Note: I sent this letter to Ian Cordwell at Ian’s request to resolve the zoning and subdivision issues that Cave Creek caused on my property as a racketeering scheme. I thought Ian was going to do the honorable thing, but Ian never responded.
Ian Cordwell, Director of Planning, Zoning Administrator
Town of Cave Creek
37622 N. Cave Creek Rd.
Cave Creek, AZ 85331
December 23, 2017
Dear Ian,
For years you told me that you made mistakes; that you were ordered to do so sometimes, but you never said what the mistakes were or who ordered you to make them. As nothing prevents you from correcting your mistakes, I submit the following:
Pursuant to A.R.S. §9-463.01, the Town Council of Cave Creek SHALL regulate and SHALL exercise authority over the subdivision of all lands within its corporate limits. The Town adopted a Subdivision Ordinance that SHALL apply to all land in the corporate limits of Cave Creek per Section 1.1(A)(1)[1] of the Subdivision Ordinance, which supplements A.R.S. §§ 9-463.01 and 9-463.04 per Section 1.1(A)(3): “Any land in the incorporated area of the Town of Cave Creek which may be classified under the definition of a subdivision SHALL be subject to ALL of the provisions of this Subdivision Ordinance.” [emphasis added]
Under color of law, on which I detrimentally relied, you told me in 2001 to develop parcels 211-10-010 and 211-10-003 by a “series of lot splits;” that in consideration for down zoning the density on these parcels from 18,000 sq ft lots to ¾ acre lots, the Town would allow me to build out 8 homes rather than plat a subdivision. You also said that a subdivision was “5 or more lots.”
Years later, I discovered that A.R.S. §9-463.02 defines a subdivision and A.R.S. §9-463.03 renders the sale of any portion of a subdivision unlawful until a final plat map is recorded. Subdivision Ordinance Sections 1.1(A)(2) & 1.1(A)(4) limit the subdivision process and sale of subdivided property in Cave Creek. Specifically, the subdivision of any parcel of land into four (4) or more parcels must comply with the ordinance.
The Subdivision Ordinance is incorporated into the Zoning Ordinance per Section 1.1(B) of the Zoning Ordinance. In any conflict of regulation, the more restrictive shall govern per Section 1.1(C) of the Zoning Ordinance.
Carrie Dyrek admitted on August 29, 2016, that Cave Creek stopped complying with A.R.S. §§ 9-500.12 & 9-500.13 as its official policy when I applied to split parcel 211-10-010 into three lots in October 2001. Jodi Netzer witnessed Carrie’s admission. Carrie provided evidence requested through the Freedom of Information Act that Cave Creek knew its duty to abide by A.R.S. §9-500.12 and complied to varying degrees from 1997 to September 2001, but completely stopped thereafter. By violating A.R.S. §9-500.12, Cave Creek denied due process to avoid its burden to establish the nexus of proportionality for requiring the exaction of a 25-foot wide strip of land from parcel 211-10-010 to approve the split of parcel 211-10-010 on December 31, 2001, Maricopa County Recorded Document (“MCRD”) 2002-0256784. The Town surreptiously turned this strip of land into “Parcel A” to approve sewer permits in 2003, and required the survey to say it was dedicated in 2003 without complying with A.R.S. §9-500.12 or the Subdivision Ordinance, MCRD 2003-0488178. Sometime between 2003 and 2013, Maricopa County Assessor’s Office issued “Parcel A” a parcel number, #211-10-010D, and classified the split of parcel 211-10-010 into lots 211-10-010 A, B, C, & D as an “undefined subdivision.” I never received notice or explanation as to why or how “Parcel A” had to be dedicated to Cave Creek. Cave Creek never established the nexus of proportionality for the dedication nor just compensation such that it was never dedicated per Section 2.4(D)(2)(b)(2) of the Subdivision Ordinance (“Execution of the dedication shall be certified by a notary public”).
