Could this all apply here in Arizona?

 

———————

In Propria Persona

———————.

————-, Idaho

 

 

 

 

 

IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE

            STATE OF IDAHO, IN AND FOR THE COUNTY OF —————

 

 

 

 

STATE OF IDAHO,                             )                                                                              

                       Plaintiff/Appellee,        )     CASE NO. CR-99-7486                               

                                                               )                                                                              

vs.                                                          )                                                                              

                                                               )     APPELLANT’S BRIEF                                

——————–,                                     )                                                                              

                       Defendant/Appellant.  )                                                                              

_______________________________ )           

 

COMES NOW the Defendant /Appellant ———-, (hereafter “Defendant”) and hereby submits his brief in support of his appeal in Case No CR 99-7486.

FACTS

            On September 7, 1999 a criminal complaint was filed against the Defendant in the instant Case No. CR 99-7486 alleging a violation of the ————County Building Code.

            On August 12, 1999, in Case Number CR-M99-6675, another Criminal Complaint was filed against the Defendant. Complainant ———–, being first duly sworn on oath, complained that the Defendant did commit the crime of FAILURE TO OBTAIN A BUILDING PERMIT PRIOR TO CONSTRUCTION,   a Misdemeanor, ——-County Building Code Ordinance 221-A, Section 106.1 of the 1997 Uniform Building Code, committed as follows ; That the Defendant, ————, on or about June 1999, and thereafter, in the County of ——-, State of Idaho, did willfully and knowingly begin construction of a Single Family Residence, located at ——–, ——-, Idaho 83833, without obtaining a building permit.

            The Complaints in both cases CRM 99-7486 and CR 99-6675 use identical wording except for the dates. The complaint in Case No. CR 99-07486 which was filed on September 7, 1999 reads: “on or about the 12^th day of August 1999, and thereafter” and the complaint in Case No. CRM99-6675 which was filed on August 12, 1999 reads: “on or about June 1999, and thereafter.”

            In the instant case, with regard to the complaint, a warrant was requested and subsequently issued on September 7, 1999 by order of Magistrate J— P— L—. Bail was fixed in the aforementioned Warrant of Arrest at  $3,000 which coincidently was the approximate cost that Defendant was being required to pay for the building permit.

            The Defendant’s initial appearance, in the instant case, was held before Judge E— M—–, on June 26, 2000.        

             A jury trial was held before Judge E—– M—— in Case No. CRM 99-6675 on September 6, 2000. On Defendant’s Motion for Directed Verdict of Acquittal pursuant to Rule 29 the case against the Defendant was dismissed.

            On September 8, 2000, without leave of the Court, an Amended Complaint was filed by Deputy Prosecuting Attorney A—T– in the instant case as follows; FAILURE TO OBTAIN A BUILDING PERMIT PRIOR TO CONSTRUCTION, a Misdemeanor, I.C. subsec. 39-4111, 39-4105, 39-4109, —– County Building Code Ordinance 221-A Section 106.1 of the 1997 Uniform Building Code, committed as follows : That the defendant ——, on or about the 12^th day of August, 1999, and thereafter, in the County of —–, State of Idaho, did willfully and knowingly continue construction of a Single Family Residence…”

            On October 2, 2000, Defendant filed with the Court: “MOTION TO DISMISS AND MOTION TO ENLARGE TIME AND REQUEST FOR HEARING”. Defendant also filed with the Court on October 2, 2000,: “AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS AND MOTION TO ENLARGE TIME”. Defendant’s Motion to Dismiss was based upon the grounds of former jeopardy.

            Defendants Motion to Dismiss was denied by Judge B— E— W—for the following reasons as set forth on the face of the Notice of Hearing which was filed into the Court record on October 12, 2000; “Motion To Dismiss not timely filed and have no hearing dates and times prior to trial date.”

            On October 4, 2000 the State filed with the Court a “MOTION & ORDER TO RELEASE EXHIBITS” in Case No. CRM 99-6675. The aforementioned document stated that; “This motion is made by and for the reason that the charges in Case No. CR M99-7486 arose from the same incident and the State intends to submit the exhibits at the Jury Trial scheduled for November 13, 2000 in front of Judge W—-.”

            On October 10, 2001, the Defendant filed “OBJECTION TO PLAINTIFF’S MOTION TO RELEASE EXHIBITS” wherein the Defendant objected to State’s “MOTION TO RELEASE EXHIBITS” on the grounds that their being submitted at Defendant’s trial in the instant case would constitute former jeopardy.

            At a pretrial conference held before Judge B— W— on October 13, 2000, the Defendant argued that the charges in this case should be dismissed on grounds of former jeopardy (Tr. pg. 28,LL.28-pg. 29,LL.1) and at the time the court noted that the Defendant “had another similar charge (Tr. pg.28, LL. 16-17) that was just recently dismissed.” The Defendant asserts, in one of his many issues on appeal, that the Court ruled in error in denying his motions to dismiss for former jeopardy.

            The Defendant also filed: “PETITION FOR LEAVE TO APPEAL FROM INTERLOCUTORY ORDER” on October 27, 2000, wherein he sought relief from the District Court because he believed he had been denied his fundamental right to present motions and his right to have his motions heard in this case.              

            At a jury status call hearing held before the Honorable Judge B—-W—- on November 13, 2000, in the instant case, the Court was notified by STATE’s attorney that the aforementioned STATE’S “ MOTION TO RELEASE EXHIBITS “ was noticed for a hearing on December 13^th, 2000, in Case No. CRM 99-6675, but proceeded to take up the matter even though proper notice was not given to the Defendant that there was to be a hearing on the matter and the issue of whether the exhibits from the first case would be released for use as evidence in the instant case was not properly before the Court. An “ORDER TO RELEASE EXHIBITS” was subsequently filed into the record of this case on November 14, 2000.

            On November 17, 2000, the Defendant filed in the instant case: “MOTION TO DISMISS” wherein he objected to the amended complaint being filed without STATE’S attorney having requested leave of the Court or without any order granting leave to STATE’S attorney being issued by the Court.

            Also, therein, the Defendant objected to the “AMENDED COMPLAINT” filed in this case on the grounds that it was filed over a year after the original Complaint was filed in violation of Idaho Code 19-403 which states that “A prosecution for any misdemeanor must be commenced by the filing of the Complaint…within one year after its commission.”

             Defendants “MOTION TO DISMISS” also raised objection to the action in this case and argued, by way of the brief filed in support of his motion to dismiss, that said action was in violation of Idaho Code 19-3506 due to the first case (CRM 99-6675) having been dismissed.

            On November 16, 2000, a jury trial was held in this matter and the Defendant was found guilty. The Defendant appeals his conviction on the following grounds;

ISSUES ON APPEAL

1)      Whether Defendant’s statutory right to not be placed in former jeopardy (I.C. 19-3506) was violated and whether the dismissal of Defendant’s previous case (No. CRM 99-6675) should have been a jurisdictional bar against a subsequent prosecution for the same offense.

2)      Whether Defendant’s right to due process was violated when the trial court ruled on a motion filed and set for hearing in his previously dismissed case wherein the STATE was requesting that the evidence and exhibits be released so as to be used in the instant case and subsequently ordered that the same be released over the Defendant’s objection.

3)      Whether the trial court abused its discretion and committed error prejudicial to the Defendant when it refused to give to the jury Defendant’s proposed jury instruction regarding statutory exemption to the building permit requirement.

4)      Whether Defendant was required by law to contract with a political subdivision of the STATE OF IDAHO known as —-County to have a public inspection of his private dwelling located in —-, Idaho.

ISSUE NO. 1

             The Defendant asserts on appeal that his statutory right against being placed in former jeopardy, I.C. 19-3506, was violated and that the trial court abused its discretion in denying the Defendants many motions to the Court for dismissal of the charges on the grounds of former jeopardy

ARGUMENT

            Idaho Code 19-3506 reads as follows;  “Effect of dismissal as bar. An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor…”

            At a trial held on September 6, 2000, in — County Court Case No. CRM99-6675, on motion by the Defendant, said case was dismissed by the Court and an Order was issued, dismissing the action for the same offense for which the Defendant was tried again in the instant case.

            With regards to I.C. 19-3506, it has been decided that “Like the double jeopardy clauses, this section is intended to protect individuals against repeated charges and trials for the same offense… a bare charge and dismissal is sufficient to act as a bar.” State v Badow’s Inc., 729 P2d 433 (Ct: App.1986) See also State v Barter, 80 Idaho 552 (“Offense is a misdemeanor, and dismissal of prosecution for that offense would be bar to any subsequent prosecution for same offense”).

            In State v Badow’s Inc., supra, it was also decided that: “Where the contractor violated an ordinance which required him to obtain a permit to install non-code electrical improvements, the failure to obtain a permit was a single-event offense, and because the charge had previously been dismissed, the city was barred by this section from renewing the charge with respect to the same installation.”

            The Court further stated in Barlow’s that: “In determining whether a subsequent charge involves the same offense as a previously dismissed charge, the court generally applies a ‘same evidence or same transaction’ test. The first approach focuses on whether the same evidence is required to support a conviction for each offense charged. The same transaction test focuses upon the behavior of the defendant that led to the prosecution.”

              At Defendant’s pretrial conference held in this matter on October 13, 2000, the Court noted that the Defendant: “ had another similar charge that was recently dismissed…” (Tr. pg. 28, LL. 16-17) At the same hearing STATE’s attorney W—concurred with the Defendant’s assertion here that the complaints in both cases were the same – just simply with a different date on them. (Tr. pg. 29, LL. 18-25) The Court also took notice of the fact that the only difference in the two offenses charged was the use of different dates in the charging documents. (Tr. pg. 42, LL. 19-20)

             At his trial the Defendant motioned the Court to dismiss the case, based in part, on former jeopardy grounds (Tr. pg. 69, LL. 17 – pg. 74, LL. 5) The Court subsequently noted that the Defendant’s argument for dismissal was “ well taken ” and “ that the evidence would be virtually the same in both cases, the same witnesses, the same general evidence would be involved in both cases “ (Tr. pg. 76, LL. 9-13) but denied the Defendant’s motion to dismiss on grounds of former jeopardy.

             The Defendant made numerous objections at his trial concerning the evidence from the first trial being used at his trial in this case and asserted that the STATE was attempting to try him a second time for the same offense. (Tr. pg. 122, LL. 4-11; Tr. pg. 123, LL. 24 – pg. 124, LL. 3 and Tr. pg. 133, LL. 19-23)

            In light of the fact that the STATE used the same evidence from the Defendant’s previously dismissed case in the instant case and in light of the fact that the instant case is based upon the same behavior of the Defendant that led to his prosecution in the previously dismissed case, the Court’s dismissal of the first case should have been a jurisdictional bar to the action in the instant case.

             The Defendant further asserts that since the trial complaint in his previously dismissed case reads: “ That the defendant —, on or about June, 1999, and thereafter,…”, that such wording would preclude subsequent prosecution for charges alleging that: “ on or about the 12^th day of August 1999…”  The words “ and thereafter “ should create a bar to the prosecution in the instant case since the 12^th day of August, 1999, would be included in the “ thereafter “ wording of the trial complaint in the previously dismissed case.

             The trial Court concurred with this assertion and reasoning by the Defendant when, at his sentencing hearing, it stated that: “ the way the amended complaint was worded charging Mr. — with a violation of this code and ordinance on the 12^th day of August, 1999, and thereafter; that the State would not be able to file additional criminal charges for any days after August 12, 1999, because the jury found him guilty of this as a total. And although the statute does seem to indicate that charges can be filed for each day of a violation, with the way that charge has been worded – in my opinion I don’t think that other charges can be filed after that for this particular structure. “ (Tr. pg. 266, LL. 9-19)

ISSUE NO. 2

             Defendant asserts on appeal that his right to due process was violated when the trial court in this case ruled on post trial motions filed in his previous case which were scheduled to be heard at a later date. Said motions concerned the release of exhibits and evidence that were presented in his previously dismissed case which the STATE intended on presenting in the instant case. The Defendant further asserts that said violation of the Defendant’s right to due process was prejudicial to the Defendant’s case.

ARGUMENT

             On October 10, 2000, the STATE filed with the Court: “MOTION & ORDER TO RELEASE EXHIBITS” in Case No. CRM 99-6675 and on October 10, 2000, the Defendant filed: “OBJECTION TO PLAINTIFF’S MOTION TO RELEASE EXHIBITS”.

             At a jury status call hearing held in this matter on November 13, 2000, with the Honorable Judge B— W— presiding, the Court was notified by STATE’s attorney W— that there was a hearing scheduled on STATE’s  “ MOTION TO RELEASE EXHIBITS “ in the previously dismissed case. (Tr. pg. 42, LL. 20-21) At that time also, the STATE’s attorney stated to the Court that without the evidence from the first case, it didn’t believe it would have “ as good of a case “ and also that the STATE would not proceed to trial without the evidence from the first case. (Tr. pg. 43, LL. 10-12)

The Court was also notified by the Defendant that he had objected to the STATE’s motion to have the exhibits released from the first case.(Tr. pg. 43, LL. 25 – pg. 44, LL. 1) The next day there was filed into this record an Order releasing said exhibits and subsequently said exhibits were presented as evidence against the Defendant at his trial. The Defendant, at his trial, objected on several occasions to the evidence from the first case being entered into evidence by the STATE.(Tr. pg. 122, LL. 4-11; Tr. pg. 123, LL. 24 – pg. 124, LL. 3 and Tr. pg 133, LL. 19-23)

             The Defendant contends here that he had a fundamental right to have an opportunity to be heard on the motions that were properly noticed and before the Court in the first case. In Holden v. Hardy, 169 U.S. 366, 389 the Court held that; “ the necessity of due notice and an opportunity for being heard is described as among the ‘ immutable principles of justice which inhere in the very idea of free government…’” See also Powell v. Alabama, 287 U.S. 45 at 68.

             The Defendant further contends that it was improper for the Court in this case to take up and rule on motions that were noticed for hearing in another case and not properly noticed and before the Court in the instant case.

ISSUE NO. 3

             The Defendant asserts on appeal that the trial court committed error prejudicial to the Defendant and his case when it refused to give a requested jury instruction concerning the statutory farm exemption to the building permit requirement.

ARGUMENT

             At the Defendants trial in this matter the Defendant requested that the Court give to the jury an instruction regarding the statutory farm exemption to the building permit requirement found in I.C. 39-4103. (Tr. pg. 242, LL. 24-pg. 243, LL. 4) The trial court denied the Defendant’s request and stated on the record that its reason for doing so was that; “the state code is not covering farms but that does not prohibit the County from regulating those…” (Tr. pg. 243, LL. 5-7)  The court further reasoned and stated that; “ If you don’t get a building [permit] for a structure on a farm the State will not come in and cite you for a violation because they have exempted it. But if the County ordinance covers that, then [the] County can come in and cite you for a violation of the County ordinance which has been provided to the Court in which [it] does not exempt farms. “

             Idaho Code 39-4103 reads as follows;

             “ Scope – Exemptions. – (1) The provisions of this chapter shall apply to all buildings and construction within the state of Idaho, except as otherwise provided in this chapter.                           

             Idaho Code 39-4103 (4) states that; “ Farms, as defined in section 39-4105 (17), Idaho Code shall be exempt from the provisions of this chapter…” Idaho Code 39-4105 (17) defines farms as: “ An agricultural unit of (5) acres or more.”

