BISBEE — Just who owns and is responsible for a failing retaining wall in Old Bisbee is now the subject of a lawsuit brought forward by a couple who want the city to take the necessary actions for its repair.
Ken and Mary Alice Budge filed the suit last week, after they said they tried all options to get the city to claim the wall and repair it.
“We didn’t want it to come to this,” said Ken Budge. “But we want to protect our home from damage if it collapses. We’re pursuing this for every Bisbee citizen who owns land abutting a retaining wall. We asked for a more open and honest discussion on how best to address the very real threat to my property posed by the collapsing wall above me.”
The problem began years ago when the 100-plus-year-old rock and concrete wall collapsed and damaged the back of the block home. Those owners moved out and when new owners moved in, they repaired the wall in order to repair the home.
The Budges bought the property in 1999 and some years later a portion of the wall did fail and they took temporary measures to prevent it from collapsing further. They bought the lot above them, so the city could easily access the wall and make repairs.
Now, there is an obvious bow in another portion of the concrete wall and a huge crack in it, through which water flows during rains. Adding to their concerns are the water line and natural gas line which run across the wall. If the wall fails, they will bear the brunt of a dangerous gas leak and possible flooding problems.
Concerned for their welfare and their home, and for the business owners and residences downhill from them, Ken Budge went to the city to ask for help. For years, he tried to get help from the city and prior Public Works directors agreed it was the city’s responsibility. He has some documentation to back his claims.
In plat maps dated from 1905, the wall held up a walkway for people to reach their homes from the stairs and when the land in Old Bisbee was deeded to the city, it took responsibility for all the streets, alleys, drainage ways, stairs, walkways and retaining walls. A stamp on the Cochise County plat map stated: “Undesignated areas within the town site are lands held in trust by the City of Bisbee – per the city attorney.”
Budge believes that stamp means the city is responsible for repair and maintenance of the wall, just as it would for any of the streets in the city.
He went to the Public Works Director Jesus Haro last May to talk about repairing the wall. He alleges Haro told him in July an engineering firm would work up a proposal.
Then in August, he received a letter from the City Attorney James Ledbetter, who stated in the letter the wall was on his property and extended into a city easement, so the city “disagrees with your assessment that the city owes a duty to repair and maintain property owned by you.”
Though the Budges did not build the existing portion of the repaired wall, Ledbetter stated he was responsible for it. Ledbetter also wrote that the city could “enforce its right to have you remove the wall because the wall impedes ingress and egress.”
However, with that said, Ledbetter offered a more “amicable approach” in which the city would offer its easement to the Budges.
“Regardless of which option you chose, you are ultimately responsible for your property which extends into and over the city’s easement,” wrote Ledbetter, who did not respond to Herald/Review requests for comment by presstime Monday.
Ken Budge asked how the city could offer to give him the property if they claimed it was not city property in the first place.
“It didn’t make any sense to me,” he said.
At that point, he talked with former City Attorney John MacKinnon, now in private practice, about the situation.
MacKinnon offered to take the case, as he believed Ledbetter was wrong and the city was responsible for the wall, which has been in existence since 1905, as can be seen in historical photos.
MacKinnon wrote in an Aug. 27, 2019, letter, “It was specifically retained as separate public property in subsequent plats prepared for this area and reserved for public use.”
Budge had his property and the city wall property surveyed by Bisbee Land Surveying, and the results showed the wall varied in width from slightly over 6 feet in width to 5 feet across the back property line abutting the Budge property. It appears a short portion of the wall does cross onto the Budges’ property.
A title search showed the city did not abandon the property or transfer it to any of the adjoining property owners, MacKinnon continued.
He suggested the city work with the Budges to satisfactorily resolve the matter “before the wall fails and causes significant harm to the persons and property below.”
In a following letter, Ledbetter stuck with his previous opinion that the onus of repair and maintenance of the wall belonged to the Budges.
“To be direct, we cannot recommend the city use its limited resources to repair the wall it never built, nor owns or controls,” he wrote.
He went on to state that since Budge owns the upper-level lot above his house, the walkway is excluded from public access, as he is the sole user of it. As such, “the city cannot use public funds on private property.”
Ledbetter also stated the Budges’ property was included in the Chihuahua Hill Addition, but plat maps show that is not the case.
With the failure of several retaining walls in the historic district over the past six months and the accompanying safety concerns, the Budges would like to see a fix before the monsoon rains set in.
“Forcing me and other citizens to go to court to deal with their infrastructure problems is an expensive and unnecessary way for them to recognize reality,” Ken Budge said.
MacKinnon will be seeking a declaratory judgement to order the abatement of a public nuisance, repair the wall and pay for costs and attorney’s fees.