Re: Cave Creek Cowboys: Big Hats—No Brains, September 21, 2013
Dear Editor of the Sonoran Truth,
It should be a “no brainer” but back in the 60’s, Scottsdale had to be told by the State’s Supreme Court that the West’s Most Western Town was not a sovereign entity—that the City derived all its authority to regulate property from the state. To insure that Arizona’s cowboy towns complied with the Constitution, the legislature passed A.R.S. §§ 9-500.12 and 9-500.13 because property rights are protected by the Fifth Amendment. No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation..
In 2001, Ian Cordwell recommended that I perform a series of lot splits to develop to parcels of land in downtown Cave Creek at the base of Black Mountain. When my engineer submitted a survey to split parcel 211-10-010 into three lots, Cave Creek required a strip of land 25 feet wide along Schoolhouse Rd. be gifted to the Town.
For over a decade, Cave Creek has violated the US Constitution and state statutes by failing to follow A.R.S. §§ 9-500.12 and 9-500.13 under the leadership of Mayor Francia, the management of Usama Abujbarah, the legal counsel of Mariscal Weeks.
Not only did Cave Creek violate the US Constitution, the State Constitution, and State statutes, but it violated its own subdivision and zoning ordinances when it required a fourth lot to approve a lot split of my property. By requiring a fourth lot, the Town converted a lot split into a subdivision of four lots that was not vetted through the Planning Commission or Town Council. Why would Cave Creek do this?
In 2001, Jim McDonald was requesting entitlements to develop a mixed use project on 47 acres in the Town Core. Jim offered to fix the roads, the sewer system, the water system. In other words, the Town could have solved a host of its financial problems without resorting to a Wal Mart. I spoke in favor of developing the Town Core. Although my family had lived in the Cave Creek area since 1985, Sorchych thought I was a “high paid consultant.” Although I have been highly paid as a consultant, in this instance, I was providing my opinion as a neighbor and immediately corrected Sorchych. The Sonoran News started publishing articles casting me in a false light.
Since Cave Creek failed to comply with A.R.S. § 9-500.12(B), I was unaware of my appellate rights regarding their requirement for a strip of land to approve my lot split. Nor was it apparent that Cave Creek’s requirement for a strip of land converted my lot split into a “wildcat subdivision,” so that the S’News could cast me as a “Wildcatter” but not defame me because it was true. Cave Creek had converted my land into an unlawful subdivision of four lots.
According to Section 1.1(A) of the Subdivision Ordinance and A.R.S. § 9-463.03, it’s unlawful to sell property that does not comply with state subdivision statutes or the subdivision ordinance. According to Section 6.3(A) of the Subdivision Ordinance, lot splits that fail to comply with the subdivision ordinance renders the property unsuitable for building and not entitled to permits.
But in bad faith, Cave Creek issued permits—for sewer, driveways, and houses on lots that failed to comply with the subdivision ordinance. Most citizens would think that a permit is a vested right but not if the permit was issued in violation of any provision of the zoning ordinance, then permit is void, and the town can correct its mistake.
Issuing permits in violation of Section 6.3(A) of the Subdivision Ordinance is a violation of the Zoning Ordinance and punishable pursuant to Section 1.7 of the Zoning Ordinance. Every day is a separate violation for each violation of the ordinance. The amount of the fines are staggering. Not only is the Town and it officials and employees liable for fines pursuant to Section 1.7 but also for damages including delay pursuant to A.R.S. 9-500.12(H). I’ve invested over $1 Million into this project and spent the last 12 years figuring out how the Town was violating my property rights.
And it’s not just me and my land. Under the leadership of Francia and management of Abujbarah who obviously were advised by Mariscal Weeks, Cave Creek required impact fees for building permits to fix the Town’s sewer when there was no nexus for a house on a septic tank miles away from a sewer line. The Town also required numerous deeds of gifts for land without complying with A.R.S. §§ 9-500.13 and 9-500.12. Adjacent to my land, the Town required a “horse trail” to be gifted to Cave Creek. That “horse trail” is now a road connecting Mark Way with Military Rd. which is why I share Freeman’s sentiments: Citizens can’t trust Town Hall.
While arguing with Scottsdale as to who is the most western town may garner publicity in the New York Times, and USA Today, it behooves Town council and management to comply with due process and US Supreme Court rulings as codified in A.R.S. §§ 9-500.13 and 9-500.12. Violating state statutes is negligence per se. City officials and elected representatives have no immunity when they repeatedly ignore and violate state law. Courts have no discretion to allow statutory violations to continue. A full explanation on my land can be found here. The full legal argument for failing to follow A.R.S. §§ 9-500.13 and 9-500.12 can be found here.
Sincerely, Arek Fressadi.