Opinion
No. 1 CA-CR 15-0048
12-08-2015
STATE OF ARIZONA, Appellee, v. ROBERT E. KERKEL, Appellant.
COUNSEL Town of Cave Creek Special Prosecutor, Scottsdale By Mark S. Iacovina Counsel for Appellee Richard D. Coffinger, Attorney at Law, Glendale By Richard D. Coffinger Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No.LC2014-000243-001
The Honorable Crane McClennen, Judge
AFFIRMED
COUNSEL Town of Cave Creek Special Prosecutor, Scottsdale
By Mark S. Iacovina
Counsel for Appellee Richard D. Coffinger, Attorney at Law, Glendale
By Richard D. Coffinger
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Robert E. Kerkel appeals from the superior court's order affirming the judgment entered by the municipal court finding Kerkel guilty/responsible on two criminal misdemeanor counts and three civil counts of city code violations related to his use of his residential property in Cave Creek. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Town of Cave Creek filed an eight-count complaint in Cave Creek municipal court alleging, among other things, that Kerkel's maintenance of an automobile junk yard on his residential property violated various criminal and civil provisions of the Cave Creek Town Code and Zoning Ordinance. Kerkel defended against the charges by arguing primarily that his nonconforming use of the property began before Cave Creek was incorporated, and that because his use was lawful under the then-applicable Maricopa County rules and regulations, he was entitled to continue that same use.
¶3 Following a one-day bench trial, the municipal court found Kerkel guilty on two of the misdemeanor criminal counts and responsible on three of the civil counts. After sentencing, Kerkel appealed to the superior court, which affirmed. He then timely appealed the superior court's judgment. We have jurisdiction, but only to the extent Kerkel is challenging the validity of a municipal ordinance. See Ariz. Rev. Stat. ("A.R.S.") § 22-375.
The court found Kerkel not guilty on two misdemeanor counts relating to his unfenced swimming pool and his failure to obtain proper permits for construction of two covered patios. The court also found Kerkel not responsible on one civil count of illegal storage of a commercial vehicle.
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶4 Kerkel does not contest his criminal convictions, and only challenges the municipal court's rulings finding him responsible on two of the civil counts: Count 5 - Junk Motor Vehicle Storage, and Count 8 - Maintaining a Non-Permitted Use of Property. He argues in particular that the municipal court erred by requiring him to prove his nonconforming-use defense to these charges by "irrefutable evidence" as directed by Cave Creek Zoning Ordinance ("C.C.Z.O.") § 11.01(D), which he argues imposes an unconstitutional burden of proof.
¶5 The zoning ordinance at issue provides that: "In other than criminal proceedings, the owner, occupant or user shall have the burden to provide irrefutable evidence that a nonconforming structure, parcel or use was lawfully established prior to the effective date of this Ordinance." C.C.Z.O. § 11.0(D). Kerkel contends that this provision violates constitutional due process principles by imposing an "irrefutable evidence" standard rather than a "preponderance of evidence" standard. He also summarily asserts that A.R.S. § 9-462.02 preempts the ordinance and establishes that a preponderance of evidence standard is the applicable burden of proof. Kerkel seeks reversal of the municipal court's judgment on Counts 5 and 8 and remand for a new trial on the basis of the court's alleged error.
This statute affords municipalities the right, with delineated limitations, to "acquire by purchase or condemnation private property for the removal of nonconforming uses and structures." A.R.S. § 9-462.02. The statute does not address the burden of proof applicable to affirmative or justification defenses in property use cases, and Kerkel does not explain how the statute preempts the Ordinance.
¶6 Kerkel's arguments do not provide a basis for relief, however, because they are based on a faulty premise: that the municipal court applied an irrefutable evidence standard. Contrary to Kerkel's assumption, the municipal court found both that he "failed to prove any defenses by a preponderance as to the guilty and responsible findings, and as to those, the State has succeeded in proving beyond a reasonable doubt that [Kerkel] did not act with justification."
¶7 Kerkel cites to a statement by the municipal court in which the court cited Kerkel's argument that the Cave Creek Town Code required proof of a nonconforming-use defense by irrefutable evidence and noted that Kerkel had "failed to so provide irrefutably." But the municipal court did not base its ruling on an alleged failure to provide irrefutable evidence. Instead the court concluded that Kerkel had abandoned the non-conformity: "[T]he Court finds inapplicable the doctrine of non-conforming use because, while it did apply as to the pool barriers, the non-conformity was abandoned." Moreover, the court further stated that there was "no evidence" that Kerkel's use of the property was lawful prior to enactment of the Cave Creek Zoning Ordinances. Thus, the "failed to so provide irrefutably" language Kerkel cites from the municipal court's order does not invalidate the court's subsequent affirmative statement that Kerkel failed to prove any defenses by a preponderance of the evidence.
¶8 Because Kerkel was not unconstitutionally disadvantaged by application of an unconstitutional burden of proof, he has not stated a basis for relief.
Kerkel's other asserted arguments are unavailing because they are similarly based on his incorrect premise that the municipal court imposed an improper burden of proof. --------
CONCLUSION
¶9 The superior court's judgment is affirmed.