             The amended complaint in this matter alleges a violation of I.C. 39-4111, 39-4105 and 39-4109 and therefore, the Defendant asserts that the exemptions to the building permit requirement found in I.C. 39-4105 would be applicable.

             The Defendant respectfully disagrees with the trial court’s opinion (Tr. pg. 243, LL. 5-18) that a county ordinance can supercede and conflict with an existing state law.

             The Idaho State Constitution states that: “ Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws. “ Article XII, Section 2, Idaho State Constitution. This has been upheld numerous times by the Idaho Supreme Court. Cf. In re Ridenbaugh, 5 Idaho 371, 375 and State v. Musser, 67 Idaho 214, 219. The — County Code cannot be stretched beyond the legislative intent in creating and enacting the Idaho Building Code Advisory Act or in its adoption of the Uniform Building Code. The courts have often said that the state of the law in Idaho is the Idaho Code. It has also been held that: “ A municipal corporation possesses only such power as the state confers upon it…”

             N— B—, who is the — County Building Official, testified, at the trial of the Defendant, that the farm exemption listed in I.C. 39-4103(17) does not apply to anyone who lives in — County. (Tr. pg. 210, LL. 23 – pg. 211, LL. 1) and further testified that the county ordinance in question is more “ restive  [restrictive?] than the State Code”. (Tr. pg 211, LL. 3-4) The aforementioned — County Building Official further testified that the County passed a law [ordinance] that nullified the statutory exemption listed in the Idaho State Code! (Tr. pg. 211, LL. 20 – pg. 212, LL. 1)

The Defendant contends that such is not the case. The Defendant further asserts that, in light of the fact that evidence was presented at his trial that he was allegedly constructing a single family home on an agricultural unit of (5) acres or more (Tr. pg. 218, LL. 12-15 and Tr. pg. 106, LL. 18-23), he was entitled to have the Court give to the jury an instruction regarding the statutory farm exemption. The Defendant further contends that it was prejudicial error for the trial court to conclude that he could not claim the statutory exemption and not allow the requested jury instruction to be given to the jury at his trial.

 

 

ISSUE NO. 4

             The Defendant asserts on appeal that he cannot be required by law to contract with the political subdivision of the STATE OF IDAHO known as—County to have a public inspection of his private dwelling located in —, Idaho, and that any law that would require him to do so would be unconstitutional and in violation of his rights pursuant to the Fourth Amendment to the Federal Constitution as well as his property rights .

ARGUMENT

 

COUNTY  -  A  POLICTICAL  SUBDIVISION  OF  THE  STATE

            Counties are created for the convenience of state governments and have only the implied power to do acts necessary to enable them to exercise their express power or to accomplish the object for which they are created, and in the absence of clearly expressed terms it will not be inferred that the legislature has delegated to the county powers to do that which supercede general laws or render them unnecessary:”  State v Vantage Bridge Co. 236 P. 280, 134 Wash. 568.  “The County cannot operate in fields prescribed by organic law.” So. Dak. Employer’s Protection Assn. v. Poage, 272 N.W. 806, 809, 65 S.D. 198.  Therefore, counties are restrained from actions relating to private rights which are vested with constitutional protection unless clearly injurious to the public rights.  Counties are a branch of the Executive Department of Government and are created solely to aid in the administration of state affairs, but regulated by legislature.  Pursuant to the doctrine of Separation of Powers, not even a single individual within one department may assume the powers or duties of another department of government.  Art 2 Sec. 1 State Constitution.  Therefore, neither a county or a city governing board may initiate and enact “law”, nor may they enforce law.  “A county is a quasi corporation and a governmental agency of the state, with no independent sovereignty, and possesses only such powers as are expressly given or necessarily implied in statutes constitutionally enacted.”  Jefferson County ex rel Grauman v Jefferson County Fiscal Court, 118, S.W> 2d 181, 184, 274 Ky. 91.

            Any ordinance enacted by a County governing board to be a law in the strict sense of the word must be backed by a statute, otherwise its jurisdiction extends only to those deemed to be within the corporation.  Then, as a corporate by law, the ordinance has the force of law where appropriate.  While the county’s jurisdiction may extend from border to border for comprehensive zoning, it does not necessarily extend to every property or person within its borders.  If it were otherwise, it would be gross deprivation of all rights and would render all laws and both the Federal and State Constitutions invalid.  “An agency of government is not the government or a department or an officer of it.”  U.S. ex rel Salzman v Salant & Salant, K.C., N.Y., 41 F Supp. 196, 197.

“Government does not exist in a personal sense, or as an entity in any primary sense, for the purpose of acquiring, protecting and enjoying property.   It exists primarily for the protection of the people in their individual rights, and holds property not primarily for the enjoyment of property accumulations, but as an incident to the purpose for which it exists-that of serving the people and protecting them in their rights.”  Curley v U.S., 130 R. 1,8, 64 C.C.A. 369.

            The state’s “creatures” are “corporations”, which term also extends to individuals in corporate capacity.  This subject is thoroughly defined by the U.S> Supreme Court in the case of Hale v Henkel, 201 U.S. 43.

 

            Thus a “county” is established as a state agency and its primary function is aiding the state in state affairs; an act which cannot exceed the limited jurisdiction of the agent.

 

PRINCIPLE and AGENT

The right of an agent to act is termed his authority or power.  In some instances the authority or power must be exercised in the name of the principle, and the act done for his benefit alone.  The principle is one who being competent to do an act for his own benefit or on his own account, confides it to another person to do for him.”  Bouvier’s 1914 Law Dict., p. 2687. 

ORDINANCES

            “Ordinances are not law, they are corporate by-laws regulating those within the corporate jurisdiction.”   Bouvier’s 1914 legal dictionary defines “ordinance” as follows: 

Municipal ordinances are laws passed by the governing body of a municipal corporation for the regulation of the affairs of the corporation.  The technically more correct term “by laws” is in common and approved use.  The main feature of “ordinances” is that they are local, as distinguished from state laws.  They are not, in a constitutional sense, public laws, but mere rules or domestic regulations devoid in many respects of the characteristics of public or general laws. 

 

Ordinance is the generic term for acts of council effecting the affairs of corporations. 

1 Pol. Co. Ct. R. 405, 407.

            A municipal ordinance not passed under legislative authority is not a law of the state within the meaning of the constitutional prohibition against state laws impairing the obligation of contracts  (Hamilton G.L. & Co. v Hamilton, 146 U.S. 258), but if properly adopted under a power granted by the state legislature, it is to be regarded as an act of the state within the 14^th Amendment (No. Amer. C.S. Co. v Chicago, 211 U.S. 306).  “And it is well settled that municipal ordinances and the actions in office of municipal officials constitute state actions and are within the prohibitions of the Fourteenth Amendment.”  McCoy v Providence Journal Co. 190 F. 2d, 760, 764 (1951).

            The method of creating law in Idaho is prescribed under Article 3, § 15 of the State Constitution, which proclaims:  “No law shall be passed except by bill”.  It cannot be construed that an ordinance enacted by the County’s governing board is a law of the state unless clearly backed by statutory law.  The state’s constitution prescribed a precise methodology for creating law, thus any “bill”, even to be considered law, must be created by the legislature in the exact manner as prescribed; not by mere resolution or order of either the county or city governing board…. or by a planning association.

            The legislative grant of authority, the Local Planning Act, set forth the policies for the State pursuant to Federal law.  The applicability of this legislative act was delineated under 67-6528 as binding on all agencies/agents of government; it did not address the people.  The reason being that all law is based on status and it would be impossible for our legislature to know exactly who is in corporate capacity and who is not.

 

POLICE POWER

            Consistent with the power of Congress to regulate commerce among the states, the States possess, because they have never surrendered, the power to protect public health, public morals, and public safety, by any legislation appropriate to that end which does not encroach upon rights guaranteed by the national Constitution, nor come in conflict with acts of Congress passed in pursuance of that instrument (Mo. K. & T. R. Co. V Haber, 169 U.S. 613, 628) but the police power of the state cannot draw within its jurisdiction subject matter which has been confided to Congress exclusively by the Constitution (Henderson v New York 92 U.S. 259, 271; 1876)

            In its broadest sense, as sometimes defined, it (police power) includes all legislation and almost every function of civil government (Barier v Connolly, 113 U.S. 27, 31).  Definitions of the police power must, however, be taken subject to the condition that the State cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the Supreme Law of the Land.  In Railroad Co. V Husen, 95 U.W. 465, Mr. Justice Strong, delivering the opinion of the court, said that “the police power of a state cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise; and under color of it, objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution.”

            Each exertion of the police power has the support of presumption that it is an exercise in the interest of the public, and that there are facts justifying its specific exercise.  The presumption attaches alike to municipal ordinances, statutes and orders of administrative bodies.  However, the police power of a State has its limits and must stop when it encounters the prohibitions of the Federal Constitution. (Eubank Richmond, 226 U.S. 137; 1912; Southern R. Co. V Virginia, 290 U.S. 190-1933; Panhandle Eastern Pipe Line Co. V State Hwy. Comm. 294 U.S. 613, 625 – 1935).

 

LIMITATION ON STATE AGENCIES

            The prohibitions of the 14^th Amendment apply to all the instrumentalities of the State, to its legislative, executive, and judicial authorities and therefore, whoever, by virtue of public position under a state government, deprives another of any rights protected by that amendment against depravation by the State, violates the constitutional inhibition and as he acts in the name of and for the State, and is clothed with the State’s power, his act is that of the State.  This must be so or, as we have often said, the constitutional prohibition has no meaning, and the state has clothed one of its agents with the power to annul or evade it. Ex parte Virginia, 100 U.S. 339, 346, 347 – 1881.  Neal v Delaware, 103 U.S. 370 – 1881; Yick Wo v Hopkins, 118 U.S. 356 – 1886; Gibson v Mississippi, 162 U.S. 565 – 1896.

            It must be considered also that none of the constitutional Amendments prohibit any citizen from entering into a contract with the State, the County or the City and waiving their rights thereby.  “None of the amendments prohibit private individuals from entering into contracts respecting the control and disposition of their own property…”  Corrigan v Buckley, 271 U.S. 323, 330 – 1926.

            Thus, when a “private” man, non-franchised by his government, asks “permission” to do that which he already has a natural right to do, he waives his rights and volunteers into a regulated enterprise of government; he is, therefore, subject to the jurisdiction of the government agency.

            Regulations sought to be imposed by laws or ordinances must have real and substantial bearing upon the public health, public safety, public works or general public welfare, and a belief, no matter how fervently or widely entertained, that municipal authorities can assert some sort of communal control over privately owned lands, is at variance with the fundamental nature of private ownership and in derogation of the protection of private ownership.  Cooley Const. Lum. 7^th Ed. P. 245; Truax v Corrigan 257 U.S. 336, 66 L. Ed. 264, 27 A.L.R. 375; 42 Sup. Ct. Rep. 124.

            However, no municipality or county has the right under guise of “police power” to pass any ordinance that is unreasonable or difficult of interpretation; ordinances must be reasonable and fair in their application and bear a substantial relation to the public health, safety, morals, or general welfare.    “The rule has long been recognized by this court that constitutional guarantees of private rights are subject to the qualification that they may be cut down by governmental agencies acting under the power of the state.  The power to interfere by zoning regulations with general property rights, by restricting the kind and use of property, is not unlimited, and such restrictions cannot be imposed if they do not bear some substantial relation to the public health, safety, morals or public welfare.”  Kinner v City of Joliet, 411 Ill.,289, 103 N.E. 2d 473 – 1952.

            However, any classification permanently restricting the enjoyment of property to such an extent that it cannot be utilized for any reasonable purpose goes beyond regulations and constitutes a “taking” without due process.  The Constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of the police power.  Thus, the owner will not be required to sacrifice his rights absent substantial need for restrictions in the interest of public health, morals, safety, and welfare.  Where zoning restrictions exceed the bounds of necessity for public welfare it must be stricken as an unconstitutional invasion of property rights.  Zoning Laws and Practices – Yokely; sec. 3-11, p. 54-55, notes 42-46.  The courts are not bound by mere forms, nor are they to be misled by mere pretenses.  They are at liberty-indeed, are under solemn duty-to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended to have been enacted to protect public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palatable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the Constitution. Mugler v Kansas, 123 U.S. 623, S.Ct. 273, 31 L.Ed. 205 – 1887.

            It has been held that the exercise of police power under an ordinance may be proper in a general sense but may be unreasonable and confiscatory as applied to particular property.

White v City of Twin Falls, 81 Idaho 176, 338 P.2d 778 – 1959; Cole-Collister Fire Protection Dist. V City  of Boise, 93 Idaho 558, 468 P.2d, 290 – 1970 (46 other citings).  See also Zoning Laws & Practices – Yokely, p. 69, Sec. 3-15, citing nine cases.

            While your local zoning department and/or governing board may tell you one thing, the Courts will generally tell you quite another story altogether.  The total extent of “zoning” is limited to Health, Safety, Morals or General Welfare and this must be proved beyond any doubt.  Discrimination in zoning is usually thought of in terms of the injustice to the landowner, but in reality, it is also a wrong done to the community’s land use program.  Udall v Hass, 21 N.Y. 2d 463, 288 N.Y.S. 2d, 888, 235 N.E. 2d, 897 – 1968.  “Generally speaking, it is within the rights of the Municipal legislative authority, acting under the “general welfare” clause, to determine what ordinances are required to protect and secure public health, comfort and safety, but it may not, under guise of such power, enact ordinances which are unreasonable, or discriminatory, or an invasion of constitutional rights.”  McKelley v City of Murfeeboro, 162 Tenn. 304, 36 S.W> 2d, 99-1931, citing Std. Oil Co. v City of Kearney, 106 Neb. 558, 184 N.W. 109 – 1921.

            Does the regulation involve a constitutional right?  This is a very lengthy subject today, because most property owners are deeply involved in corporate capacity or have waived their rights by entering into a contract with government.  If one has an equitable interest in a mortgage on a “marketable” title (excluding the object of title”, does he have a property right” Does he have personal rights?  Rights founded in law or statutes are mere legal rights.  Inalienable rights (God’s Law) are not granted by government through codes or statutes and can only inhere in and exist between moral beings.  Government was instituted for the protection of the people, and it was instituted by the people acting in their sovereign capacity.  Thus, “rights” precede government or the establishment of states.  Both legal rights and inalienable rights are protected by the Constitution of the United States.  “In exercising the police power of a state, there are no limits except the restrictions outlined in the written constitution.”  McLeon v Arkansas, 211 U.S. 539; Jacobson v Massachusetts, 197, U.S. 11; 1 Thayer Constitutional Law, 720.

            There is a monstrous difference in restricting or regulating the ability of a person to exercise a right than in prohibiting and commanding actions, or the lack of, and punishing by penalty, fines, and imprisonment, persons who fail to comply when the action committed by the person has not, in fact, caused any loss or damage of another’s life, liberty or property as opposed to those classes of crimes where another’s life, liberty or property has been damaged or lost.  What happens when local government itself causes a loss of property to either an individual or the general welfare; are the administrative officials responsible held liable?  Will any agent or agency of government take an action to correct the wrong done?  Will the Governor who is obliged by his office to uphold the laws of the State (Art. 4, Sec. 5, State Const.) intercede and bring a disciplinary action against the officials who committed the wrong?  NO!  Thus we see a very unreasonable and arbitrary situation wherein the laws are usurped and have become discriminatory.

