FCD WEINMAN APPEAL HEARING REPORT.PDF

MARICOPA COUNTY
FLOOD CONTROL DISTRICT
BOARD OF DIRECTORS
HEARING OFFICER’S
REPORT AND
RECOMMENDATION
In the Matter of the Appeal to the
Board of Directors by
GARY WEINMAN
This matter came before the undersigned hearing officer to review the
written appeal of Gary Weinman to the Flood Control District Board of
Directors which contests the Decision and Order of the Floodplain Review
Board that recognized the right of property easement holder Cave Creek
Crossing Corporation (CCCC) to sign the landowner’s authorization portion of
the application seeking a permit from the Flood Control District for
construction in a floodplain/floodway as a proxy for the landowner, as well as
the Motion to Strike/Dismiss Weinman’s appeal filed by CCCC.
Having reviewed the Floodplain Review Board’s Order and Decision,
having read and considered Gary Weinman’s appeal to the Board of
Directors, having read and considered the Motion to Strike/Motion to Dismiss
filed by CCCC, the Motion for Leave to Appeal to the Board of Directors filed

by CCCC, the responses and replies to the Motions, and the Motion by Desert
Foothills Land Trust to intervene in this appeal, the undersigned now submits
a report and recommendation to the Flood Control District Board of
Directors.
FACTUAL BACKGROUND
Cave Creek Crossing Corporation (CCCC) is the holder of a property
easement across the property owned by Gary Weinman which was granted
to CCCC in 1983 by Weinman’s predecessor in interest and which easement
allows ingress and egress to 54 residences in the area. A portion of the
easement (Section 2) allows CCCC to construct a “wet crossing” type ford
across Cave Creek at Desert Hills Drive and reads:
CCCC hereby agrees to satisfy and meet the following
conditions:
a. TO construct a “wet crossing” type ford across Cave
Creek, said ford to be designed by an accredited
engineer and of sufficient construction to withstand
flooding in the creek and to withstand fully loaded
construction vehicles of the type ordinarily used in
residential construction. The ford shall be constructed
of high grade building materials. The design of the ford
is to be subject to approval by an independent
consulting engineer which may be retained at the
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option of Anderman (prior property owner). The ford
shall also satisfy and meet all applicable rules and
regulations, ordinances or governmental standards,
and shall be maintained in conformity with the same.
The CCCC will, at its cost, maintain the ford as is
necessary to assure that it will be fully usable at all
times.
b. The connecting roadway along the easement shall
be graded by the CCCC at its expense at least once
annually so as to meet the passage requirements of an
ordinary passenger vehicle unless Maricopa County or
some other governmental entity provides grading at
lease once annually to the same or higher standard.
The 40 foot wide ford across Cave Creek was constructed by CCCC and
has been maintained by it since the crossing became available to the 54
residences. A dispute between CCCC, the landowner, and downstream
landowners has arisen due to the actions of CCCC maintaining the crossing,
especially after flood events, whereby CCCC has removed debris, sand, and
rocks from the crossing and deposited those materials downstream from the
crossing. CCCC has also excavated and re-graded areas of Cave Creek to
prevent damage to the 40' ford, all of which has caused a change to the
natural flow and has altered the watercourse of Cave Creek above and below
the “wet crossing”. The Army Corps of Engineers that has jurisdiction over
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Cave Creek issued a Notice of Violation to CCCC.
CCCC desired to re-construct the Cave Creek crossing by raising it to
the grade level of the banks of Cave Creek. The landowner refused to
sponsor or authorize it to seek a permit application to the Flood Control
District to allow such re-construction because of CCCC’s actions in
maintaining the existing crossing, especially after flood events. CCCC then
submitted a permit application under its own name, seeking a permit from
the Flood Control District to re-construct the “wet crossing” by bringing it up
to the grade level of the banks of Cave Creek.