Section 2.3(C) of the Zoning Ordinance establishes your duties as the Zoning Administrator. Section 2.3(D) establishes the limitations of your power as Zoning Administrator. Pursuant to Section 2.3(C)(1), you are required to establish rules, procedures, and forms to provide for processing of applications or requests for action under the provisions of the Zoning Ordinance. Per Section 2.3(C)(2), you are required to perform ALL administrative actions required by this Ordinance to include giving notice, scheduling of hearings, and preparing reports. It is your duty that Cave Creek complies with Federal law in A.R.S. §§ 9-500.12 & 9-500.13 when the Town exacts land, improvements, or dedications of easements to approve entitlements.
By violating your duty to perform ALL administrative actions that require Cave Creek to comply with A.R.S. §§ 9-500.12 & 9-500.13, you violated your oath of office. You / Cave Creek exacted a 25-foot wide strip of land that converted my “metes & bounds” survey of parcel 211-10-010 into a 4-lot non-conforming subdivision. A “metes and bounds” survey is not a final plat map vetted by the Planning Commission and Town Council. Further, lot 211-10-010D blocked access to lots 211-10-010 A, B, & C. Per Section 1.1(B)(1) of the Subdivision Ordinance, you shall enforce the Subdivision Ordinance. By violating your duties in Section 2.3(C)(2) of the Zoning Ordinance, the Town violated A.R.S. §9-500.12 for you to approve the “metes & bounds” survey of parcel 211-10-010 into 4 lots on December 31, 2001, in violation of Sections 1.1(A)(1-4), (B), (C), & (D), 6.1(A), 6.2(B)(4), 6.3(A), and Chapter 2 especially 2.5(E) of the Subdivision Ordinance.
Per Section 1.1(B)(2) of the Subdivision Ordinance, ALL officials and employees of the Town who are vested with the authority to issue permits SHALL ONLY issue permits or otherwise perform duties in accordance with the Subdivision Ordinance. Because no lot split from parcel 211-10-010 is entitled to a building permit per Section 6.3(A) of the Subdivision Ordinance, any permit issued to a non-conforming lot of parent parcel 211-10-010 conflicts with Section 6.3(A) of the Subdivision Ordinance as to be void per Section 1.4 of the Zoning Ordinance.
As such, each and every lot split from parcel 211-10-010 and all permits issued to these lots violates the Subdivision Ordinance to be a separate offense punishable against you, Cave Creek, and other complicit Town officials per Sections 1.7(A),(B),&(C) of the Zoning Ordinance. Per Sections 1.1(C), 1.5, & 1.7 of the Zoning Ordinance, you have no discretion but to order the use of all improvements discontinued on lots in parcel 211-10-010 and order the property vacated. Per Section 1.7(A),(B),&(C), each and every day that you do not order the use of improvements on lots in parcel 211-10-010 discontinued and the land vacated is a continued violation that shall be a separate offense against you and Cave Creek punishable as described in Section 1.7(A).
August 5, 2002. http://www.cavecreek.org/Archive.aspx?ADID=154
In furtherance of your instruction to develop parcels 211-10-010 and 211-10-003 by a “series of lot splits,” The Cybernetics Group applied to split parcel 211-10-003 into two (2) lots. Once again, you violated your duty as Zoning Administrator by failing to notice The Cybernetics Group of its right to a hearing and a takings report per A.R.S. §9-500.12 when Cave Creek required a 25-foot wide strip of land along Schoolhouse Road as a condition to approve the lot split. The Town had the burden to establish the nexus of proportionality and provide a takings report for this 3rd lot / 25-foot wide strip of land.
As part of a civil conspiracy, you told Town Council that “the issue is land planning and where the line is crossed that separates lot splitting and the subdivision processes,” but you didn’t tell Town Council that the “series of lot splits” was by your instruction; that you violated your duties as Zoning Administrator per Section 2.3(C)(2) of the Zoning Ordinance for Cave Creek to exact a strip of land, a 4th lot to transform the split of parcel 211-10-010 into a non-conforming subdivision by failing to follow Federal law, State statutes, and Town ordinances. You said that parcel 211-10-010 was split into 3 lots, when in fact it was already a non-conforming subdivision of 4 lots. Based on my 12.5% interest in Cybernetics, Town Council denied the Cybernetics lot split, but 211-10-003 was NEVER part of a parent parcel with 211-10-010. As it was painfully obvious that the principles in “A Pattern Language” would never manifest in Cave Creek, Cybernetics sold parcel 211-10-003 to Keith Vertes contingent upon Vertes obtaining a lot split of parcel 211-10-003.