            Regulation must be reasonable.    Is a property owner to be denied the right to remodel his home or garage, for instance, unless it is done to the specifications determined by zoning or building ordinances?  What if the specifications exceed the property owner’s financial ability, particularly when what he desires to do is within his financial ability and will produce pleasant appearance which is not injurious to the general welfare, or which may even exceed the minimal standards of the building code? 

            The right of the landowner to use his land is an important incident of ownership.  It is an interest highly regarded by the community, carefully protected by constitutional limitations under the 5^th and 14^th Amendments, and vigorously affirmed by the courts.”  The Standard State Zoning Enabling Act endeavors “to provide, so far as it is practical to forsee, that proper zoning can be undertaken under it, but without injustice and without violating property rights.”

            In effect, the County is but another state agency; the purpose of its creation and existence is to administer the state’s police power (zoning) within its prescribed boundary.  It is charged with the duty of administering this power over the states “creatures” within prescribed limitations and only within its jurisdiction where appropriate.

 

LOCAL PLANNING ACT

Title 67, Chapter 65, State of Idaho

            The authority and power granted to counties of Idaho for implementing local zoning is to be found under Title 67, Chapter 65, entitled “LOCAL PLANNING ACT”.  This Act was enacted by the state legislature in full compliance with the Federal mandate known as the Standard State Zoning Enabling Act  which was first passed by the Department of Commerce in 1923.

 

PURPOSE

67-6502.   The purpose of this act shall be to promote the health, safety, and

general welfare of the people of the state of Idaho.

Wherein the state acts in the name of the people, the state itself is but an “agent” of the people.  This Act prescribes the specific outline for implementation.  The terms “health” and “safety” as used in counter-distinction to general health and general safety relate only to the individual (see Anderson on Zoning); the people as a whole are covered under “general welfare”.

“No state shall make or enforce any laws which shall abridge the privileges and immunities of citizens of the United States.” Slaughter House Cases (1873), 16 Wallace 36.

            Nor can a “county” or “municipal corporation” abridge the privileges and immunities of citizens.  The county is constitutionally created, in Idaho, for the sole purpose of ;aiding the state in the administration of its affairs.  While this Act is the enabling act, counties must administer the state’s authority with full recognition of all superior laws.  The state constitution authorizes local police regulations under Article 12, § 2.

 

ARTICLE XII

CORPORATION, MUNICIPAL

Local Police Regulations Authorized.  Any county or incorporated city or town may make and enforce within its limits, all such local police, sanitary and other regulations as are not in conflict with its character or with general laws.

            The constitution recognizes the county as being a quasi corporate agency (as if corporate) of the state; the legislature, in compliance with the Federal mandate, prescribed the creation of a “comprehensive plan” upon which zoning is predicated.  It is this “plan” which, in effect, is the county’s character.  If the “plan” is improperly created and enacted, it effects the county’s capabilities as well.  “A county has authority to enact a subdivision ordinance under the provisions of this article (Art. 12) subject to the following restrictions:  (1) the ordinance or regulation must be confined to the limits of the governing body enacting same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an unreasonable or arbitrary enactment.”  State v Clark (1965), 88Idaho 365, 399 P.2d, 955.

            The very authority claimed for initiating police regulations also restricts the county to the intent and purpose specifically provided for by general laws concerning “limits” on this Agency of the state.  Limits of the governing body (1)are those set by the enabling act, Title 67, Chapter 65, entitled LOCAL PLANNING ACT,  and by the prohibitions of both the Federal and State Constitutions.

            Conflict with other general laws (2) includes a failure, on the part of administrative personnel, to recognize valid statutes and openly violate statutory law, whether unintentional or intentional.  In reference to conflict with general laws, it was held to include laws setting out procedural requirements for such police regulations (see Citizens for Better Gov’t. v County of Valley, 95 Idaho 320-1973).

            Unreasonable or arbitrary (3) zoning enactments are, therefore, prohibited by this article.  What is “unreasonable” is a matter for the courts to decide; “arbitrary” covers a disputed issue, between a property owner and an administrator, wherein valid, proper data is presented in opposition to an ordinance; particularly wherein the administrator, for whatever reason arbitrarily refuses to consider the property owner’s argument.  In the case of conflict that which is paramount necessarily controls that which is subordinate (Northern P.R. Co. v N.D., ex rel Lawyer 250 J.S. 135).

            Unfortunately all too many officials, administrators, and staff personnel fail or refuse to recognize the Constitution of the United States as the law of the land; yet these same people will quote the state constitution as one of their authorities.  And when they do, they must also recognize other state constitutional mandate; such as:

STATE INSEPARABLE PART OF UNION.  The State of Idaho is an

inseparable part of the American Union, and the Constitution of the

United States is the supreme law of the land.  Art. 1, Sec. 3; State Constitution.

The State Constitution also authorizes supreme power to the people under Article 1, § 2 which states:  “Political Power Inherent In The People.  All Political power is inherent in the people.  Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary.

The FIRST requirement placed on local government under Title 67 is:

            67-6502 (a)  To protect property rights and enhance property values.

This was considered the most important aspect of our scheme of government and laws that both the Federal and State legislation, along with the constitution set this condition FIRST in the purpose of local zoning.  It extends to every agency and every agent of government and they shall recognize this statute as their primary duty and function as a public servant.  All ordinances must respect private property and property rights.  It is important that the people of the state understand exactly what “property” is and what the incidents of property ownership are.

            OWN.  The word “own” as applied to land, means all the lands

claimed and possessed by the party termed “owner”.  The right to own

and manage property is a natural (unalienable) right.  73 C.J.S.,Sec. 13, p. 181.   

            Ownership of property has been defined as the right by which a thing belongs to an individual to the exclusion of all others (see Scandinavia Belting Co. v Asbestos, etc. Works, N.Y. 255, 257 F. 937, 169 C.C. A. 87m certiorari denied, 39 S. Ct. 494, 250 U.S. 644, 63 L. Ed. 1186; 50 C.J.S., p. 778, Note 74).

            “Perfect ownership is the right to use and dispose of one’s property in the most unlimited manner, and nothing prevents an owner from dismembering his property and from disposing of each separate dismemberment as he pleases.”  (Amerada Petroleum Corp v Rees, 196 So. 558, 195 La. 359).  “Perfect ownership gives the right to use, to enjoy, and to dispose of one’s property in the most unlimited manner, and these rights, termed the ‘usus’ ‘fructus’, and ‘abuses’, must be united in the same person to constitute perfect ownership. (Wilson v Aetna Ins. Co. La. App., 161 So. 650, 652).

            The essence of the ownership of a thing is that aid which organized society will, through the courts as its agents, give one individual, to the exclusion of all others, to take or keep possession of it.  Property belongs to a person as long as he has the right thereto and the power by law to enforce and protect that right, but ownership is not a privilege conferred by government but a right which government is organized to protect (50 C.J.S., P. 400, Note 34(d).

            “The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individualism the universe.  It consists in the free use, enjoyment, and disposal of all a person’s acquisitions, without any control or diminution save only the law of the land.”  1 Bl. Comm., 138; 2 Bl. Comm., 2, 15; Great Northern Ry Co. v Washington Elect. Co., 197 Wash. 627, 86 P. 2d. 208, 217.

            In strict legal sense the word “Property” signifies valuable rights or interests protected by law, and in modern legal sense “property” includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have in any and everything that is subject of ownership by man.  Too, the term comprises all rights which are incident to the use, enjoyment and disposition of tangible things; the bare possession, with color of right, of anything of value; the right to be protected in one’s possession of a thing or in one’s privileges belonging to him as an individual, or secured to him as a member of the commonwealth; and including the right to contest judicially any invasion of that which one possesses.  (C.J.S., P.140; five other citings).

            “Since “property” in its strict legal sense does not mean the physical object itself, but rather certain rights over the physical object, it is necessary to look beyond the physical object for the true definition of the word and thus in terms of right, interest, dominion, domination, “property” is defined as meaning exclusive right to possess, enjoy, and dispose of the land….the Federal Constitution.  Peabody v. U.S., 43 S. Ct. Cl. 5, 16; Texas Co. v Hauptman, C.C.A. Cal. 91 F.2d, 449, 451.

            Now that there is a definition of “property” set forth, we can consider what is a “property right”.  In Garden Court Appt’s v Hartnett, Super, 65A.2d, 231,232 (re: 73 C.J.S., Sec. 2-3, p. 154) it states:  “for violation of which (property right) recourse may be had to courts.”  This is not without limitation, however, since NO landowner has a right in property which would allow him to injury or impair the rights possessed by his neighbors or the community.  This is defined in Common Law as well as under the Police Power of the State.

            “AND THE RIGHT OF THE LANDOWNER TO BUILD ON HIS PROPERTY ACCORDING TO HIS OWN DESIRES, FREE OF UNCONSTITUTIONAL OR ARBITRARY RESTRAINT IS A PROPERTY RIGHT.”  Bryan v Kennett, supra, Ind.; Adams v Merrill, 85 N.E. 114; 87 N.E. 36, 45 Ind. App. 315; 50 C.J.S., P. 740, note 85; Garden Court Appt’s v Hartnett, Supra; 73 C.J.S., Sec 2-3, p. 154.

            Exactly what are “Property Rights” is defined in a multitude of legal reference books, including the Federal Code (5 U.S.C.).  For complete information, please review “Words & Phrases”, “Corpus Juris Secundum”, “5 U.S.C.”, “Anderson on Zoning”,  “Zoning Laws & Practices”, “Basic Property Laws”, etc.  These publications are available to everyone at the Law Library.  Here are but a few definitions:

            The right to dispose of vested interest in property by will is a property right.  Warren v Sears, 22 N.E. 2d, 406, 408, 127 A.L.R. 595, 303 Mass. 578.

Right of owner to fence land is a property right which cannot be unreasonably interfered with.  Williams v City   of Hudson, 262, N.W> 607, 608, 219 Wisc. 119.

Privilege of property owner to use his own property in his own way and for his own purpose is both a liberty and property right, but subject always to exercise of police power.  Hanifin Corp. v City of Berwin,  Ill. 115, N.E. 2d, 315, 319, 1 Ill. 2d, 28.

The right to have one’s property in its original condition not changed by the well-meaning but wrongful conduct of others is a property right, the invasion of which gives right to damages.  Brompton Realty Co. v City of N.Y., 91 N.Y.S., 2d, 780, 783, 196 Misc. 218.

Certain private rights arising from ownership of property contiguous to street or highway, which are not common to the public in general, constitute property or property rights of which an abutter cannot be lawfully deprived.  Kelbro Inc. v Myrick, 30 A. 2d, 527, 529, 113 Vt. 64.

The “Property Right” secured by constitutional provision, that no citizen shall be deprived of property except ;by due process of law of the land, consists not merely in the ownership and possession of property, but also in the unrestricted right of the use,  enjoyment and disposal thereof, subject only to the police power.  Veron’s Ann. St. Const. Art. 1, Sec. 19; Houston & No. Tex. Motor Freight Lines v Johnson, Tex. Civ. App. 159 S.W. 2d, 905, 907.

Right of property owner to use property for his own advantage and enjoyment is a “liberty” as well as a “property right” within the meaning of Constitution.  N.T. Hegeman Co. v Mayor & Council of Borough of River Edge, 69A. 2d, 767, 769, 6 J.J. Super. 495.

A zoning regulation which limits or restricts an owner of property in his freedom of use deprives such owner without compensation to the extent of such owner without compensation, to the extent of such restriction of his liberty, and also a property right within the meaning of the Constitution.  N.T. Hegeman Co. v Mayor & Council of Borough of River Edge, supra.

The right to the benefit of a contract is a “property right” which cannot be destroyed without entitling the injured party to damages.  Shannor v Gaar, 6 N.W. 2d, 304, 307; 233 Iowa, 38.

            These are but a few of the multitude of “property rights” defined by our courts.  “Protection of life, liberty and property rests with the states; the 14^th Amendment furnishes guarantees against encroachment by the states on those fundamental rights which belong to citizenship and which state governments were created to secure.”  In re: Kemmler, 130 U.S. 436; 10 S.Ct. 930 , citing U.S. v Cruickshank, 92 U.S. 542 and Slaughter House Cases, 16 Wall (U.S.) 36.

            Any ordinance, order or resolution that prohibits the property owner from use and enjoyment of ownership, and diminishes the value of same must be considered to be in conflict with general laws of the state.  In particular 67-6502(a) and (c): 

In determining whether a zoning ordinance is unreasonable and confiscatory

to the extent that it constitutes an unlawful invasion of property rights, there

must be considered the character of the neighborhood, the zoning classification,

and the use of nearby properties, the extent of which property values are

diminished by the particular restrictions involved, and the gain to the public

compared with the hardship imposed on the individual owner.  LaSalle Nat’l Bk, v City of Park Ridge, 223 Ill. 2d, 239, 177 N.E. 2d, 837 – 1961; Rams-Head Co. v City of Des Plains, 9 Ill. 2d, 326, 127 N.E. 2d, 259-1956l 1^st Nat’l Bk & Trust Co o Evanston v County of Cook, 15 Ill. 2d, 26, 153 N.E. 2d, 545-1958; Wilson v Village of Deerfield, 55 Ill. App 2d, 314, 204 N.E. 2d, 780-1965; 1^st Nat’l Bk of Skokie, 3 Ill. App. 201, 278, N.E. 2d, 496-1971.

 

In addition to 67-6502(a) there are listed ten more subjects which define the “purpose” of the Local Planning Act.  Each and every subject so listed is a condition upon which the City’s and the County’s Comprehensive Plan must be developed, and to which all ordinances must adhere.  The remaining ten subjects are: 

67-6502(b)  To ensure that adequate public facilities and services are provided to the people at reasonable costs.

67-6502(c)  To ensure that the economy of the state and localities is protected and enhanced.

67-6502(d)  To ensure that important environmental features of the state are protected and enhanced.

67-6502(e)  To encourage the protection of prime agricultural, forestry and mining lands for production of food, fiber and minerals.

67-6502(f)  To encourage urban and urban-type development within incorporated cities.

67-6502(g)  To avoid undue concentration of population and over-crowding of land.

67-6502(h)  To ensure that development on land is commensurate with the physical characteristics of the land.

67-6502(I)  To protect life and property in areas subject to natural hazards and disasters.

67-6502(j)  To protect fish, wildlife and recreation sources.

67-6502(k)  To avoid undue water and air pollution.

 

            These eleven subjects are considered of prime importance to the state and its people and are the measure of the police power of the state.  Each of these subjects can be used to determine the validity and/or applicability of zoning ordinances.  The state has set these conditions as the “duty” and “limits” of its agent.

            The governing board, whether it be the County Commissioners or the City Council, is endowed not only with the power and authority of this act, but is limited by the prohibitions as well.  Every City and County shall exercise the powers conferred by this chapter (67-6504).  Of particular importance is 67-6528. 

67-6528  Applicability of ordinances.  “The State of Idaho, and all its agencies, boards, institutions departments, and local special purpose districts shall comply with all plans and ordinances adopted under this chapter unless otherwise provided by law.

