Posted by: Patricia Salkin | December 31, 2015

AZ Appeals Court Finds Appellant was Not Unconstitutionally Disadvantaged by Application of an Unconstitutional Burden of Proof in Nonconforming Use Matter

The Town of Cave Creek filed an eight-count complaint in Cave Creek municipal court alleging that Robert 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 argued 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. 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.

On appeal, Kerkel argued 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. However, the municipal court found both that Kerkel “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.” The court stated that there was no evidence that Kerkel’s use of the property was lawful prior to enactment of the Cave Creek Zoning Ordinances. Accordingly, the “failed to so provide irrefutably” language Kerkel cites from the municipal court’s order did not invalidate the court’s subsequent affirmative statement that Kerkel failed to prove any defenses by a preponderance of the evidence. Because Kerkel had not been unconstitutionally disadvantaged by the application of an unconstitutional burden of proof, he had not stated a basis for relief.

State of Arizona v Kerkel, 2015 WL 8164014 (AZ App. 12/8/2015)

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