April 21, 2003. http://www.cavecreek.org/Archive.aspx?ADID=246
You told Town Council that Vertes applied to split parcel 211-10-003 into 3 lots; that “all 3 lots would be considered hillside in that they have slopes of 15% or more so the Zoning Code on them is hillside.” You told Town Council “that there is a required sewer line by the Town Engineering Department to be placed on property to the north [211-10-010 lots]. This property [211-10-003] has its own access and would be required to tie into sewer given that it is within 300 feet.”
You did not tell Town Council that Cave Creek required a strip of land, “Parcel A,” to approve the “metes & bounds” survey of parcel 211-10-003, which converted the lot split into a non-conforming subdivision of 4 lots that violated Subdivision Ordinance Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A), 6.2(B)(4), 6.3(A) & Chapter 2 especially 2.5(E).
You did not tell Town Council that you were required to order the use of the sewer constructed on parcel 211-10-010 discontinued per Sections 1.5 & 1.7 of the Zoning Ordinance because the subdivision of 211-10-010 into 4 lots did not comply with Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A), 6.2(B)(4), 6.3(A) & Chapter 2 especially 2.5(E) of the Subdivision Ordinance; such that the lots were not entitled to building permits; such that the sewer permits issued to the 211-10-010 lots conflicted with Zoning Ordinance and thus void per Section 1.4 of the Zoning Ordinance. Additionally, you failed to comply with A.R.S. §9-500.12 per Section 2.3 of the Zoning Ordinance when the Town required easements on parcel 211-10-010 for the ultra vires sewer and required the 211-10-003 lots to connect to the ultra vires sewer on my property to approve the non-conforming subdivision of parcel 211-10-003 into four (4) lots.
On August 16, 2003, you misrepresented that 211-10-003’s 4th lot “Parcel A” had been dedicated to the Town of Cave Creek on MCRD #2003-1312578 to violate A.R.S. §33-420. In fact, the 25-foot wide strip of land was never dedicated to Cave Creek per of Section 2.4(D)(2)(b)(2) of the Subdivision Ordinance. “Parcel A” on MCRD #2003-1312578 became lot 211-10-003D, which continues to block legal and physical access to lots 211-10-003A, B, & C and blocks the easement on lots 211-10-003 A & B in violation of Section 5.1 of the Zoning Ordinance.
Thinking at the time that the lot splits of parcels 211-10-010 and 211-10-003 were lawful as Cave Creek continued to issue permits and never disclosed the non-conforming subdivision status of the lots, a Home Owners Association (“HOA”) was executed by and between myself as the owner of lots 211-10-010 A, B, & C and Keith Vertes of GV Group LLC, purporting that the LLC was the owner of lots 211-10-003 A, B, & C. The agreement ran with the lots to provide mutual and reciprocal access to the easements on the 211-10-003 lots and the 211-10-010 lots.
The intent of the agreement required mutual and reciprocal easement access to comply with Zoning Ordinance Section 5.1, especially 5.1(C)(3) (“the route of legal and physical access shall be the same”) & 5.1(C)(8), and Subdivision Ordinance Section 2.5(A)(6) (“No non-public way or driveway shall provide access to more than three (3) residential lots”). Mutual and reciprocal access was also required to build an adjoining driveway over parcels 211-10-003 & 211-10-010 to facilitate 211-10-003’s Hillside designation per Section 5.11 of the Zoning Ordinance.
However, GV Group LLC did not own lots 211-10-003 A, B, & C and Vertes sold lot 211-10-003A to Jocelyn Kremer the day before executing the HOA to not bind the lot and to block access to the 211-10-003 easement ab initio. Additionally, access to the 211-10-003 easement was blocked by the 25-foot wide sliver of land, now lot 211-10-003D, which was never dedicated to Cave Creek as you, Carrie, and Mayor Vincent Francia attested.