All “government entities: must adhere to the terms and conditions prescribed by our Legislature, and may not use the authority granted by this act to impose regulations and restrictions which are arbitrary or confiscatory (State v Clark supra) or which are in excess of those provisions expressly set forth b the legislature.  It is to be noted that the applicability of this act was not imposed upon the people of the State of Idaho. The reason for this omission is that only those individuals subject to corporate regulation would be involved and our legislature had no way to distinguish those people from others.  Other statutes automatically exclude non-applicable entitles by directing the applicability to corporate entities in trade, commerce and industry via zoning regulations.

 

            Only the Governing Board may adopt a plan or suggestions as an ordinance, no one else.  Therefore, in a contested issue it is only the governing board who may waive the effect of an ordinance upon proper showing by an individual that said ordinance is inapplicable due to his particular situation.

            The Primary purpose of a comprehensive plan is to protect others, and the general public from uses of property, which will, if permitted, prove injurious to them.  From a purely procedural standpoint, the planning and zoning commission prepares the comprehensive plan and sends its recommendations to the local governing board for adoption.  That makes the governing boards responsible for any errors, omissions or unconstitutional procedures and applications, which may be detrimental to either individuals or the general welfare.

 

COUNTY COMMISSIONERS

            Idaho Code 67-6502 stating the purpose of the Local Planning Act is not apparent in the Comprehensive Plan created by the — County Board of Commissioners; adopted July 28, 1998.  No where does the plan address “property rights”, “protection of private property” or the “enhancement of property values”, nor does it distinguish between private property and public or corporate properties.  It does, however, take away property rights.

            Assuming for a minute that the — County Board of Commissioners is a legal entity under the County’s jurisdiction, where does — County Board of Commissioners get authority to create general law of the state?  What specific statute of the state proposes this same criteria?  How can an ordinance — County Board of Commissioners, even though adopted by the county, supercede both the Federal and State Constitution? Where rights secured by the constitution are involved there can be no rule-making legislation which will abrogate them.  Miranda v Arizona, 384 U.S. 436.

            What if two citizens, one of them the “absolute” owner of a tract of land and the other is one who is desirous of purchasing a small portion thereof, enter into a private contract for sale/purchase?  Can the owner legally be detained and/or prevented form selling?  Particularly if it cannot be proved to be injurious to the general welfare?  Under what law does the owner loose his unalienable right to property?  At what point, and how, was the obligations of contract under Article 1, § 10 of the Federal Constitution over-turned?  These questions need to be answered by the County if it is to continue to be responsible for deprivation of property and property rights of private individuals. 

            I contend that—County’s land usage plan (Comp. Plan) as devised by the —- County Board of Commissioners, is not compatible with paramount law and may even be questionable where general law is concerned.  Specific tracts and parcels of land which are within the corporate jurisdiction of the governing board may be regulated beyond the legal definition of the terms used in “ordinances” pursuant to their corporate character (Plan); private property held in “absolute” ownership cannot.  Any lot located in a commercial subdivision, or otherwise, may eventually gain the status of “absolute” ownership and, at which time, the owner may claim this status.

            Many restrictions now faced by property owners, which deprive them of property rights, are not necessarily enacted by general law, nor is specific authority granted or even implied which would permit or authorize a county to hold with any ordinances which may be an unconstitutional invasion of private property rights.  Courts all across the land have upheld the rule that police power must cease when it encounters organic law.  Local government personnel are seldom educated in this respect.

            Any governing board which fails to adhere to the limits of the enabling act, as in the case of total delegation of power to — County Board of Commissioners to create the comprehensive plan in its entirety, may be deemed guilty of “Neglect of Duty” in which general law imposes a $500.00 fine.  (31-855).

 

REGULATE AND RESTRICT

            “Within a zoning district, the governing board shall, where appropriate, establish standards to regulate and restrict….”  I.C. 67-6511.

            Why did the Legislature insert “where appropriate”?  If a County had total and complete jurisdiction over ever property and person the term “where appropriate would not have been necessary.  This is proof of a restriction on the Counties and Cities wherein their authority is limited to corporate capacity.  Were it otherwise it would have been boldly proclaimed so in the code; it does not!

            REGULATE.  To adjust by rule or method, or established mode; to direct by rule or restriction; to subject to governing principles or law (State v Ream, 16 Neb. 683, 21 N.W> 398). Bouvier’s Law Dict., p. 2860 (1914 ed).

            Remember, the Local Planning Act embraces all of the people of the state, not just —- County (or any other particular county).  Ordinances, being defined as corporate by laws address corporate jurisdiction.  Therefore, inasmuch as the county is an agency of the state created for the sole purpose of aiding the state in the administration of its affairs, it cannot exceed its prescribed limits.  The state does not claim total and absolute jurisdiction over every property and individual, nor can it; neither can its agent, the county, make such an assumption and claim.

            The courts have consistently held state actions to include the actions of a state’s governmental subdivisions and its municipal officials.  Briscoe v Bank of Kentucky, 36 U.S. (11 Pet) 257, 318-1837.

            This authority (67-6511), more than others, is frequently taken out of context and applied to every property and to every property owner within the county’s boundaries.  But general law makes the distinction “where appropriate”, and does not grant a broad coverage which is all-encompassing.   It must be an accepted fact that our lawmakers understand the meanings of words used, otherwise, the statutes can have no meaning.

            “Property Rights” have been established in antiquity and are under the protection of both the Federal Constitution and the State Constitution.  When we refer to the term “principles” we understand truths or propositions so clear they cannot be proven or contradicted unless by propositions even clearer (Bouvier’s p. 2706).  Thus, under Legislative authority, our Governing Board may “where appropriate”, regulate and restrict height of buildings, yard easements, set backs, etc, among its corporate creatures.  We must also consider that our Legislature cannot enact an unconstitutional statute, therefore neither can either the County or the City adopt an ordinance in counter to constitutional prohibitions.  To “Regulate and restrict” was never meant to mean impede, deny, restrain, etc., this was NEVER the intent of the lawmakers.     Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.  Miranda v Arizona, 384 U.S., 436, p. 481.

            When referring to “governing principles” it is to be noted that there are two kinds of principles; one when they are known as axioms or maxims; “no one can transmit rights which he has not”; “the agent follows the principal”, etc. the other class is simply referred to as first principles; they are so clear that they cannot be proved by anterior and more manifest truths, they are universally received; they are so strongly impressed on our minds that we conform ourselves to them what ever may be our avid opinions.  A court does not establish, but recognizes principles.  The Legislature has firmly set the duty of the governing boards with regard to “regulating and restricting…” 

Any plan, or part of a plan, adopted by resolution is only temporary.  A “resolution” or “order” is not law, but merely the form in which the legislative body expresses an opinion.  Chicago & N.P.R. Co. v City of Chicago, 51 N.E. 596, 598, 174 Ill. 439; Words & Phrases, p. 261.

 

STANDARDS

            “STANDARDS” is the big argument in any county or municipal corporation.  Each governing board may develop “standards” (67-6518) for a variety of subjects…. All of which address corporate entity; public use. 

 

PERMITS

            Probably one of the most important aspects of “zoning” is the permit-granting process (67-6519).  Property owners are led to believe that whenever anyone attempts to do anything whatever with his property he must first apply for a “permit”.

            Private property (particularly in absolute ownership) and private men are only subject to control when it is proven beyond any reasonable doubt that their endeavors will be injurious to their neighbors or to the general welfare.  If the private man in absolute ownership is required to apply for a permit it must be considered that he may be denied, thus, there is a deprivation of property rights which is actionable under Civil Rights Laws in Federal Court.  It is not necessary to prove a physical taking of property, but only such substantial interference with the owner’s use of it, to amount to a taking… Todd v U.S. (1961) 155 Ct. CL111.

The permit process has three primary purposes.  First, to induce the property owner, by intimidation, to voluntarily waive his rights by signing a contract which places him within the jurisdiction  of the governing board.  Second, to assure compliance with ordinances.  And third, as notice to the assessor’s office of new construction or alterations so that property taxes may be adjusted and/or applied accordingly.

All law is based upon status; however, it is not the practice of your local government to consider this aspect of law.  If you build or remodel without a permit, your structure may be “red tagged” (a notice to cease immediately).  In the past, permits have been revoked; structures ordered destroyed.  Pursuant to court decisions or law, a permit once issued, may not be revoked… except… issuance upon fraud or issuance by one whom is not legally authorized to issue a permit.

Where the landowner complies with existing statutes and ordinances, he is entitled to whatever permit may be necessary in the exercise of his right to improve his property.  The right to build would be utterly lacking in substance if its exercise could be prevented by the arbitrary and capricious refusal of a permit or if the granting or denial of the permit rested solely in the discretion of some official or board.  Dade County v Jason, 278 So. 2d 311 (Fla. App. 1973); Barnes v Austin, 199 S.E. 2d 906 (Ga. 1973); Ready to Pour, Inc v McCoy, 511 P. 2d 792 (Idaho 1973).

An ordinance will be held invalid where it vests a broad discretion in local officials in granting or refusing a permit (many citings).  The courts have generally held, in a long line of decisions, that where a permit has been granted by an officer or board authorized to issue it and the permitee has acted in reliance thereon and incurred substantial expense, the right to continue construction under the permit becomes a vested right which the municipality or county has no right to violate by revocation, recall or otherwise (3 ½ pages of citings).  The Court of Civil Appeals of Texas held that the city of Snyder, Texas was not entitled to an injunction against the construction of a building, even though the owner had not obtained the required permit and the municipal authorities were authorized by statute to take action in such cases, where building fully complied with the requirements of the law and a substantial part of the work has been done.  City of Snyder, Texas v Cogdell, 342 S.W. 2d 201 (Texas Civ. App. 1960).

The “permit” is a license and it must be uniform upon every class of subject within the jurisdiction or within the particular zone, it cannot be arbitrary.  Corporate creatures of government can be regulated; private men, in exercising their inalienable right to property, cannot.  A permit implies consent given or leave granted (Loosey v Osner, 4 Bosw. N.Y., 391); it has been defined to mean; “to allow by not prohibiting” (Com. V Curtis, 9 Allen, Mass., 266).  It is “permission granted by competent authority”, therefore, when applying for a permit we state that we are incompetent and ask to be controlled and watched over.

            Statutory law (67-6519) requires that all applications for a permit shall be submitted to the Zoning Commission for its recommendations, however, this is only for applications for permits required and authorized under this chapter.  Any  permit granted or denied by a commission, shall state:  (a) the ordinance or standards used in evaluating the application; (b) the reason for approval or denial by a commission; and (c) the action, if any, that the applicant could take to obtain a permit.

            The important part of this statute states as follows:  “An applicant denied a permit or aggrieved by a decision may within sixty days after all remedies have been exhausted under local ordinances, seek judicial review under the provisions provided by section 67-6519 (b) through (g) and 67-5216 of the Idaho Code.

 

COMMISSION HEARING BOARD

            The Code stipulates, under 67-6522 that “appropriate permits as defined by local ordinance shall be forwarded directly to the county assessor”.   That is one of the purposes of the permit process.  It makes it easier for the County Assessor to assess property.  (Re:  Title 63 for duties of Assessor).  When applying for a building permit the Building Department evaluates the cost and bases the permit fee upon a percentage of that evaluation… you have nothing to say about it.  But the courts have had plenty to say about it.  It is only the owner of property who may properly set the value, no one else.  When a government agent, whether trained in real estate appraisal or not, sets the value, it must be deemed arbitrary.  When the permit fee is based upon the cost of the structure to be built, it must be considered to be “revenue raising” this illegal.

            Regulatory fees for building permits must be reasonable in amount and fair in proportion to the cost of regulating and inspecting buildings or they will not be sustained.  Since the police power may not be used as a subterfuge to enact and enforce what is, in reality, a revenue-raising ordinance, the general cost of government may not be defrayed under guise of reimbursement for the special services required by the regulation and control of new buildings.  Daniels v Borough of Point Pleasant, 23 N.J. 357-1957; Merrelli v City of St. Clair Shores, 96 N.W. 2d 144-Mich. 1959; Univ Custom Homes, Inc. v Township of Redford, 96 N.W. 2d 151-Mich., 1959; M.W> Watson v City of Topeka, 400 P. 2d 689, Kan., 1965; Bon Air Estates, Inc. v Village of Suffern, 302 N.Y.S. 304, 1969; Weber Basin Home Bldr’s Assn. V Roy City, 487 P. 2d 866 Utah, 1971; holding increase in bldg. Permit cost from $12 to $112 to be constitutionally impermissible where obvious purpose was to raise revenue for general fund of city.  Colonial Oaks West, Inc. v Township of East Brunswick, 61 N.J. 560, 1972.

            The increasing expenses of a municipal government caused by the normal growth of a city are said to constitute the public problems of a community, and it has been held that expenses incurred solving such problems should be defrayed by the general municipal revenues that are available and not by excess fees exacted for the wiring and plumbing of new houses, particularly where such fees are out of proportion to the cost of housing regulation to such extent that they assume the form of taxation.  Merrelli v City of St. Clair Shores, 96 N.W. 2d 144, Mich, 1959; Beachlawn Bldg. Corp v. City of St. Clair Shores, 376 Mich. 261, 1965, holding builder entitled to recover fees paid for permits under ordinance held invalid.  Weber Basin Home Bldgs. Assn. V Roy City, 487 P. 2d 866, Utah, 1971.

            Under the Local Planning Act the Governing Board may provide by ordinance for the enforcement of this chapter (67-6527) or any ordinance made pursuant to this chapter; the same being declared a misdemeanor.  No one in the executive department may enforce “law” or set penalties arbitrarily.  Any ordinance not made pursuant to this Act (Title 67, Chapter 65) are non-applicable and non-enforceable.

            In effect, this Enabling Act is more controlling on government entities than on the citizenry, and well it should be.  The grant of power and authority of the act was delegated to government entities, but within prescribed limitations against deprivation of private property rights.   It clearly establishes that it is “corporate creatures” who are subject to its terms and conditions, not private people with proper status.  In other words, the Legislature, pursuant to Federal Law, granted to Counties and Municipalities the power to enact ordinances for the purpose of controlling its “creatures” which are within the jurisdiction of the Governing Boards; and no more.

            Please remember that “within the jurisdiction” of the Governing Board zoning ordinances have the same force as a general law duly enacted by the state legislature.  All laws and ordinances are deemed to be lawful and constitutional and it is only the specific application of a law or ordinance upon an individual which may be deemed unlawful or unconstitutional as it applies to that particular individual.

 

DUE  PROCESS

            Earlier I defined the term “ordinance” as being a “corporate by-law”; now I will show you the definition of “by-law”:

BY-LAW   Rules and ordinances made by a corporation for its own government.  The office of a by-law is to regulate the conduct and define the duties of its members towards the corporation and among themselves.

            The power to make bylaws is usually conferred by express terms of the charter creating the corporation.  When not expressly granted, it is given by implication and it is incident to the very existence of the corporation.  When there is an express grant limited to certain cases and for certain purposes, the corporate power of the legislation is conferred to the subjects specified, all others being excluded by implication. 

            By-laws, when contrary to the constitution or laws of the state or United States are void whether the charter authorizes the making of such by-laws or not; because no legislature can grant power larger than that which it possesses.

