FLOOD CONTROL BOD WEINMAN APPEAL DECISION .DOCX

FLOOD CONTROL DISTRICT OF
MARICOPA COUNTY
BOARD OF DIRECTORS
DECISION AND ORDER
In the Matter of the Appeal to the
Board of Directors by
GARY WEINMAN
This is an appeal under A.R.S. § 48-3612 and Section 409 of the Maricopa County
Floodplain Regulations from a final decision of the Floodplain Review Board dated October 7,
2020. Gary Weinman has appealed from that decision.
This Board asked Hearing Officer Harold Merkow to review the matter and issue a
recommendation. The Hearing Officer’s recommendation is attached hereto as Exhibit A and
incorporated by reference. In addition, the Board has conducted its own independent review of
the matter. The Board approves and adopts the Hearing Officer’s recommendations as the basis
for its decision, and supplements the grounds for this decision as follows.
Weinman’s predecessor in interest granted to Cave Creek Crossing Corporation (CCCC)
an express easement, which is an interest in real property. Under Section 2 of that easement,
CCCC is legally and financially responsible for maintenance of the easement, including
conformance of that easement to “all applicable laws, rules, regulations, ordinances, or
governmental standards.” Under Arizona law “the easement carries with it the right to do all acts
necessary and proper in order to obtain full enjoyment of the easement.” Papa v. Flake, 18 Ariz.
App. 496, 498 (1972).

The central issue in this appeal is a dispute over the meaning of the word “owner” as used
in Section 403 of the Floodplain Regulations (which requires authorization from an “owner” as
part of an application for a permit). Because the word “owner” is not defined, it must be
interpreted in light of common usage and to further the purpose of the Floodplain Regulations,
which is to protect the public health and welfare. See Floodplain Regulations, Section 103;
Sedona Grand LLC v. City of Sedona, 229 Ariz. 37 ¶26 (App. 2012) (observing that floodplain
regulations have a “commonsense, self-evident nexus” to public health and safety).
Specifically, the issue here is whether the word “owner” is always limited to ownership
as reflected in the records of the Maricopa County Assessor, who maintains records to permit the
assessment of property taxes. If the same person or entity is responsible for both property taxes
and maintenance of a floodplain—which is common—the County Assessor’s records provide a
convenient and reliable way to determine the appropriate “owner” for purposes of Section 403.
But the assessment of property taxes involves a different legal regime than the regulation
of designated floodplains. And CCCC’s easement is not reflected in the Assessor’s records for a
reason that has everything to do with property taxes and nothing to do with floodplain regulation:
property taxes are not imposed upon easements.
Under these unusual circumstances, the purposes of the Floodplain Ordinance would not
be advanced by interpreting the word “owner” in a way that gives Weinman exclusive authority
to control the initiation of work in the floodplain. Indeed, recognizing Weinman as the sole party
with control over such work could impede, rather than promote, the purposes of the Floodplain
Ordinance. This case thus presents unusual circumstances that involve a potential hardship,
thereby allowing CCCC to initiate the floodplain application.
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This Board thus affirms the decision of the Flood Review Board allowing CCCC to
initiate the application for a floodplain permit. This appeal is hereby decided in accordance with
the Hearing Officer’s recommendations, and the District is ordered to proceed in conformance
with this decision by accepting an application from CCCC.
This decision is limited in scope. This Board of Directors does not have jurisdiction to
decide, and does not purport to decide, any civil dispute over the respective rights as between
Weinman and CCCC. Likewise, this appeal does not entail the review of any specific plans.
The application has yet to be filed.
An appeal of this decision may be initiated pursuant to Section 409(E) of the Floodplain
Regulations.
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FLOOD CONTROL DISTRICT OF
MARICOPA COUNTY
BOARD OF DIRECTORS
BY:
_________________________________
Chairman, Board of Directors
Date: ______________________
ATTEST:
________________________________
Clerk of the Board
Date: ______________________
Approved as to form:
________________________________
Deputy County Attorney
Date: ______________________
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Exhibit A
Hearing Officer’s Report and Recommendation
(see attached)