In hindsight, the HOA violated the Zoning Ordinance ab initio. The HOA intended one driveway to serve a build out of nine (9) residential lots. You said we could disregard Section 5.1(C)(8) of the Zoning Ordinance if the HOA shared mutual and reciprocal access of the 211-10-003 & 211-10-010 easements. But lot 211-10-003D (a/k/a “Parcel A” on MCRD #2003-1312578) blocked legal and physical access to the 211-10-003 easement in violation of Section 5.1 of the Zoning Ordinance. As such, the HOA not only violates Section 5.1(C)(8) of the Zoning Ordinance, but also 2.5(A)(6) of the Subdivision Ordinance. Therefore, the HOA did not comply with Zoning Ordinance Sections 1.1(C) & 1.3(B) (if this Ordinance imposes higher standards or greater restrictions, the provisions of this Ordinance shall prevail).
In 2004, I invoiced Cave Creek for the repair and extension of the Town’s sewer not knowing at the time that the lots and sewer violated the Subdivision & Zoning Ordinances. In response, you placed me “under investigation” on February 28, 2004, for alleged ”potential violations” of the “lot splits” of parcels 211-10-010 & 211-10-003, and “red tagged” all building permits to the lots. You later told me that you were ordered to write that letter of the bogus investigation, which contains no explanation of why or how “potential violations” existed. The Town Marshal said “reassemble the lots,” which I did, but recording a reassemblage was only construed for tax purposes by the County. According to Maricopa County Assessor’s Office in 2014, only a Court can undo Cave Creek’s subdivision violations by striking the lot splits.
Nonetheless, you approved building permits to construct homes on non-conforming subdivided lots 211-10-003 A, B, & C based on drawings that violated hillside coverage restrictions, using an ultra vires sewer and access from my property, in violation of A.R.S. § 9-500.12, Subdivision Ordinance Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A), 6.2(B)(4), 6.3(A) & Chapter 2 especially 2.5(E), and Zoning Ordinance Sections 5.1, 1.3, 1.5, 1.4, 1.7, & 2.3(C)(4).
In violation of Section 2.3(E)(1) of the Zoning Ordinance, you did not transmit plans and permits (i.e. all records) to the Board of Adjustment for the variance applications for lots 211-10-003 C & B. The variance applications rely on the HOA. The applications claim that “blocked access” to my property was the cause of the excessive disturbance on lots 211-10-003 C & B. However, you had notice that the HOA was rescinded in 2005 because it was disavowed by REEL, BMO Harris Bank, and Kremer due to Vertes’s breach ab initio, such that plans and permits for lots 003 B & C using access from my property violates Sections 5.1 of the Zoning Ordinance.
Per Subdivision Ordinance Section 1.1(A)(4): No person shall subdivide any parcel of land into four (4) or more lots except in compliance with this Ordinance. Cave Creek’s requirement to exact strips of land that became 4th lots caused the unlawful subdivision of parcels 211-10-010 and 211-10-003.
It is your duty to enforce the Subdivision & Zoning Ordinances per Sections 1.5 & 2.3 of the Zoning Ordinance and Section 1.1 of the Subdivision Ordinance, also incorporated in the Zoning Ordinance per Section 1.1(B). Based on A.R.S. §9-463.03 and Subdivision Ordinance Section 1.1(A)(2), the sale of lots 211-10-003 A, B, C, & D, and the sale of lots 211-10-010 A & C are unlawful because there are no recorded final plat maps of these lots that conform to the Town’s Subdivision Ordinance. Because YOU violated your duty to enforce the Ordinances, I did not know that it was unlawful to sell any part of parcels 211-10-010 or 211-10-003.
Pursuant to Subdivision Ordinance Section 1.1(A)(5), no lot within a subdivision can be altered or further divided without the approval of Town Council. Parcel 211-10-010 was subdivided into 4 lots. It’s a subdivision. Since the further split of lot 211-10-010A was not approved by Town Council such that lots 211-10-010 L, M, & N do not conform to the Subdivision Ordinance and are therefore unsuitable for building and not entitled to building permits per Subdivision Ordinance Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A), 6.2(B)(4), 6.3(A) & Chapter 2 especially 2.5(E), and Zoning Ordinance Sections 5.1, 1.3, 1.5, 1.4, 1.7, & 2.3(C)(4).