CCCC’s permit application was rejected by the Flood Control District on
the basis that it requires the property owner to submit or authorize such
applications pursuant to Section 403.A.2 of the Floodplain Regulations of
Maricopa County, which authorization requirement the Flood Control District
interpreted as being the owner of record (per the County Assessor's Office
records). CCCC appealed the Flood Control District’s decision to reject its
permit application to the Floodplain Review Board, pursuant to regulation
409.A which reads:
Any person may file an appeal to the Floodplain Review
Board if they feel that there is an alleged error or
doubt in the interpretation of these Regulations, or that
due to unusual circumstances attaching to their
property an unnecessary hardship is being inflicted on
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them, or if there is a dispute between the person and
district employees, of if location of a floodway or
floodplain is in doubt.
The bases on which CCCC relied for its appeal were the dispute about the
Flood Control District’s interpretation of its regulation about who must file or
authorize a permit application and its assertion that unnecessary hardship
has been inflicted on the residents due to unusual circumstances (CCCC also
added a conflict claim but it was directed at a Deputy County Attorney, not a
Flood Control District employee - that portion of the appeal was later
dropped).
After an extensive review of all of the circumstances involved in the
CCCC permit application, including allowing the landowner, Gary Weinman,
two CCCC residents, and the Desert Foothills Land Trust to intervene in the
appeal proceedings, the Floodplain Review Board concluded that the
interpretation of the Flood Control District’s Regulation 403.A.2 which
requires a “signed property owner authorization” if the owner wishes to
grant an agent, contractor, or consultant authority to make decisions on
their behalf, means the registered property owner as shown by the County’s
tax assessor’s office which, in this case, is Gary Weinman, was a reasonable
interpretation and that the Flood Control's interpretation of that regulation
does not allow it to interpret an easement to decide whether the property
owner has delegated the right to submit a permit application authorization
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on behalf of the owner of record by the easement holder. However, the
Floodplain Review Board concluded that the interpretation of the Flood
Control District “works an unreasonable hardship” since the easement held
by CCCC “purports to allow the project” and that “there is some urgency for
the project to move forward”.
Having concluded that CCCC could not execute WEINMAN’s
authorization for a permit as the property owner, the Floodplain Review
Board next looked at whether circumstances exist to demonstrate an
“unnecessary hardship” inflicted on the 54 residences of CCCC caused by
“unusual circumstances” attaching to their property rights of holding the
easement such as to create an exception to the Flood Control District’s
authorization interpretation. As the Floodplain Review Board explained, it
considered CCCC’s representations that the ford across Cave Creek could not
be used by service providers, including emergency response, garbage
pickup, cable provider, and others who have indicated that they would not
use the crossing due to its current condition and that such refusal by service
providers were at “an increased risk due to recent fires in the area because
the condition of the crossing complicated efforts both to evacuate (if
necessary) and for the fire department to access the area”. The Flood
Control District had taken the position that the dispute between Weinman
and CCCC which led Weinman to refuse to sign the permit application was

not a hardship and that the dispute between Weinman and CCCC should be
settled through means other than the Floodplain Review Board (FRD
proposed seeking a declaratory action in Court).
The Floodplain Review Board then decided that it could exercise its
discretion under Regulation 409 “when unusual circumstances attaching to
the property create an unnecessary hardship” and that the property owner’s
refusal to sign the permit application “for an activity that is facially covered
by an easement agreement may qualify as an unusual circumstance”
allowing the Floodplain Review Board the authority and discretion to remand
the permit application to the Flood Control District “with instructions to
process the FUP (Floodplain Use Permit) application”, subject to limitations
whereby the Flood Control District cannot authorize permission to CCCC to
access the landowner’s property and which does not waive CCCC’s
responsibility to obtain all other necessary permits.
The Floodplain Review Board then ordered:
The FRB upholds the District’s interpretation that the
requirement for property owner authorization set forth
in Section 403 means the record owner as shown on
the records of the Maricopa County Tax Assessor.
However, it is within the FRB’s discretion to find
unusual circumstances attaching to the property create
an unnecessary hardship. The FRB so finds here. The
property owner of record refuses to sign the
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application and the applicant has presented a facially
valid easement that appears to provide a right to
conduct the activities for which is permit is sought and
has conducted work under the easement in the past.