            But a by-law, void as against strangers or non-assenting members, may be as good as a contract against assenting members.  It has been held that third parties dealing with corporations are not bound to take notice of by-laws.  Fay v Noble, 12 Crush (Mass) 1. 

Bouvier’s 914 Law Dict., p. 418.

            The subject matter herein being presented concerns the application of “by-laws” of a quasi corporation, the county, upon “strangers and non-assenting members”.  Zoning may legally only address the use of land, it cannot address ownership; therefore, in all too many instances, zoning may be viewed as being subversive of constitutional protection of private property over which they have no authority until one’s endeavors are proven injurious to the general welfare, then the police power may be employed.

            However, not all government administrators are anti-property or anti-rights; many make a real effort at proper administration and they are to be commended for their efforts.  This subject matter does not address those administrators, but rather the over-inflated egos, the superior attitude, and gross arbitrary actions of bad administration; abuse of power under color of law and/or color of office.  “County government is neither special privilege nor special immunity.”  McDonald v Droust, 11 Idaho 14, 81 P. 60, 69 L.R.A. 220.

            And the United States Supreme Court has frequently ruled:

Failing to establish criteria other than the uncontrolled discretion of a public official has constantly been hold by the U.S. Supreme Court to be a denial of due process.

Hague v C.I.O., 307 U.S. 469

Schneider v State, 308 U.S. 147, 160

Cantwell v Conn. 310 U.S. 296, 306, 307

Saia v N.Y. 334, U.S. 558

Kunz v N.Y. 340 U.S. 290

 

            The 16^th American Jurisprudence, 2d at 547 has held the term “due process”, as used in the Federal Constitution, to be the exact equivalent of the phrase “Law of the Land” as used in the Magna Charta.  The Federal Constitution is the Law of the Land.  “Constitutional principles may not be violated for administrative expedience.”    State of Maryland v Environmental Protection Agency, C.D. 4 (1975), 530 F. 2d 215, certiorari granted 96 S. CT. 2224, 426 U.S. 904, 48 L.Ed. 809.

            The 14^th Amendment recognizes citizenship of the United States as distance from the States; forbids the making or enforcement by any state of any laws abridging the privileges and immunities of the United States; and secures all private people against any state action which is either deprivation of life, liberty or property without due process or denial of equal protection of the law.  (Bouvier’s).  Failure to recognize prohibitions of a state constitution, while enforcing the authorizations granted by that same instrument is a denial of equal protection of the law.  Government’s purpose is the protection of the people.  

No state shall make or enforce any laws which shall abridge the privileges and immunities of citizens of the United States.  Slaughter House Cases, 16 Wallace 36.

 

And it is well settled that municipal ordinances and the actions in office of municipal officials constitute state action and are within the prohibitions of the Fourteenth Amendment. McCoy v Providence Journal Co. 190 F. 2d, 760, 764 (1951).

 

                        Acts of a state’s political subdivisions ;and its administrative agencies, serving the public purpose and supported by public funds, are equally within the constitutional requirements.  Henry v Greenville Airport Commission.  279 F.2d 751, 753 (1960).

 

            The Courts have constantly held state actions to include the actions of a state’s governmental subdivisions and its municipal officials.  Brisco v Bank of Ky. 36 U.S. (11 Pet) 257, 318.

 

                        A state can only act through its agents; and it would be absurd to say, that any act was not done by a state which was done by its authorized agents.  Chicago, Burlington & Quincy R.R. Co. v Chicago, 166 U.S. 226, 233.

 

            As you can see the actions of both county and municipal agents are the actions of the state and they are subject to 14^th Amendment prohibitions.  All agencies and agents of government are bound by the Federal and State Constitution, Federal Code and decisions of both the J.S. and the State Supreme Courts.

            Keep in mind that there is no immunity for any government agent; if any judicial action is necessary, it may be directed toward specific individuals and not necessarily against either the city, county or state.  This is pursuant to acts of congress and high court decisions.

Owen v City of Independence, Mo., et al., 445 U.S. 622-1980

HELD:   a  municipality has no immunity from liability under sec. 1983 (42 U.S.C.) flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability.  Pp. 635-658.

(a)   By its terms, sec. 1983 “creates a species of tort liability that on its face admits of no immunities.”  Imbler v Pachtman, 424 U.S. 409, 417.  Its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted.  Rather, the statute imposes liability upon “every person” (held in Monell v N.Y.C. Dept of Soc. Serv., 436 U.S. 658, to encompass municipal corporations) who under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States…. To the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”  And this expansive sweep of sec. 1983’s language is confirmed by legislative history.  Pp. 635-636.

          In defining the differences between the corporate enfranchised person and the non-enfranchised private man, I refer you to the celebrated case of Hale v Henkel, 201 U.S. 43 of which the following is an excerpt:

   “…. we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and papers for an examination at the suit of the State.  The individual may stand upon his constitutional rights as a citizen.  He is entitled to carry on his private business in his own way.  His power to contract is unlimited.  He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him.  He owes no duty to the State, since he receives nothing therefrom, beyond the protection of his life and property.  His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.  Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of the law.  He owes nothing to the public so long as he does not trespass upon their rights.”

 

“When we consider the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.”  Those were the words of the Court in Yick Wo v Hopkins, 118 U.S. 356, p. 370.  This is an old case, but never overturned, which addresses the subject of municipal ordinances (there were no county ordinances in those days, but that doesn’t alter the Court’s opinion).  Here is an excerpt: 

The court holding the opinion that “there may be a case in which an ordinance passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrary, oppressive, or partial, as to raise the presumption that the legislature never intended to confer the power to pass it, and to justify the courts in interfering and setting it aside as a plain abusive of authority.”

 

“But it comments to the unrestrained will of a single public officer the power to notify… (portions concerning the particular ordinance which is the subject of this court case omitted)… But if he [public officer} should not chooses to do this, but only to act in particular cases, there is nothing in the ordinance to guide or control his actions.  It lays down no rules by which its impartial execution can be secured or partiality and oppression prevented… and, when we remember that this action or n0n-action may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives ease of concealment and difficult to be detected or exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being brought under cover of such power, for that becomes apparent to every one who gives to the subject a moments consideration.  In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.”

 

“…. Whatever may have been the intent of the ordinance as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of the equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the 14^th Amendment of the United States.”

 

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibitions of the Constitution.”

 

“This principle of interpretation has been sanctioned by this Court in Henderson v Mayor of N.Y., 92 U.S. 259; Chy Lung v Freeman, 92 U.S. 275; Ex parte Virginia, 100 U.S. 339; Neal v Delaware, 103 U.S. 370; and Soon Hing v Crowley, 113 U.S. 703.”

Yick Wo v Hopking, supra, p. 372-4.

 

STATE CONSTITUTION OF IDAHO

Article 12,   §  2

Local Police Regulations Authorized

The state constitution is NOT a grant of power, but a limitation of the state/agency/agents power (L.S.C. v Christensen, 95 P. 523; Nat. Mines v IC, P. 202) also, that absent such limitations said power is unlimited.  The very existence of a state constitution, therefore, is an admission, as a matter of law, that said power is LIMITED!  Also, that the state constitution is not self-executing and that the state must operate through agencies and particularly through agents to effect the said limitations least said limitations lie dormant and become meaningless.  (Dawns v Bidwell, 182 U.S. 244 at 279; 1 Kent Com. 232).

   Therefore it must be demanded that agents of government perform properly, not only in exercising the limited power of the state, but especially in observing end enforcing the said limitations.  “It is a fundamental rule of constitutional law that a State Constitution is an instrument of limitation and not of grant, that all powers are retained to the state not expressly withheld, and the decisions in this state are bottomed squarely upon that rule.”  Diefendorf v Gallet, 51 Idaho 619; 10 P. 2d, 303 (1932).

Every state constitution is a limitation of powers of that state and it is the paramount “LAW” of every state.  Wherein local and state administrators only considered such articles as this as being an authority and fail to recognize other articles which place restrictions on them, it must be considered to be a denial of equal protection of the laws as they may apply to a private man.

   The Court, in State v Clark, supra, imposed three restrictions upon the enactment of police regulations:  (1) they are confined to the limits of the governing body, (2) they must not conflict with general law and, (3) they must not be unreasonable or arbitrary.  What is “unreasonable” has been determined by judicial review to be a matter of court decision in each particular case.

I find that the term “arbitrary” is a very strong prohibition upon all government.

      ARBITRARY  Means in an “arbitrary” manner, as fixed or done capriciously or qt pleasure.  Without adequate determining principle; not founded in the nature of things; not done or acting according to reason or judgment, depending on the will alone; absolutely in power; capriciously; tyrannical, despotic; Cornell v Swisher Counter, Tex. Civ. App.; 78 S.W. 2d 1072, 1074.  Without fair, solid, and substantial cause; that is without cause based upon the law, U.S. v Lotempio, D.C.N.Y. 58 F. 2d, 358, 359; not governed by any fixed rules or standards.

Ordinarily “arbitrary” is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and one not founded in nature of things.  Huey v Davis, Tex. Civ. App.  556 S.W. 2d 8a60, 865.

Blacks (5^th Ed.) Law Dict., p 96

LAW ARTIBRARY  Opposed to immutable, a law not founded in the nature of things, but imposed by the mere will of the legislature.  Blacks 5^th Ed.

In this case cited, State v Clark, the Court also referred to State v Musser, 67 Idaho 214, which in turn quoted eight other cases, all of which ruled that under Art. 12. Sec. 2, “counties, cities and towns had FULL POWER in affairs of local government.”  State v Clark did NOT so rule.  I believe that State v Clark was on-point and these other cases were off-point.

It is very easy for a zoning staff member to discourage property owners in their endeavors, simply by delaying them and/or intimidating them.  Even when a property owner gives valid documentation in his own behalf that cannot be refuted by the county, they will totally ignore it and will not answer it; they will continue as though you never presented it in your own defense.  This is, nevertheless, a denial of “due process” at the administrative level.

  In any lawless assault upon the rights of property owners, zoning staff members will point to their ordinances, stating “their interpretation”, showing where YOU CAN’T DO THIS OR THAT under misdemeanor penalty of as much as $300.00 per day.  This may be construed as “extortion” except that extortion laws in Idaho, along with both malfeasance and misfeasance of office, have been repealed.  The staff member may even point to ordinance 3.13 wherein it defines the term “shall” as meaning mandatory.  That is correct, it does.  However, it cannot be held as applicable to a private  man.  The high court has ruled that such terms as “shall” and “must” may be a violation of constitutional rights under various circumstances and therefore:

“Words like may, must, shall, etc. are constantly used in statutes without intending that they be taken literally.”  Fields v U.S. 27 App. D.C. 433.

Where these terms are used in application towards governmental agencies and agents, they mean exactly what they say, because   THEY are MEMBERS of the corporation.

  In any contested issue the property owner has an absolute right to be heard in his own defense.  This is called “due process” and is a vital part of all law and administrative procedures.  The state legislature provided for a hearing process under 67-6519 in addressing the “permit process” and the courts will recognize this as a proper enactment and application of due process.

  The “hearing process” as granted by the county does not afford a “proper” opportunity to be heard.  Yes, a person may get to go before the hearing commission in a public meeting…  BUT!  I contend that he cannot be successful if the staff has decided against him.

I see this as a serious problem, because if all law from the 14^th Amendment right down to local ordinances provide for an opportunity to be heard as part of the “due process” of law and equal protection of the law, and ordinances, in raising revenues, make the laws applicable only upon payment of a set fee (set by the county), then invalidate and overrule the due process clause, because it is made contingent on financial responsibility.

What if one is indigent and such a fee would work a hardship?  Is he to be denied his lawful rights?  Is he to be discriminated against?  Possibly if this particular “fee” was abolished the staff wouldn’t constantly be forcing property owners and others, into this hearing p5rocess so readily.  NOTE:  The commission hearing examiners are prohibited by 67-6520 from hearing any issue except subdivision and variance permits and district boundary changes.  If the County has the authority to raise revenue and set the amount of various fees, and make the due process of law applicable only upon payment of said fees, then it is also conceivable that they will continue to raise those fees, as inflation rises, until all forms of due process are made financially prohibitive and finally abolished completely in Idaho.

“But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that the famous language of the Massachusetts Bill of Rights, the government of the Commonwealth may be a government of laws and not of men.  For the very idea that one may  be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

Yick Wo v Hopkins, supra., p. 370.

 

In the classic case of Mugler v Kansas, 123 U.S. 623 (1887) which addresses the differences between taking of property without compensation and depriving a person of his property without due process, it was determined:

“Undoubtedly the State, when providing, by legislation, for the protection of the public health, the public morals, or the public safety, is subject to paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the general government.”

              Henderson v Mayor of N.Y., 92 U.S. 259

              Railroad Co. v Husen, 95 U.S. 465

              New Orleans Gas Co. v Louisiana Light Co. 115 U.S. 650

              Walling v Michigan, 116 U.S. 446

              Yick Wo v Hopkins, 118 U.S> 356

              Morgan’s Steamship Co. v Louisiana Bd. of Health 118 U.S. 455

 

That there is a limit to the exercise of the police power in invading business and property in any given case, and that that limit is found in what is necessary and reasonable for guarding against the evil which injures or threatens the public welfare, and that the legislature cannot, under the guise or pretext of a police regulation, go beyond that limit, and strike down innocent occupations and invade private property, the destruction and invasion of which are not reasonable necessary to accomplish the needed relief or the needed reform, are propositions sustained by abundant authority.

There is a great difference between “taking property” without compensation, and  “depriving a person of his property without due process of law”, in many points of view there can be no doubt that “taking a man’s property” is “depriving him of it”.   To justify the State in interposing it s authority in behalf of the public, the court in Lawton v Steel, 152 U.S. 133, ruled:

“It must appear, first that the interests of the public generally, as distinguished  from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.  The legislature may not, under the guise of protecting the public interests, arbitrarily  interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations.  In other words its determination as to what is a proper exercise of its police  powers is not final or conclusive, but is subject to the supervision of the courts.  It is true that the police power of the State is least limitable of its powers, but even it may not transcend the prohibitions of the Constitution of the United States.”  Shelvin-Carpenter Co. v Minn., 218 U.S.,p. 70. 

 

While an ordinance is, in effect, a law of the state, where applicable and within the jurisdiction of the governing board, such ordinance, or regulations, are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the law-making power; and so long as the regulation (ordinance) in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, it cannot be judicially declared that there is a deprivation of property without due process of law, or denial of equal protection of the laws, within the meaning of the 14^th Amendment.

Now let’s look at the subject of “taking” of property.  Eminent Domain proceedings, pursuant to Art. 1, Sec. 14 of the Idaho State Constitution, proclaims: 

Private property may be taken for public use, but not until after a just compensation, to be ascertained in a manner prescribed by law, shall

be paid therefore.

 

In other words, an evaluation (fair market value) must be made of the damage which will accrue to the owner of the property taken, and compensation paid before proceeding with condemnation.  This constitutes a legal “taking of private property for public use with due process and just compensation”.

To constitute “taking” under this amendment (5^th), it is not necessary that property be absolutely taken in the narrow sense of that word to come within the provisions of constitutional provisions, and it is sufficient if action by government involves direct interference with disturbance of property rights.  R.J. Widen Co. v U.S., (1966) 357 F.2d 988, 174 Ct. Cl. 1020.

