, KB Home began construction on the easement last week, a project to be completed by mid-March. Mulhearn believes with paving and landscaping the new access will be an improvement over what it was before, an assessment shared by city of Tucson Engineering Administrator Jim Vogelsberg. "It will be just like a city street on KB property," he says. "(Norrish) is not losing anything."

Norrish disagrees, and a few months ago filed a complaint with the state's Registrar of Contractors office. It issued a corrective work order, giving KB Home 30 days to "properly resolve the construction encroachment upon (Norrish's) access easement in compliance with easement restrictions and final approval of the city of Tucson." The home builder didn't respond, so the Registrar's office has promised to issue a citation in the case.

Meanwhile, Norrish scratches her head while looking out over the last resting spot of almost 4,000 animals. Standing near the two-story stick-and-stucco earthtone structures KB Home is rapidly building next door, she says: "There doesn't seem to be a way for the city to be held accountable for their actions. A legal document isn't being enforced, because the company is bigger than I am."

Then she reflects: "Talking with your neighbors to work out an arrangement is the old-fashioned way. That doesn't work with KB Home, but they can not be above the law. I'm a doggie undertaker, and I want my 6 feet."

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