The District is instructed to complete the technical
review of CCCC’s application consistent with this order
and either issue or deny the permit. No permit
issuance or denial is before the FRB.
Following the entry of that Order, property owner Gary Weinman
appealed to the Flood Control District Board of Directors. The appeal argues
that the FRB exceeded its authority by making a determination allowing the
permit application to proceed, despite Gary Weinman’s refusal to sign the
permit application authorizing CCCC to proceed with the permit application,
and that the Floodplain Review Board should not have determined any rights
CCCC may have under its easement since only a court of law can make that
determination. Weinman further argues that there are no unusual
circumstances attaching to their property because the property in question is
Weinman’s property, not CCCC’s property, that CCCC does not have any
right to enforce the easement until it cures its violations to the satisfaction of
the property owners in the area, and that the 40' ford easement across Cave
Creek does not demonstrate any unusual circumstances since it is useable in
times other than during storm events’ flow of water through Cave Creek.
Weinman details the “years of damage” caused by CCCC by performing work
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that was unlawful and unpermitted, all of which needs to be restored before
any improvement to the 40' ford can be evaluated. Weinman insists that he,
as property owner, cannot be excluded from the permit application
procedure.
CCCC then filed a Motion to Strike/Dismiss Weinman’s appeal to the
Board of Directors. In its Motion, CCCC argues that Weinman is not an
“aggrieved appellant” party to these proceedings as he was only allowed to
intervene in CCCC’s appeal to the Floodplain Review Board and CCCC argues
that it can continue with its permit application without Weinman’s permission
Or participation.
Also, the Desert Foothills Land Trust, the holder of a conservation
easement in the area, including Cave Creek, requested to intervene in this
appeal to the Flood Control District Board of Directors. Desert Foothills Land
Trust was allowed to intervene in the proceedings before the Floodplain
Review Board and it asks to intervene in this appeal to allow it to determine
whether the proposed construction by CCCC would have negative impacts on
their conservation easement and perhaps suggest alternatives that could
have less impact and a more sustainable crossing of Cave Creek.

DISCUSSION
CCCC is the holder of a valid recorded easement allowing it to ford
Cave Creek through the property owned by Gary Weinman. As an easement
holder, CCCC has property rights to the extent of its easement. Since
Weinman refused to sign the application authorizing CCCC to proceed with
improving the ford across Cave Creek, CCCC was permitted to seek such
authorization through the Floodplain Review Board. Both CCCC and Weinman
had a full opportunity to argue before the Floodplain Review Board about
whether Weinman’s refusal to sign the permit application resulted in an
unnecessary hardship to CCCC. By allowing Weinman’s intervention in the
proceeding, Weinman became a party to the proceedings (unlike a situation
where Weinman would only be recognized as a friend of the court). When
the Floodplain Review Board ordered that CCCC’s permit application will
proceed for a determination by the Flood Control District by permitting CCCC
to sign the permit authorization as a proxy for the landowner, and entered
that Order subject to certain limitations, Weinman could assert that he was
“aggrieved” by that Order and request review by the Board of Directors.
The ONLY issue before the Flood Control District Board of Directors is
whether the Floodplain Review Board’s Order was capricious, arbitrary, or
beyond its jurisdiction which could lead to an abuse of its discretion. The
Floodplain Review Board did not denigrate the freeholder’s property interest
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and simply considered whether Gary Weinman’s refusal to sign the permit
application submitted by CCCC authorizing the issuance of a permit to
improve the crossing of Cave Creek created unusual circumstances which
resulted in an unnecessary hardship, per Regulation 409. Clearly the
Floodplain Review Board had jurisdiction to entertain CCCC’s appeal to it
pursuant to Regulations 409 and 411 and there were no participation
restrictions imposed by the Floodplain Review Board (the Board allowed 4
intervention requests) which allowed a full presentation to it - both pro and
con.