Per Section 2.3(C)(11), you had authority to refer all permit applications for 211-10-010 or 211-10-003 lots to the Planning Commission. The division of these parcels into 4 lots each rendered the properties unsuitable for building and not entitled to building permits per Section 6.3(A), yet you continue their unlawful use and continue to issue void permits. In violation of A.R.S. §9-500.12(C) and Section 2.3(C)(2) of the Zoning Ordinance, no takings report was ever generated as required.
Each and every day that you fail to enforce the Subdivision & Zoning Ordinances as required per Sections 1.5 & 2.3 of the Zoning Ordinance shall be a separate offense punishable per Section 1.7 of the Zoning Ordinance. Per Section 1.7(A) of the Zoning Ordinance effective when you approved my lot split and began issuing me permits to my property in 2001, if you or the Town (i.e. any person) violates any provision of the Town’s Ordinances, you (and Cave Creek) shall be guilty of a Class One misdemeanor punishable as provided in the Cave Creek Town Code and state law for each day of continued violation. Knowing that you and other town officials could be liable for violating the Town Ordinances, in bad faith, you and the Prosecuting Attorney requested that this language be changed to a Civil Code Infraction in 2005. All of the above are continuing violations of Cave Creek’s Ordinances, caused or created by you as Zoning Administrator on behalf of the Town, requiring the use of parcels 211-10-003 & 211-10-010 discontinued and the parcels vacated to Quiet Title in conformance with the Subdivision Ordinance and A.R.S. §9-463.03. See Zrihan v. Wells Fargo Bank, NA, Dist. Court, D. Arizona 2014: “”[A] cause of action to quiet title for the removal of the cloud on title is a continuous one and never barred by limitations while the cloud exists.” Cook v. Town of Pinetop-Lakeside, 303 P.3d 67, 70 (Ariz. Ct. App. 2013) (quoting City of Tucson v. Morgan, 475 P.2d 285, 287 (Ariz. Ct. App. 1970)).”
Since it is well established law[2] that you and Cave Creek can correct mistakes of law at any time, the purpose of this letter is to establish a clear line, a date certain, as to whether you and Cave Creek intend to resolve these matters. Per Section 2.3(D) of the Zoning Ordinance, you may not make any changes in the uses permitted in any zoning classification or zoning district or make any changes in the terms of the Zoning Ordinance. As such, you have no discretion to change “SHALL” provisions of the Zoning Ordinance.
My family and I have been substantially aggrieved by your decisions that violate your duty to enforce the Zoning and Subdivision Ordinance as outlined above. Each and every day that you fail to correct your mistakes becomes a separate violation punishable as outlined in Section 1.7 of the Zoning Ordinance. As such, per Zoning Ordinance Section 2.3(E)(1), this letter is our request for your decision to correct your dereliction of duties as outlined above.
Per Zoning Ordinance Section 2.3(E)(2), I hereby request your decision in writing, via certified mail, return receipt requested as to your intention to correct the continuing violations of the zoning and subdivision ordinances that you and other Cave Creek officials or employees knowingly concealed from me since 2001 as outlined above.
Cordially,
Arek R. Fressadi
Cc: Town Council, Town Manager, Jeff Murray, Esq.
[1] All cited Ordinances herein refer to those adopted or in effect in the 2003 Ordinance booklets.
[2] See Thomas and King, Inc. v. City of Phoenix, 92 P. 3d 429 – Ariz: Court of Appeals, 1st Div., Dept. B 2, 2004, relying upon “Valencia Energy v. Ariz. Dep’t of Revenue, 191 Ariz. 565, 576, ¶ 35, 959 P.2d 1256, 1267 (1998), and Rivera v. City of Phoenix, 925 P. 2d 741 – Ariz: Court of Appeals, lst Div., Dept. D 1996.”