My Opening Brief is before the 9th Circuit Court of Appeals, 15-15566. 7-26-16 FILED 2nd revised brief.compressed. My Reply Brief was filed on July 17, 2017. 7-17-17 DktEnt 103-1Reply Cave Creek violated Federal and State law as a fraudulent scheme to wipe out my real estate development.
In 2000, my investor and I acquired 5.7 acres at the base of Black Mountain to develop an artistic enclave of sustainable adobe homes. We bought an abandoned house on 4.27 acres and an adjacent 1.5 acre lot on Schoolhouse Rd. from Debi Ravenscroft. Debi got greedy and sold the property twice. The 2nd buyer, Jim MacDonald, was assembling Town core lots for a large project, disfavored by the “Sorchych Junta” who runs Cave Creek. To assuage MacDonald for losing the buy, I corrected false statements made by Sorchych at a Town Council meeting. Shortly thereafter, TOCC instructed me under color of law to develop my project through a “series of lot splits.” When I submitted a lot split application, Cave Creek stopped complying with 9-500.12 and A.R.S. 9-500.13.
ARS 9-500.12(B) requires “[t]he city or town shall notify the property owner that the property owner has the right to appeal the city’s or town’s action pursuant to this section and shall provide a description of the appeal procedure. The city or town shall not request the property owner to waive the right of appeal or trial de novo at any time during the consideration of the property owner’s request.
On August 29, 2016, the Town Clerk, Carrie Dyrek admitted that Cave Creek failed to follow federal and state law as its official policy from 2001 to present. (See 9-13-16 dkt ent 53 motion to supp record). The property rights of hundreds of Creekers have been violated over the last 16 years. By violating A.R.S. 9-500.13 & 9-500.12, Cave Creek exacted dedications of land, easements or improvements from property owners by denying them due process rights to notice, a hearing and tolling provisions of A.R.S. 12-821.01 (C). By failing to follow federal and state law, Cave Creek/AMRRP’s attorney Murray can obtain favorable rulings that all claims against the Town are time barred by A.R.S. 12-821.01 (A), and A.R.S. 12-821.
It took 13 years to discover that Cave Creek failed to follow MANDATORY procedural due process in 9-500.12 & A.R.S. 9-500.13 when it required an exaction of a strip of land to approve my lot split of parcel 211-10-010. By failing to follow Federal and State law, the Town transformed my lot split into a non-conforming subdivision in violation of A.R.S. 9-463 et seq. However in 2002, I thought my lots were lawfully split so I applied for permits to build driveways and sewer. Once again, Cave Creek violated federal law as codified in A.R.S. 9-500.13 & 9-500.12 when it required easements to approve sewer permits to not only serve my lots but serve the neighborhood. Although former Town Manager Usama Abujbarah verbally agreed to reimburse me for repairing and extending the sewer, once the sewer was constructed, Usama reneged, claiming I was responsible for the cost my subdivision’s infrastructure even though the sewer also serves my neighbors whose lots are also improperly subdivided by a “metes and bounds” survey. Per ARS 9-463.03, it is unlawful to sell any portion of a subdivision until a final plat map is recorded. “Metes and bounds” surveys of 4 lots are not a final plat maps vetted through the Town’s Subdivision Ordinance procedures.
My neighbors did not compensate me for the sewer or the use of my driveway and related utilities (a private takings). Although it is unlawful to sell my land, BMO Harris Bank had a Maricopa County Superior Court Judge judicially foreclose and order the Sheriff to seize my house and sell it to BMO even though BMO owed me for sewer, driveway and related utilities on two homes adjoining my property.