The Floodplain Review Board carefully considered that, although Cave
Creek is an ephemeral stream, when a flood event occurs, it prevents the
occupants of the 54 residence members of CCCC from using the easement
crossing. The Floodplain Review Board carefully considered that information
together with the evidence adduced that showed that, because of the
deteriorated condition of the crossing at other non-flood times, first
responders, service providers, waste removal providers, and “numerous”
others will no longer cross to provide service to the 54 members. CCCC also
raised the spectre of wildfires in the area that limits evacuation from the 54
residences or fire service to prevent property destruction. The instability of
ingress and egress prevents CCCC from enjoying the full property benefit of
the recorded easement.
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Since the Floodplain Review Board was in the paramount position to
evaluate and balance the evidence put before it, it was also in the best
position to determine whether relief should be afforded to CCCC “due to
unusual circumstances attaching to their property an unnecessary hardship
is being inflicted on them”. From the evidence presented to it, the Floodplain
Review Board’s choice points could allow it to craft equitable relief to CCCC
and allow it to serve as a proxy for the landowner’s required authorization on
the Flood Control Permit application. The easement is not novel and CCCC’s
application’s intentions made to the Flood Control District are central to the
terms and conditions of that easement, all as demonstrated to the Floodplain
Review Board by CCCC on the face of the easement itself.
The Floodplain Review Board considered the arguments made to it by
CCCC, Gary Weinman, the Desert Foothills Land Trust, and homeowners who
use the crossing. Those arguments presented to the Board negate any
notion that the Floodplain Review Board entered its Orders arbitrarily or
capriciously and, because the Floodplain Review Board relied on uncontested
facts presented by all parties, one cannot conclude that its Order was
entered by abusing its discretion to interpret Rule 409.
The technical review of CCCC’s application to raise the crossing over
Cave Creek to match the banks’ elevation was analyzed favorably by the
Flood Control District and the demonstrable effects of a new crossing are
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evident. The remaining issues before the Flood Control Board of determining
CCCC’s responsibility to construct the crossing within the terms and scope of
any permit issued by the Flood Control District and requiring full compliance
by CCCC to obtain any other permits, clearances, and approvals necessary to
be able to construct the new crossing BEFORE it can construct the new
crossing, are all elements best delegated to the Flood Control District’s
Director — with the full participation by the area’s landowners and other
interested parties.
RECOMMENDATION
1). It is the recommended decision of the undersigned hearing officer
that the Flood Control District Board of Directors enter an Order finding that
the Floodplain Review Board did not act arbitrarily or capriciously, that the
Floodplain Review Board did not exceed its jurisdiction, and that the
Floodplain Review Board did not abuse its discretion in finding the existence
of unusual circumstances attaching to the property creating an unnecessary
hardship to the 54 residences of CCCC.
2). It is the recommendation of the undersigned hearing officer that
the Flood Control District enter an Order affirming the decision of the
Floodplain Review Board recognizing the existence of unusual circumstances
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attaching to the property creating an unnecessary hardship to the 54
residences which decision directs the Flood Control District to accept CCCC
as the proxy for the property owner’s authorization for a permit, and
additionally, enter an Order denying this appeal by Gary Weinman, and enter
an Order remanding this matter to the Flood Control District’s Director for a
determination of whether to issue a permit to Cave Creek Crossing
Corporation (CCCC) as requested in its application, conditioned on a
technical review of the permit application, a determination of responsibility
by CCCC to fulfill the requirements of the issued permit, setting restrictions
preventing CCCC from entering on the property of any other landowner to
conduct the permitted work, and directing CCCC to provide that any permits,
clearances, and approvals necessary to effect the Flood Control permit be
obtained from any other local, state, or federal agency having authority and
jurisdiction over this floodplain and floodway before any construction of an
improved crossing may begin.
3). It is the recommendation that the Board enter an Order allowing
the intervention of landowner Gary Weinman and Desert Foothills Land Trust
in the Flood Control District’s Director’s review of this permit application.
4). It is the recommendation that the Board enter an Order denying
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CCCC’s Motion for Leave to File an Appeal to the Board of Directors.
DATED: February 5, 2021
H OL 7. MERKOW
Hearing Officer
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