 

Governmental actions short of acquisition of title or occupancy may amount to a “taking” if its effects are so complete as to deprive the owner of all or most of his interests in subject matter.  So. Counties Gas Co. of Cal. V U.S. (1958) 157 F. Supp. 934, 141 Ct. Cl. 28 certiorari denied, 79 S. Ct. 23; 358 U.S. 815, 3L.Ed. 2158.

 

5  U.S.C.   -   14^th Amendment, Sec. 1

 

A law imposing restrictions upon the use of property must have some reasonable relation to the promotion of public safety, public health, public morals, general welfare, or prosperity of public,  and if it has no such relation it constitutes an arbitrary exertion of governmental powers and violates this clause (5^th Amend).  Vandervort v Sisters of Mercy of Cincinnati (1952) 117 N.E. 2d 51; 97 Ohio App. 153.

 

The provision of the organic law that no person shall be deprived of life, liberty or property without due process of law nor denied the equal protection of the laws are not intended to hamper the states in the discretionary exercise of any of their appropriate sovereign governmental powers unless substantial private rights are arbitrarily invaded by illegal or palpably unjust, hostile and oppressive exactions, burdens, discriminations or deprivations.  State ex rel.  Hosack v Yocum, 1939, 186 So. 448, 136 Fla. 246, 121 A.L.R. 270, See also, State v. Quigg, Fla. 1927, 114 So. 859.

 

A statute or ordinance to be a valid exercise of the police power must not be arbitrary or unreasonable or unduly oppressive, since the Legislature may not under guise of protecting public interests arbitrarily interfere with fundamental rights of citizens guaranteed by Constitution. People, on complaint of Mullaly, v Banks 1938, 6 N.Y.C. 2d 41, 168 Misc. 515.

 

Administrative agent’s exercise of police power affecting personal or property rights is subject to judicial superintendency if such exercise be confiscatory and violative of property rights, and such exercise, if it constitutes an arbitrary, discriminatory, or unreasonable interference with such rights is void as being in violation of due process required by this clause. (5^th Amend.)  Garden State Farms v Armstrong, 1954, 105 A.2d 884; 31 J.J. Super. 61.

 

Zoning ordinance which limits and restricts use and enjoyment of property in matters having no real and substantial relation to peace, good order, safety, health, morals, comfort, or general welfare, though authorized by statute, is prohibited by constitutional safeguards as to deprivation as fully as if title were proposed to be taken.  In Re: Ceresini, 1936, 189 A. 443; 8 W.W. Harr. 134.

 

Statute or ordinance which confers power on some property owners to control property rights of others and which provide no standard by which such power is to be exercised is invalid.  State ex rel. Foster v City of Minneapolis, 1959, 97 N.W. 2d 273; 255 Minn. 249.

Unless general welfare is served by change of existing zoning ordinances, property owners should be held secure in their rights of use in accordance with classification at time of acquisition and holding.  Id.

 

            Also, please consider further….

 

A partial taking is compensable.  Tee-Hit-Ton Indians v U.S. (1955); 75 S. Ct. 313, 348; U.S. 965.

 

The Private land owner is entitled to damages accruing to property not taken by reason of severance and the construction of the improvement.  13 Judicial District, 91 Idaho 237; 419 P. 2d 679 (1966).

 

Any arbitrary action by local government which is ultra vires or where the property owner has submitted proper documentation of his claim and has proven by facts of law, and has challenged the opinion of the county administrator and where, particularly, no counter argument, verified by rationale, point and authority has been presented, which has resulted in a deprivation of property must be considered a “taking” in every sense of the word pursuant to established and accepted court decisions.

            The number of cases verifying the rights of the property owner under the police power of the state are virtually unlimited, both in U.S. Courts and in our own State Courts.  The problems that property owners encounter with the local administrative personnel may best be summed up as follows:

Though property may be regulated to a certain extent under the police power, if the regulation goes too far it will be recognized as a “taking” for which compensation must be paid.  Casey v Stevant, D.C. Pa. 1958, 160 F. Supp. 404, (reversed on other grounds); 79 S. Ct. 1034; 360 U.S. 219.

 

And also….

 

When absolute rights of property have been acquired and vested by authority of law, no subsequent legislation can divest such rights.  Fletcher v Peck, 6 Cranch 87.  Carondelet Canal & Nav. Co. v Louisiana, 233 U.S. 362. 

 

JURISDICTION

Does the county have the right to tell you what to do, and do you have the right as a “stranger or non-assenting member” to be free from corporate regulation (by-laws)?  Providing, of course, that your activities and endeavors are not detrimental to the health, safety, morals, or general welfare of the public. 

Once jurisdiction is challenged it must be proven. 

         Hagers v Lavine, 415 U.S. 533, note 3.

No sanctions can be imposed absent proof of jurisdiction. 

         Santdard v Olsen, 74 S. Ct. 768.

 

Where jurisdiction is an issue of entirety the mere imposition of jurisdiction is an assailable order in itself, and must be pleased at the administrative level.  Jurisdiction, once challenged, cannot be assumed and must be decided.

         Main v Thiboutot, 100 S. Ct. 2502.

 

The law provides that where “jurisdiction” is squarely challenged all administrative and judicial enforcement of a supposed law must come to an end in the nature of abatement and must be proven to exist -–by production and pleading of jurisdictional facts – on the administrative record (5 U.S.C., 101-559, 701-705 govern the issue).  The law provides that absent such proof of jurisdiction there is no subject matter to enforce.  This principle is well set forth (above) in the dissenting opinion in Main v Thiboutot, supra (1980).

When questions of jurisdiction have been passed on or in prior decisions sub silentio this court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.  Hagens v Lavine, supra, note 5, see also Morrell v Dept. of Social Service of City of N.Y., 436 U.S. 663; U.S. v More, 3 Cr. 159, 172.

 

Equity can have jurisdiction to enforce law (public or private) whether obtained privately in contract or publicly in a court of law… only if that law remains properly within the narrow confines set out by (a) due process – notice and opportunity to be heard, (b) the U.S. Constitution, expressed and implied, (c) the substantive common law, (d) law merchant, (e) due process of law making (f) substantive due process, (g) state constitution and (h) state statutes as interpreted by the state supreme court (state common law governs the federal environment, 28 U.S.C. 1652, 2072, par 2, Erie RR v Tompkins), among others.  It was further held:

There will no longer be judicial protection for your mere good faith assertion of jurisdiction, and that such assertions of jurisdiction are abolished. 

Owen v City of Independence, Mo. (1980) – HELD

445 U.S. 622, 100 S. Ct. 1398.

 

Every property owner should by now understand that ALL ZONING IS CONTRACTURAL.  Whenever you ask permission you will be told to “till out an application, pay us our fee, and be sure to sign it!”  What do you do?  You sign a contract; you acquiesce into the corporate jurisdiction; you request to be regulated and restricted, as a proper corporate member, by the corporate by-laws.

   The private citizen may not be compelled, particularly under threat and duress, to enter into a contract wherein he waives his rights.  Should the property owner declare that he will not sign the application permit and be told that; “if you don’t sign, we cannot answer your questions, issue you a permit… etc.”  This would be “threat and duress” and I would recommend that in such a situation the property owner sign said document, but add the words: “signed under threat, duress, and implied coercion.”

Any act not performed voluntarily is not your act.  Signing in this manner takes away the voluntary aspect of the signing of said contract; thus there is no contract, nor is jurisdiction granted.  The agent has his “signature”, though worthless, and the property owner must have his permit.  Everybody should be happy.

 

CONCLUSION

 

 

— County  Building Department has represented Ordinance #221A of — County, Idaho (Building Code Ordinance) as law, and as such, has enforced it by the use of police powers that they claim have been granted them by the Uniform Building Code (UBC) and codes A-I, § 2.0.

 

The Uniform Building Code is an international set of minimal building standards that has been adopted by —i County for the protection of the health, safety, and general welfare of the people of the state of Idaho. 

Ordinances ARE NOT LAWS of the state of Idaho.  Such ordinances are by-laws for the corporate agent of the principle, and as such, they are void as against strangers and non-assenting members. — County Building Department has used non-statutory police powers in an attempt to force me, a private man, into contractual arrangements with the county   The use of such police power absent a proof of endangerment to the general welfare of the people of the state of Idaho, violates my constitutional rights that are protected by both federal and state Constitutions.  The arbitrary and capricious use of such power is nothing more nor less than an abuse of discretion to extort unreasonable fees from me by the use of force, and ignores completely the statutory purposes and restrictions set forth by legislative law.

            The local Planning Act, Title 67, Chapter 65, state of Idaho, clearly defines the purposes of the code, and does not or cannot authorize the county as an agent, to pass ordinances that exceed the statutory limits therein.  The Planning Act expressly prohibits the use of regulations and restrictions that are arbitrary and confiscatory.

             The STATE has not disclosed, at any time, a section of the Public Laws of Idaho wherein the Legislature has authorized public inspections of private dwellings owned by the people on the Land of Idaho. In the event that no such public law exists, the STATE is not operating under color of law. The STATE must therefore be operating under fiction of law for profit.

             The issues raised here are whether the conduct of the Defendant, allegedly building his own home on private property, is a protected liberty and does the STATE, as a municipal corporation, have the authority to convert the inherent liberty of building a home on private property into a privilege so that the STATE: can demand a performance contract; can enter without a warrant; can enforce a public inspection of a private dwelling; can demand that said privatehome be constructed to the minimum commercial requirements of the Uniform Building Code, and demand a fee for asserting the liberty. Defendant asserts that the STATE’s actions here raises issues under the Constitution, Laws and treaties of the united States of America.

 

Respectfully submitted this _____ day of June, 2001.

 

 

 

 

CERTIFICATE OF SERVICE

 

         I hereby certify that on the ____ day of June, 2001, a true and correct copy of the foregoing APPELLANT’S BRIEF was delivered by the method indicated below to the following address;

 

___ U.S. Mail                               ___ FAX

___ Hand Delivered

 

— County Prosecuting Attorney’s Office

—————-

——–, Idaho 838–

                                                                             ___________________________

                                                                                       ———————-

 

 

Arizona Public records and open meeting law

A link to the Arizona state Ombudsmans office:

http://www.azleg.gov/ombudsman/default.

————————————————————————————————–

Here is a link to AZ CENTRAL news about public records you might find interesting.

http://www.azcentral.com/specials/special11/articles/0316sunshine-main.html?&wired

————————————————————————————————–

And a recent item of interest from our friends At Cochise County Individual & Property Rights Association:

An important Arizona Supreme Court opinion definitively expands the
scope of our Public Records Law.  The complete opinion, in pdf form, is
online at
    http://littlebigdog.net/MetadataRecordsRequest.pdf
Here’s a condensation.

SUPREME COURT OF ARIZONA, 220 Ariz. 472, 207 P.3d 725 (App. 2009)

David Lake, Plaintiff/Appellant
    v.
City Of Phoenix, and Frank Fairbanks, Mario Paniagua and Jack Harris, in
their offficial capacities, Defendants/Appellees

The question was not whether public documents must be produced; the
question was whether an electronic “public record” includes not only the
information normally visible upon printing the document on paper, but
also any embedded “metadata” which would not normally be printed.

The answer is Yes:  if a public entity maintains a public record in an
electronic format, then the electronic version, including any embedded
metadata, is subject to disclosure under our public records laws.

To understand that holding, three terms — “record,” “public record” and
“metadata” — must be defined.

“Record” is defined by ARS 41-1350 as “all books, papers, maps,
photographs or other documentary materials, regardless of physical form
or characteristics … made or received by any governmental agency in
pursuance of law or in connection with the transaction of public
business and preserved or appropriate for preservation by the agency …
as evidence of the organization, functions, policies, decisions,
procedures,  operations or other activities of the government, or
because of the informational and historical value of data contained
therein.”

“Public record” is defined by a case from 1952 (Mathews v. Pyle, 75
Ariz. 76, 251 P.2d 893).  Mathews defines a public record as:  (1) a
record “made by a public officer in pursuance of a duty, the immediate
purpose of which is to disseminate information to the public, or to
serve as a memorial of official transactions for public reference”; (2)
a record that the law requires to be kept, or “necessary to be kept in
the discharge of a duty imposed by law or directed by law to serve as a
memorial and evidence of something written, said or done”; or (3) “a
written record of transactions of a public officer in his office, which
is a convenient and appropriate method of discharging his duties, and is
kept by him as such,” whether required by law or not.

“Metadata” is “information describing the history, tracking, or
management of an electronic document.”  Examples include “file
designation, create and edit dates, authorship, comments, and edit
history.”  This is all “inherent” or “application” metadata, which is
embedded in the file it describes and moves with the file when it is
moved or copied.  This case does not address “external” or “system”
metadata, which is not part of a document.

The metadata in this case was, for certain computer files, “the TRUE
creation date, the access date, the access dates for each time it was
accessed, including who accessed the file as well as print dates etc.”

This case arose when David Lake, a Phoenix police officer, filed a
complaint and lawsuit alleging employment discrimination by the City of
Phoenix.  He also submitted a public records request to the City. 
Arizona law provides that “[p]ublic records and other matters in the
custody of any officer shall be open to inspection by any person at all
times during office hours.”  ARS 39-121.

Lake requested notes kept by his supervisor documenting his work
performance.  After reviewing paper copies of the notes, Lake suspected
that they had been backdated when prepared on a computer.  He then
requested “meta data” contained inside [the] file,” including “the TRUE
creation date, the access date, the access dates for each time it was
accessed, including who accessed the file as well as print dates etc.” 
The City denied the request, contending that metadata is not a public
record.

Pursuant to ARS 39-121.02, Lake filed a “public records” case in
superior court.  He alleged that the City was “intentionally and
purposely delaying the production of certain public records.”  The
superior court denied relief.  Lake appealed.  The court of appeals
upheld the superior court’s decision.

The court of appeals found that Arizona statutes distinguish “metadata”
from “public records,” so that a public records request does not require
production of metadata.  One appeals judge dissented, arguing that
metadata is not an “electronic orphan,” but is instead part of the
electronic document, so that “[w]hen [an] electronically created
document is a public record, then so too is its metadata.”  The Supreme
Court agrees with the dissent.

Arizona’s Public Records Law serves to “open government activity to
public scrutiny” so that “the public may monitor the performance of
government officials and their employees.”  Consistent with that goal,
Arizona defines “public records” broadly, and creates a presumption
requiring their disclosure.  However, only documents with a “substantial
nexus” to government activities are public records; and even if a
document is a public record, it is not subject to disclosure if privacy,
confidentiality, or the best interests of the state outweigh the policy
in favor of disclosure.

Although Arizona statutes do not define “public record,” ARS
39-121.01(B) requires public entities and officers to “maintain all
records, including records as defined in [ARS] 41-1350 [see the first
page of this condensation], reasonably necessary or appropriate to
maintain an accurate knowledge of their official activities and of any
of their activities which are supported by monies from the state or any
political subdivision of the state.”  The Supreme Court held in 1984
that ARS 39-121.01(B) supplements the Mathews definition of public records.

