FORMAL ATTACHMENT FLOODPLAIN APPEAL HEARING OFFICER.PDF

Received Date

Flood Control District MY pared
of Maricopa County or

For District use only

FLOODPLAIN APPEAL APPLICATION

DAdministrative OFloodplain Review Board XBoard of Directors
Owner Information
Name: Gary wEINmAN
Malling Address:, 3.// 5” IZ Ave. City; Crayne €__ State: Towa zp: _§ 22/1

Phone Number:.3)9-329-777 __ Business Phone Number (if applicable):_ 37 9- 27.3.2 - “1/ 3°7
E-Mail GSershsnwesnman ® gmail - Com
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Property Information

Address: ELDESERT HILLS DR_ Cltys_CAve céeekstate:_Az_ ZIP:

Assessor Parcel Number:__2./]5°7067A _ Saction:__ Township:____ Range:___ % Section:_
Applicant Agent Information >

Names, ames. LZ. Cs avcdes Sewnres Hovde 5 Conny pana

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Mailing Address:.9800 UV. Ccealm! cule /800 Citys Phy States Ae ZIP: 5S COY
Phone Number: 02-23 4-73 27___ Business Phone: Number (jf applicable);__<Sa -_
E-Mail \le e ihe. law

Pur; of the appeal: (attach grounds for appeal as separate docimanise
A opel Gown Flood plan “Revew Beare Oct. 2, 2022 Aecirgonr iu

EER B~2020-001,

APPLICANT SIGNATURE Claas (Wem prrnen DATE _// dh a L 20%»
For Flood Control District use only
Tracking Number: ee Supervisory District: = Fea:
Floodplain: FIRM Panel: Zone:,
Map Date; BFE: RFEs
Additional Documentation: [1 Documentation as required by Floodplain Regulations for Maricopa County
C) Property Posted O Coordination
(Agency)

For Floodplain Administrator use only
Administrative Appeal 0 Grant 0 Deny

Floodplain Administratar Date
D Conditions or restrictions (if checked see attached)
For Floodplain Raview Board use only.
ACTION TAKEN: Grant Deny Continuance
Date _ Date Date
BOARD ACTION CONFIRMED; DATE

FCDMC Rav. 7/19/2011

2801 West Durango Street Phoenix, Arizona 85009 Phone: 602-506-2419 Fax: 602-372-6232

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JENNINGS, HAUG & CUNNINGHAM, L.L.P.
2800 N. Central Avenue, Suite 1800
Phoenix, AZ 85004-1049

Telephone: 602-234-7800

Facsimile: 602-277-5595

Attorneys for Gary Weinman

BEFORE THE MARICOPA COUNTY FLOOD CONTROL DISTRICT
BOARD OF DIRECTORS

STATE OF ARIZONA

In re Matter of Cave Creek Crossing | APPEAL OF FLOODPLAIN
Corporation REVIEW BOARD FINAL ORDER
AND DECISION, dated October 7,
2020
(FRB-2020-001)

Gary Weinman appeals to the Board of Directors from the final order and
decision of the Floodplain Review Board (herein “FRB”) of Maricopa County dated
October 7, 2020 and entered in Docket FRB-2-2020-001. Weinman was granted
intervenor party status by the FRB on September 23, 2020, and pursuant to Section
409 (D) hereby timely files this appeal as an appellant aggrieved by a decision of the
FRB. Weinman has completed and submitted the Floodplain Appeal Application.

FACTS: Gary Weinman is the fee-owner of certain land located in Cave
Creek, Arizona and upon which is located a portion of Cave Creek (the “Creek”)
and a wet crossing. See attached Ex. A for depiction of property and the portion of
Desert Hills Drive that crosses his land.

On Weinman’s private property is a 40-foot wide wet crossing that was
supposed to be professionally maintained in compliance with all regulations by
Cave Creek Crossing Corporation (herein “CCCC”). CCCC instead ignored the
applicable statutes, rules and regulations, and has performed excavation and

dredging work in the Creek without permits for the last several years. After

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receiving complaints from the down-stream property owners, the Army Corps of
Engineers issued a Notice of Violation to CCCC — which to this day has not been
remedied.

Weinman has been an active participant in the meetings and hearings before
the Flood Control District (the “District’). After the District required CCCC to
comply with applicable rules and regulations and obtain Weinman’s signature on a
permit application for work CCCC wished to perform on Weinman’s land, CCCC
appealed from the District’s order. Weinman moved to intervene in this appeal on
September 16, 2020, and as mentioned above said motion was granted by the FRB.

Weinman, through his attorneys, participated in the FRB hearing on
September 23, 2020, that led to the issuance of the FRB’s October 7, 2020, final order
and decision which required the District to accept CCCC’s permit application
without the property owner's signature and without first requiring CCCC to restore
the Creek and remedy all damage done by the prior un-permitted and improper
excavation and grading CCCC performed both within the 40-foot crossing and

beyond the 40-foot limits.
The Conditional, Non-Exclusive Easement

On October 5, 1983, the original property owner, Richard A. Anderman
granted CCCC a conditional easement under which CCCC was permitted to
construct and maintain a “wet crossing” or “ford” on Cave Creek which would
allow residents on the west side of the Creek to have access to the Town of Cave
Creek. The easement is entirely located on private property owned by Weinman.
The easement does not grant CCCC exclusive use of the 40-foot wide strip of land
described therein. The Easement states:

Said easement is not an exclusive easement but is subject to the equal
right on the part of Anderman, and his heirs, successors and_assigns,

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and such easement shall not interfere with the “pre-existing” rights of
the holders of any other easements relating to the same properties.'