However, not only are subdivisions created by “metes and bounds” surveys unlawful to sell, the subdivisions are non-conforming such that the lots are unsuitable for building and not entitled to permits per Section 6.3 of Cave Creek’s Subdivision Ordinance. Per Section 1.4 of the Town’s Zoning Ordinance, permits issued to lots that are not entitled to permits are void. Per Section 1.7A of the Town’s Zoning Ordinance, any person who violates any provision of the Zoning Ordinance is guilty of Class One misdemeanor (any person would include Town employees and officials like Cordwell, Dyrek, Francia, and the Town itself). Per Section 1.7B of the Zoning Ordinance, it is unlawful to build, use or permit any property or improvement in violation of the Zoning Ordinance. Per Section 1.7C: “When any building or parcel of land regulated by this Ordinance is being used contrary to this Ordinance, the Zoning Administrator shall order such use discontinued and the structure, parcel of land, or portion thereof vacated…” As these are violations are continuous, there are no vested rights.
Litigation began in 2006, but due to extrinsic fraud, the true nature of my claims was not apparent. As Cave Creek failed to follow federal law, and its attorneys did not disclose the Town’s violations, State Courts issued rulings in violation of the Supremacy Clause. See also: http://law.justia.com/constitution/us/article-6/05-obligation-of-states-under-supremacy-clause.html
The briefs at the 9th Circuit arise from a complaint (4-24-14 Filed stamp New Complaint w exh) accusing Cave Creek of engaging in a pattern of racketeering, per A.R.S. 13-2314.04, to control and convert my property in violation of A.R.S. 13-1802, by a fraudulent scheme in violation of A.R.S. 13-2310. AMRRP/Cave Creek’s attorney, Jeff Murray violated Rules of Professional Conduct to commit fraud on the court. By failing to disclose Cave Creek’s failure to provide Federal procedural protection, he obtained favorable state court rulings in violation of the Supremacy Clause. The briefs argue equitable tolling, estoppel, fraud on the court and quiet title. As I still own lot 211-10-010D, there is no statute of limitations. See Cook v. Pinetop Lakeside. Since State Courts upheld State statutes of limitations to undermine federal law, the State is liable because the State’s procedural protection and post-deprivation remedies are inadequate.
Additional filings at the 9th Circuit include:
“A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.” Massachusetts v. EPA, 549 U.S. 497,518, 127 S.Ct. 1438,1453, 167 L.Ed.2d 248(2007)(emphasis added)(quoting Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89,94-95(C.A.D.C.2002)). The Complaint connected the procedural step of Cave Creek’s failure to follow ARS 9-500.12& 9-500.13 to ALL state and federal substantive results. This “litany of litigation” resulted from Cave Creek’s failure to follow 9-500.12/13. See “Case Log” in DktEntry101.
The law is well settled that a court may award compensatory damages in a §1983 civil rights action for the denial of procedural due process. See Memphis Community School District v. Stachura, 477 U.S. 299,307(1986)(“compensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as `impairment of reputation…, personal humiliation, and mental anguish and suffering.'”)(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,350 (1974)) The Complaint argued with plausible particularity that AMRRP/TOCC’s conduct was motivated by evil intent and the callous indifference to the federally protected rights of its citizens. “Punitive damages may be assessed in § 1983 actions `when defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.'” Castro v. Cty. of Los Angeles, 797 F.3d 654,669 (9thCir.2015)(quoting Smith v. Wade, 461 U.S. 30,56(1983)).
 See Ponce v. Parker Fire Dist., 322 P.3d 197,201–Ariz: Court of Appeals, 1st Div.2014:“However, when a defendant has departed from rules of its own making governing the conduct of its employees, a plaintiff may thereby demonstrate breach of an appropriate standard of care. Thropp v. Bache Halsey Stuart Shields, Inc.,650 F.2d 817,820(6thCir.1980)(“When a defendant has disregarded rules that it has established to govern the conduct of its own employees, evidence of those rules may be used against the defendant to establish the correct standard of care.”) TOCC established correct standards for complying with A.R.S.§§9-500.12/13 in 1997, then abandoned those standards as its official policy in 2001 when I applied for a lot split.(DktEntry56 at 2-3,13-22+Exhibits at 27-229)
 See Cook v. Losnegard, 228 Ariz. 202,¶18, 265 P.3d 384,388 (App.2011) (“`Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.'”), quoting Curtis v. Richardson, 212 Ariz.308,¶16, 131 P.3d 480,484(App.2006)
See press release here: 5-30-16_CAVE_CREEK_Press_Release_2.