The court of appeals said that while ARS 39-121.01(B) broadly defines
“records,” the legislature has not defined which “public records” are
subject to disclosure under ARS 39-121.01(D)(1).  The appeals court
suggested that this distinction supports interpreting “public records”
more narrowly than “records.”  However, the Supreme Court rejected that
distinction, and found that all records required to be made and
maintained by 39-121.01(B) and preserved by (C) are to be available for
inspection under 39-121 and copying under 39-121.01(D), subject to
discretion as to privacy, confidentiality, or the best interest of the
state.

The court of appeals erred by parsing the electronic version of Conrad’s
notes and focusing separately on the metadata in the document.  The
metadata in an electronic document is part of the document; it does not
stand on its own; it is as much a part of the document as the words on
the page.

Arizona’s public records law requires a review of a copy of the “real
record.”  It would be illogical, and contrary to the policy of openness,
to let public entities withhold information embedded in an electronic
document, such as the date of creation, which they would be required to
produce if it were written on paper.

The Supreme Court holds that when a public entity maintains a public
record in an electronic format, the electronic version of the record,
including any embedded metadata, is subject to disclosure under our
public records law.

The Court notes that this decision is unlikely to result in an
“administrative nightmare” as the City argued.  A public entity is not
required to spend “countless hours” identifying metadata; instead, it
can satisfy a public records request merely by providing the requestor
with a copy of the record in its native format.

A law journal article about the case, before it got to the Arizona
Supreme Court, is at
    http://www.law.arizona.edu/Journals/ALR/ALR2009/VOL512/Cockerham.pdf

The implication for citizens’ public records requests in Cochise County
is clear:  when you request e-documents, add a specification that you
also are requesting all metadata about the documents.

______________________________________________________________________

Apache County Employees

  Why is it that the Apache County Human Resources manual does not say when new amendments were made? Or is it just the online copy that does not? Were all the recent changes to the policy approved by the board? I think not. Could there have been mistakes in the manual? And are there still? YES there is and a couple I have found just recently. Do they effect your rights? I think they could to some extent.

  Does Apache County have a employee merit system? According to the Apache County  they do not. But I think he may be wrong. What do you think?

Does the Apache County Human Resource Manual apply equally to all employees??

Apache County Initiative,Referendum and Recall information

http://www.azsos.gov/election/IRR/

For those interested in taking back our county and our rights here is some helpful information.

Recent Uath opinion on nonconforming uses

http://propertyrights.utah.gov/opinions/68_AO_Abstract.pdf

OFFICE OF THE PROPERTY RIGHTS OMBUDSMAN

Advisory Opinion #68

May 5, 2009

T

OPICS:

􀂃

 

(#14) Nonconforming uses and noncomplying structures

􀂃

(#15) Other Topics (Interpretation of Ordinances)

Question

Did a city apply the proper standards to determine that a duplex was not entitled to nonconforming use status?

Background

Property owners claimed that their building was eligible for nonconforming use status as a duplex, and produced affidavits from former owners and tenants, along with other documentary evidence, showing that the building was leased as two units prior to the zoning change which prohibited duplexes. The City maintained that the second apartment was not “legally established” because it did not comply with building codes, including failure to obtain a building permit when the building was converted from a single-family residence. Since the second apartment did not comply with the City’s codes, the City’s position was that it could not “legally” exist.

Analysis

Under Utah law, a use is eligible for nonconforming status if it was legally established prior to being prohibited by a change in a land use ordinance. If a use was initiated when it was permitted under local zoning ordinances, the use is “legally established,” and is eligible for nonconforming use status if the zoning ordinance has changed. Compliance with building codes and other ordinances unrelated to land use regulation is not a factor in determining whether the use was legally established. Local ordinances adding a condition that a use be fully compliant with local ordinances are therefore invalid.

The threshold requirements for nonconforming use status are established in the Utah Code. A property owner must show that the use was legally established prior to a zoning change. Local governments may not add to that requirement. Local ordinances which increase the burden of proof on a property owner, or add other conditions for eligibility are invalid.

Contact ACIPRA

email address: acipra@frontier.com

 

I thought I was reading about Apache County Public officials

When reading this I could have sworn it was a story about Apache County with just the names changed to protect the people from knowing this was happening right here today. And yes it is happening in APACHE COUNTY though this story is not about Apache County it is what is happening to the property owners here.

So take a minute to read the story on the link below.

http://www.freedomadvocates.org/articles/illegitimate_government/the_gestapo_of_the_west_%E2%80%93_8_years_later_20080610307/

Apache County recorded notices of violation are they legal

Here is a question. If the Apache County Attorneys either past or present knew that Apache County Officials were violating property owners due process did those Attorney follow these rules? And under U.S.C. Title 18 sections 241 and 242 the actions of the Apache County Officials could be criminal.

 

 

http://www.law.cornell.edu/ethics/az/narr/AZ_NARR_1_02.HTM#1.2:800

 

1.2:600   Prohibited Assistance

• Primary Arizona References: AZ-ER 1.2 and accompanying Comment
• Background References: ABA Model Rule 1.2(d), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3

AZ-ER 1.2(d) provides that a lawyer shall not assist a client, or advise a client, to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may, however, discuss the legal consequences of a course of action, and may counsel a client to determine the validity, scope or meaning of a law. As the Comment to this aspect of the Rule explains: 

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 

When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See ER 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. In extreme cases, a lawyer may be required to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. See ER 4.1. 

Comment, AZ-ER 1.2, ‡‡ 10, 11. 

1.2:610      Counseling Illegal Conduct

In Arizona Ethics Opinion No. 2001-04, the Committee considered the obligations of a lawyer in a civil case who receives from a client documents containing privileged or otherwise confidential information which the client had obtained from an employee of the adverse party. On that issue, the Committee concluded that the lawyer must refrain from examining the materials or making use of them, notify (with the client’s consent) opposing counsel of the receipt of them, and either abide by opposing counsel’s instructions as to the disposition of them or seek a ruling from the court. If the client refuses to consent to notifying opposing counsel, the lawyer may not do so, but must still refrain from examining or using the materials. If the lawyer does so, withdrawal is not required. The Committee went on to observe that, if there is evidence that the client has some complicity in obtaining the materials, and intends to continue to do so, the lawyer must counsel the client about the legal consequences of that course of conduct and instruct the client to discontinue. If the client refuses to do so, then the lawyer may, but is not required to, advise the adverse party or the authorities. The lawyer must also refuse to accept any additional documents of that nature obtained by the client. 

In Arizona Ethics Opinion No. 87-05, the Committee on the Rules of Professional Conduct (“the CommitteeÓ) analyzed whether an attorney could ethically advise a client arrested for driving under the influence of alcohol to refuse a blood, breath or urine test. The Committee determined that a lawyer who advises a client to refuse one or all of those tests will not violate the Arizona Rules of Professional Conduct, because the client has a statutory right to do so. The Committee cautioned, however, that the most prudent course of action was for the lawyer to advise the client of the legal consequences of a refusal to submit to the tests, and to allow the client to make the decision whether or not to do so. 

In Arizona Ethics Opinion No. 95-02, the Committee considered whether a criminal defense attorney was required to provide information concerning the client’s intentions to appear at trial. The Committee concluded that, if the attorney has actual knowledge that the client will not appear, and the client’s failure to appear will be willful, then the attorney must so advise the court. 

1.2:620      Assisting Client Fraud

In Arizona Ethics Opinion No. 88-08, the Committee considered an inquiry from a lawyer whose client in a marital dissolution matter had inadvertently but surreptitiously tape recorded a privileged conversation between her spouse and the spouse’s lawyer, in which the spouse revealed the existence of additional funds which would be subject to division in the divorce proceedings, and the lawyer counseled how that could be avoided. The Committee concluded that the attorney could seek to preserve the money, but could not use the tape recording as evidence that the money existed. If the lawyer disclosed the existence of the tape recording or used its contents, then the lawyer would be ratifying or possibly assisting the client’s illegal conduct, and might also be exposing the client to criminal liability. The Committee recognized that the client might expect the lawyer to use the recording in the litigation, but reiterated that the lawyer could not properly do so, and advised the lawyer to explain to the client the ethical limitations on the lawyer’s ability to use the tape. 

In Arizona Ethics Opinion No. 92-02, the Committee considered whether a lawyer had an ethical obligation to reveal the client’s correct name to the court. The lawyer had been retained by “John DoeÓ for representation in a criminal matter. While out on bail, “John DoeÓ had been arrested on other charges, and had given his name as “John SmithÓ to the arresting officers. The inquiring lawyer was subsequently retained by the defendant for representation on these new charges and, during the course of that engagement, learned that the defendant’s true legal name was “John Smith.Ó The Committee concluded that the attorney must advise the client that the attorney could not use the client’s false name with the court, because to do so would be assisting the client in committing a fraud upon the court. If the client refused to correct the false name given in one of the proceedings, then the lawyer was obligated to seek to withdraw, but could not disclose the client’s use of a false name. If the request to withdraw was denied, then the attorney was obligated to proceed with the representation, but without using the false name for the client. See also In re American Continental Corporation/Lincoln Savings and Loan Securities Litigation, 794 F.Supp. 1424, 1452 (D.Ariz. 1992) (attorneys must advise clients in a clear and direct manner when the client violated the law, and if the client continues the objectionable activity, the attorney must withdraw). 

The Court of Appeals has recognized that an attorney who assists a client in perpetrating a fraudulent conveyance may be liable for damages suffered by the client’s defrauded creditors. In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), affirmed in part and vacated in part on other grounds 151 Ariz. 403, 728 P.2d 273 (1986), the Court held that a judgment creditor can seek monetary damages from a lawyer who assisted clients in perpetrating a fraud on that creditor. In order to prevail, the judgment creditor needed to prove (1) that the attorney committed actual fraud, and not merely constructive fraud, (2) the remedies under the Uniform Fraudulent Conveyance Act were not adequate, and (3) damages would be limited to the lesser of the amount of the creditor’s judgment, or the value of the property at the time of the fraudulent transfer. Id., 151 Ariz. at 404, 728 P.2d at 273. 

 

 

1.2:830      Representing an Entity [see also 1.13:200]

AZ-ER 1.13(a) provides that “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.Ó AZ-ER 1.13(b) further states that, if a lawyer knows that an officer, employee, or other person affiliated with the organization has either acted, or intends to act, in a manner related to the representation that violates a law or other legal obligation of the organization, and such action is likely to cause substantial injury to the organization, the lawyer must act in the best interest of the organization. Actions the lawyer may take include urging reconsideration of the matter, advising that a separate legal opinion be obtained, and/or referring the matter to the organization’s highest authority. If the highest authority in the organization insists upon conduct that will violate the law and is likely to result in injury to the organization, AZ-ER 1.13(c) permits the lawyer to withdraw from the representation. 

Similarly, when it becomes apparent that the organization’s interests have become adverse to those of a director, officer, shareholder or other constituent of the organization, the lawyer representing the organization shall explain the identity of the lawyer’s client. AZ-ER 1.13(d). A lawyer may, however, represent one or more officers, directors, employees, shareholders or other constituents of the organization, so long as the representation does not violate the conflict of interest rules of AZ-ER 1.7. AZ-ER 1.13(e). _____________________________________________________________________________________________________

_____________________________________________________________________________________________________

 

Ok I found this and it makes me want to get a case together People of Apache County v. County of Apache I think we could do something for the good of all the people in this county if we did.

August 14, 2009 – Update:  Federal Judge sets pretrial conference for March 26, 2010, and trial for April 19, 2010.  Federal Judge stated he has never seen a case like this before and it is “the height of arbitrary and capricious decision making”.  (The longer this case takes the higher the damages- the Padgetts in Monte Sereno received $3.2 million in punitive damages and didn’t even know about concealment in their area of BAFCAB.)  The longer this case takes the more it will impact the upcoming 2010 elections for Neil Coonerty and Tony Campos Supervisor seats as major funding has been secured to publicize the alleged illegal activities of these Supervisors and the cross department collusion.
Another big lawsuit will be filed.  It is a new impact class action suit on behalf of the People of Santa Cruz County v. County of Santa Cruz et al. The impact class action suit will be addressing the same fraud, extortion and corruption scheme issues and will be landing right in the middle of the 2010 election campaign period to injunct the Supervisors to recognize and follow higher laws. All Supervisors will be named – Ellen Pirie, Neil Coonerty, Tony Campos’, Mark Stone, John Leopold and former Jan Beautz, along with Tom Burns and staff.  In addition, another lawsuit is in the works to invoke Government Code 1099 and unseat the Board of Supervisors from any other commission and committee.

_______________________________________________________________________________________________________

_______________________________________________________________________________________________________

Did Apache County follow these statutes when enforcing the violations? I do not think so as I was never granted any hearing nor was any other property owner found guilty.

 12-901. Definitions

In this article, unless the context otherwise requires:

1. “Administrative agency” or “agency” means every agency, board, commission, department or officer authorized by law to exercise rule-making powers or to adjudicate contested cases, whether created by constitutional provision or legislative enactment. Except as provided in section 33-1905, administrative agency or agency does not include an agency in the judicial or legislative departments of the state government, any political subdivision or municipal corporation or any agency of a political subdivision or municipal corporation.

2. “Administrative decision” or “decision” means any decision, order or determination of an administrative agency that is rendered in a case, that affects the legal rights, duties or privileges of persons and that terminates the proceeding before the administrative agency. In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review, and an application for a rehearing or review is made, no administrative decision of such agency is final as to the party applying for the rehearing or review until the rehearing or review is denied or the decision on rehearing or review is rendered. Administrative decision or decision does not include either:

(a) Rules, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it unless the rule, standard or statement of policy is involved in a proceeding before the agency and its applicability or validity is in issue in the proceeding.

(b) Rules concerning the internal management of the agency and not affecting private rights or interests.

 

 

12-902. Scope of article

A. This article applies to and governs:

1. Every action to review judicially a final decision of an administrative agency except public welfare decisions pursuant to title 46, or if the act creating or conferring power on an agency or a separate act provides for judicial review of the agency decisions and prescribes a definite procedure for the review.

2. An action to review the decision at an administrative hearing held pursuant to section 33-1905.

B. Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of the decision. If under the terms of the law governing procedure before an agency an administrative decision becomes final because of failure to file any document in the nature of an objection, protest, petition for hearing or application for administrative review within the time allowed by the law, the decision is not subject to judicial review under the provisions of this article except for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.

12-904. Commencement of action; transmission of record

A. An action to review a final administrative decision shall be commenced by filing a complaint within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected. The method of service of the decision shall be as provided by law governing procedure before the administrative agency, or by a rule of the agency made pursuant to law, but if no method is provided a decision shall be deemed to have been served when personally delivered or mailed by certified mail to the party affected at the party’s last known residence or place of business. Service is complete on personal service or five days after the date that the final administrative decision is mailed to the party’s last known address.

B. Within ten days after filing a complaint pursuant to this article, the party seeking judicial review shall file a notice of the action with the office of administrative hearings or the agency that conducted the hearing, and the office of administrative hearings or the agency that conducted the hearing shall transmit the record to the superior court. The record shall consist of the following:

1. The original agency action from which review is sought.

2. Any motions, memoranda or other documents submitted by the parties to the appeal.

3. Any exhibits admitted as evidence at the administrative hearing.

4. The decision by the administrative law judge and any revisions or modifications to the decision.

5. A copy of the transcript of the administrative hearing, if the party seeking judicial review desires a transcript to be included in the record and provides for preparation of the transcript at the party’s own expense. Any other party may have a transcript included in the record by filing a notice with the office of administrative hearings or the agency that conducted the hearing within ten days after receiving notice of the complaint and providing for preparation of the transcript at the party’s own expense.

New find and I think it is a example of the types of things going on here in Apache County:

 http://www.straighttalknews.org/uploads/TonyCampos-BOS.pdf

I found this link. It is about how code violations effect property and insurance. And it is good reading.

http://cmetro.ctic.com/TitleIssues/v5n6.pdf

_________________________________________________________________________________________

All Arizona counties are required to hold a hearing when violating a persons property. It gives the property owners a chance to admit or denie any violation charges. Except that Apache County has twisted the ARS 11-810 and the BOAA into one mess. Which by doing so has denied property owners the intent of ARS 11-810.

Link to Pinal county rules of procedure and some interesting reading:

http://pinalcountyaz.gov/Departments/HearingOffice/Documents/Downloads/Rules.pdf

________________________________________________________________________________________

Update: this taken from the Apache County Attorneys home page

Mission Statement

The mission of the Apache County Attorney’s Office is to protect

all the citizens of Apache County by providing the impartial

administration of Arizona’s laws and provide legal services to each Apache County entity.

But he does not do this. He is and has been helping the Apache County Community Development and building departments cover up the illegal enforcement of the Apache County Zoning Ordinances.

And whats is even worse is that the Apache County Attorney made campaign promises to protect the property owners rights. As he says here. This taken from his own campain web site.

Apache County’s Financial Troubles Are A Serious Issue This Election

Apache County is currently facing a whopping $1 million deficit and a “freeze” has been placed on any new hiring. Why should this matter in your vote for County Attorney?

Sound Legal Advice Will Save the County Money

The County Attorney represents the county in civil legal matters. Civil matters involve a variety of non-criminal legal cases, such as interpreting ordinances, enforcing contracts, negotiating easements and the like.  I have been talking to people whose families have lived here for several generations and people who just moved here several months ago. I’ve listened to many people with low or fixed incomes struggle to understand why the county wants to enact a strict zoning code that may force financial hardship on residents. Others are concerned about eminent domain issues.  As an elected official, the County Attorney has a responsibility to make sure that any new ordinances or other civil matters are constitutional, are in clear and precise language, and serve the financial and social needs of the County’s citizens.

The bottom line is that if the County Attorney incorrectly advises the county, the wrong advice will ultimately cost the taxpayers a great deal of money.  Bad advice can possibly result in lost revenues and jobs.

And then he said this on his site

Private Land Use and Zoning Issues

Slightly more than 13% of the land in Apache County is privately owned.  The rest is reservation land and public land.  In talking with people throughout our county, I am finding that a significant group of voters are worried about the restrictive zoning ordinance being considered by the Board of Supervisors.  With such a small percentage of private land in our County, land use and zoning is a major consideration facing our property owners.

The Apache County Attorney represents and advises the County’s various governmental branches such as the Board of Supervisors, school and fire districts, departments and agencies.  The County’s justice courts also rely on advice from the County Attorney’s office.  For this reason, it is important that the citizens elect a County Attorney who can provide sound legal counsel for all branches of county government. 

 

Bad advice generally creates lawsuits, appeals and administrative actions that cost the taxpayers thousands — if not hundreds of thousands — of dollars to defend.  For this reason, selecting an intelligent and experienced candidate for County Attorney is an important decision to be made by the voters.  I urge you to review my resume and discover why I am the most qualified candidate.

 So is he really doing as he promised? Or did he just tell us all what we wanted to hear? Is he by not correcting past problems he is very well aware of himself violating our rights? What do you think?

 

Has he done anything to restore the rights already violated? Or has he worked to protect those whom have made those rights violations? At what cost to your rights is he acting to protect those whom have been failing to do their jobs and not working to protect you and me at all.

 

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Are the recorded notices the Apache County Building official has been recording and using as a tool to force unsuspecting property owners into compliance with illegal ordinances and building codes Legal? In my opinion “NO” as the county has failed to follow the Arizona Revised Statutes when adopting the Apache County Zoning Ordinances and Building Codes. But also by defect of the actions taken when sending the notice of violation letter to ALLEGED violators. Those letters fail to include required information as per Article13  as it was recently adopted on Dec.2, 2008 and Published over a year later. So if the county Building official prior to the newest version of Article 13 was never by ordinance granted the power to enforce the codes by what legal authority has he been acting? As nowhere in the Apache County Zoning Ordinance as adopted was the building official granted the power to enforce any zoning ordinances. and as the building official he has no authority to enforce anything except maybe the building codes if they were ever legal. And according to the ARS 11-866 that for the county to be able to enforce the building codes they must set forth in full all the penalties for a violation of the ordinance and/or codes this never happened until this year when the county made a feeble attempt at fixing the mistake. But I think that a challenge could still be made as they have never recorded any of the ordinances. So if anyone has been attacked with a recorded notice of violation we could stand together and make a challenge to it. Plus I am looking into if the first adopted zoning in Apache County was adopted according to the ARS as required and if not it could mean that none of the ordinances are enforceable. Why you may ask well once again in my opinion if the county never legally adopted the first ordinance it would invalidate any following amendments to it as you cannot amend an illegal document. So what do you think? Let me know and lets fight these type of property rights violations and prevent  the county from  creating an illegal cloud on others  property titles like they have ours. And keep in mind that not one property owner has been allowed the right to due process by the Apache County Officials.

I have found this case which is in the Federal courts now. And I will be watching what happens.

  http://www.straighttalknews.org/uploads/MotionandAmendedComplaintElanRev.Oracle.pdf

 

http://www.straighttalknews.org/uploads/Paul_Carrick_Cross_Complaint_Motion_for_Summary_Judgement_v_County_of_Santa_Cruz_for_false_red_tags.pdf

 http://www.straighttalknews.org/uploads/crossdefendantsanswerammended.pdf

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

　

　

　

　

　

　

　

　

　

　

　

　

 

 

 

 

 

 

 

 

 

 

 

 

 

1.2:600   Prohibited Assistance

• Primary Arizona References: AZ-ER 1.2 and accompanying Comment
• Background References: ABA Model Rule 1.2(d), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3

AZ-ER 1.2(d) provides that a lawyer shall not assist a client, or advise a client, to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may, however, discuss the legal consequences of a course of action, and may counsel a client to determine the validity, scope or meaning of a law. As the Comment to this aspect of the Rule explains: 

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 

When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See ER 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. In extreme cases, a lawyer may be required to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. See ER 4.1. 

Comment, AZ-ER 1.2, ‡‡ 10, 11. 

1.2:610      Counseling Illegal Conduct

In Arizona Ethics Opinion No. 2001-04, the Committee considered the obligations of a lawyer in a civil case who receives from a client documents containing privileged or otherwise confidential information which the client had obtained from an employee of the adverse party. On that issue, the Committee concluded that the lawyer must refrain from examining the materials or making use of them, notify (with the client’s consent) opposing counsel of the receipt of them, and either abide by opposing counsel’s instructions as to the disposition of them or seek a ruling from the court. If the client refuses to consent to notifying opposing counsel, the lawyer may not do so, but must still refrain from examining or using the materials. If the lawyer does so, withdrawal is not required. The Committee went on to observe that, if there is evidence that the client has some complicity in obtaining the materials, and intends to continue to do so, the lawyer must counsel the client about the legal consequences of that course of conduct and instruct the client to discontinue. If the client refuses to do so, then the lawyer may, but is not required to, advise the adverse party or the authorities. The lawyer must also refuse to accept any additional documents of that nature obtained by the client. 

In Arizona Ethics Opinion No. 87-05, the Committee on the Rules of Professional Conduct (“the CommitteeÓ) analyzed whether an attorney could ethically advise a client arrested for driving under the influence of alcohol to refuse a blood, breath or urine test. The Committee determined that a lawyer who advises a client to refuse one or all of those tests will not violate the Arizona Rules of Professional Conduct, because the client has a statutory right to do so. The Committee cautioned, however, that the most prudent course of action was for the lawyer to advise the client of the legal consequences of a refusal to submit to the tests, and to allow the client to make the decision whether or not to do so. 

In Arizona Ethics Opinion No. 95-02, the Committee considered whether a criminal defense attorney was required to provide information concerning the client’s intentions to appear at trial. The Committee concluded that, if the attorney has actual knowledge that the client will not appear, and the client’s failure to appear will be willful, then the attorney must so advise the court. 

1.2:620      Assisting Client Fraud

In Arizona Ethics Opinion No. 88-08, the Committee considered an inquiry from a lawyer whose client in a marital dissolution matter had inadvertently but surreptitiously tape recorded a privileged conversation between her spouse and the spouse’s lawyer, in which the spouse revealed the existence of additional funds which would be subject to division in the divorce proceedings, and the lawyer counseled how that could be avoided. The Committee concluded that the attorney could seek to preserve the money, but could not use the tape recording as evidence that the money existed. If the lawyer disclosed the existence of the tape recording or used its contents, then the lawyer would be ratifying or possibly assisting the client’s illegal conduct, and might also be exposing the client to criminal liability. The Committee recognized that the client might expect the lawyer to use the recording in the litigation, but reiterated that the lawyer could not properly do so, and advised the lawyer to explain to the client the ethical limitations on the lawyer’s ability to use the tape. 

In Arizona Ethics Opinion No. 92-02, the Committee considered whether a lawyer had an ethical obligation to reveal the client’s correct name to the court. The lawyer had been retained by “John DoeÓ for representation in a criminal matter. While out on bail, “John DoeÓ had been arrested on other charges, and had given his name as “John SmithÓ to the arresting officers. The inquiring lawyer was subsequently retained by the defendant for representation on these new charges and, during the course of that engagement, learned that the defendant’s true legal name was “John Smith.Ó The Committee concluded that the attorney must advise the client that the attorney could not use the client’s false name with the court, because to do so would be assisting the client in committing a fraud upon the court. If the client refused to correct the false name given in one of the proceedings, then the lawyer was obligated to seek to withdraw, but could not disclose the client’s use of a false name. If the request to withdraw was denied, then the attorney was obligated to proceed with the representation, but without using the false name for the client. See also In re American Continental Corporation/Lincoln Savings and Loan Securities Litigation, 794 F.Supp. 1424, 1452 (D.Ariz. 1992) (attorneys must advise clients in a clear and direct manner when the client violated the law, and if the client continues the objectionable activity, the attorney must withdraw). 

The Court of Appeals has recognized that an attorney who assists a client in perpetrating a fraudulent conveyance may be liable for damages suffered by the client’s defrauded creditors. In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), affirmed in part and vacated in part on other grounds 151 Ariz. 403, 728 P.2d 273 (1986), the Court held that a judgment creditor can seek monetary damages from a lawyer who assisted clients in perpetrating a fraud on that creditor. In order to prevail, the judgment creditor needed to prove (1) that the attorney committed actual fraud, and not merely constructive fraud, (2) the remedies under the Uniform Fraudulent Conveyance Act were not adequate, and (3) damages would be limited to the lesser of the amount of the creditor’s judgment, or the value of the property at the time of the fraudulent transfer. Id., 151 Ariz. at 404, 728 P.2d at 273.

Apache County P&Z Commission Meeting Canceled for October,2009

 

I can now prove that the Apache County P&Z Commission violated the law by failing to hold a meeting in Jan.2009 and Oct. 2009 and it is on this link.

http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/summary/h.hb2145_01-13-10_gov.doc.htm

It seems that the Legialature thinks a meeting is required each month and until this bill is passed they were required each month. Will the Apache County Attorney do anything? I doubt it.

The Apache County P&Z Commission canceled the October 1,2009 meeting. Claiming that nothing was brought before them to require a meeting. Well it is odd since the Arizona Revised Statute that governs the P&Z Commission ARS 11-804 says very clearly that the commission “Shall hold at least one regular meeting each month”. So are the Apache County Commissioners above the laws of the state of Arizona? Were they acting according to the statute when canceling not only the October 1,2009 meeting but also the January,2009 meeting. I have included that statute for you to read. Now the Apache County P&Z Commission did adopt the new rules of procedure to say they could cancel any meeting at their will basicly, but was it legal for them to do so? I think not since it is in direct conflict with the statute. And according to ARS 11-251 section 31, and it says “31. Make and enforce all local, police, sanitary and other regulations not in conflict with general law.” and the general law says shall hold at least one regular meeting each month. And now lets look at the ARS 11-804 again for the next item I feel have been overlooked by the commission when adopting and approving the rules of procedures for them. They as a commission although not all appointed as required by statute made a decision to approve the Apache County rules of procedure and they approved that document on July 2.2009. But if you look at what the top of the rules of procedure say it might make you wonder.

Procedures of the Planning and Zoning Commission
Adopted June 6, 2002
Amended February 5, 2004
Proposed changes made on January 28, 2008
Amended July 02, 2009

And here is a link to this rules for you to read.

http://www.co.apache.az.us/PDFs/PlanningandZoning/CommissionProcedures.pdf

Now if this document was adopted was it ever approved by the board of supervisors?And according to ARS 11-804 section 4 it says ” 4. Transmit all of its recommendations, decisions, findings, reports and official actions, regardless of vote, to the board of supervisors.”

Did the Commission do this when adopting the Commissions rules of procedures? And if they did not would they be required to ratifiy their prior actions?

 Were any of the amendments to the adopted document ever approved by the board of supervisors? I doubt it and know the newest amendment was not. So are they acting according to a illegal adopted rules of procedure besides the conflict of law when they canceled the P&Z meeting for October???

I have a great example of how some counties are willing to correct mistakes and unlike Apache county it does not take a lawsuit to get them to understand they made a mistake. The Cochise County P&Z had canceled the P&Z meeting for October also. But I sent the statute ARS 11-804 via email to Make Jackson a very good men to know and he forwarded it with his concerns to the Cochise county P&Z commission. And below it what happened. Thanks Mike for all your help.

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This from the Cochise County Individuals & Property Rights Association website.Good job Mike.

Planning & Zoning Commission WILL meet October 14

The Commission didn’t have any docket items for October, so the County thought it could skip the October meeting. However, George Walsh of ACIPRA (Apache County’s counterpart of CCIPRA), remembered ARS 11-804(A)(2), which says “The commission shall … hold at least one regular meeting each month.” County employees and the County Attorney’s office contacted state officials, but the legal eagles weren’t able to evade a plainly worded law.

However, just because there’s a meeting doesn’t mean there has to be a quorum. And alas, the flu is going around, causing the chair to wonder “who knows if several commissioners might catch it by Oct 14.” Who knows, indeed?. It’s unlikely that many citizens will attend in the hope that a quorum of Commissioners will attend; we lowly citizens value our own time as much as our great and powerful Commissioners value theirs — and we don’t get their mileage allowance for attending. So much for dedicating this meeting to citizens who have things stored up for the Call To the Public; and so much for the ice cream and cake that might have provided for everyone attending such a meeting.

Perhaps now’s the time for the Supervisors to appoint Alternate Commissioners so there’d never be a worry about getting a quorum.

Upcoming Meeting and Public Hearing in Apache County

Here is a link to the Apache County Calendar page:

http://www.co.apache.az.us/Calendar.asp

And soon we will be providing updates for other meeting of interest