CCCC rights are not superior to Weinman’s rights. Weinman’s rights are at
least “equal,” but for the reasons explained below, CCCC current rights under the
easement, if any, are not enforceable.

The easement includes several express conditions on CCCC’s use of the
easement. CCCC agreed to “satisfy and meet the following conditions,” one of
which is CCCC’s promise that:

The design of the ford is to be subject to approval by an independent
consulting engineer which may be retained at the option of Anderman.
The ford shall also satisfy and _meet_all applicable laws, rules and
regulations, ordinances _or_governmental_standards, and shall_be
maintained in conformity with the same.

CCCC’s Violations of the Conditions

The CCCC does not claim it maintained the ford in compliance with “all
applicable laws, rules and regulations, ordinances or governmental standards.” In
fact, for the last several years, CCCC violated every one of the District’s rules and
regulations, including the most important one, which is to obtain a permit before
performing dredging, excavation and grading work in the Creek, which would then
allow the work to be inspected and accepted by the District.

The last several years of improper, unpermitted and unlawful work left the
Creek bed scarred and damaged. CCCC excavated materials from upstream of the
40-foot easement, and in doing so damaged and altered the natural course of the
Creek.

Rather than remove gravel and debris left on the crossing by periodic flows of

the Creek, CCCC pushed the gravel off the crossing and into the Creek bed. CCCC

1 A copy of the easement is found in CCCC’s Exhibit No. 4 provided to the Board of
Appeals.

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stockpiled an unsightly and unnatural mound of gravel on the downstream side of
the 40-foot easement. This mound has impeded the flow of the Creek for the last
several years.

CCCC’s improper and unlawful activities left the downstream property
owners significantly concerned and this resulted in their reports to the District and
to the US Army Corps of Engineers of CCCC’s improper and unlawful activities
performed in the Creek.

The US Army Corps of Engineers issued a Notice of Violation due to CCCC’s
actions of unlawfully depositing sediment in the bed of Cave Creek — including land
extending beyond the 40-foot wide ford.? The CCCC’s improper actions directly led
to a change in elevation of the creek bed as determined by USACE, and USACE has
required CCCC to correct the violation. CCCC cannot perform this restoration work
on private property without the property owner's consent. CCCC has not promised
each of the owners that CCCC will perform restoration work and has not yet sought
the property owners’ consent to do so. By all accounts, CCCC does not intend to
address the damage its improper and un-permitted work has done to the Creek,
including portions of the Creek beyond the 40-foot wide crossing.

Because CCCC did nothing to address the past disturbances, the downstream
property owners submitted to the District their separate permit application
documents by which they intend to restore the damage caused by CCCC and avoid

the increase risk of floods. Weinman joined in the permit application procedure

2 Attached as Ex. B is a depiction of the area of CCCC’s past disturbance outlined in a
pink dashed line and extending on to private property beyond the 40-foot wide ford, both
upstream and downstream. This depiction was prepared by the Army Corps of Engineers
and is found in CCCC’s Exhibit No. 23, p. 17/18 provided to the Board of Appeals.

3 CCCC did not provide the District or Board of Appeals with a copy of the Notice of
Violation. Weinman’s attorneys have requested through the federal Freedom of
Information Act (FOIA) all documents related to this matter from the USACE, however, as
of the date of this filing the records have not yet been received.

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pending before the District. These separate permits submitted by the property
owners for purpose of restoring the Creek and repairing the damage done by CCCC
are pending before the District.

The CCCC may have thought the easiest and likely cheapest way to remedy
the situation was to raise the height of the ford as opposed to remediating the
sediment they deposited. To accomplish the ford height adjustment CCCC
submitted for a Floodplain Use Permit (FUP) without disclosing its prior violations
or disturbances to the Creek bed or water flow, and without proposing any
restoration work at all. That is how this matter falls under the jurisdiction of the
Flood Control District, and now its Board of Directors.

After the fee owner and owners of the downstream property reported the
violations to the District and to the Army Corps, the CCCC hid behind a claim that it
was an “unusual hardship” for them to be subject to approval of the fee landowner
of the property as required by the regulations and by Flood Control District.
However, the “unusual hardship” was created by CCCC when they unlawfully
deposited fill material in the creek bed and received the violation from USACE and
refused the impacted property owners’ demand for restoration.

Regardless, the FRB acceded to CCCC’s argument that it was an “unusual
hardship” for them to be subject to the fee landowner’s private property interest as
required by the regulations and Flood Control District’s interpretation. The FRB
ordered the Flood Control District to process CCCC’s application without getting
the landowner’s consent and directly contrary to the fee owners’ rights to have all
prior violations restored first. This action, which is inconsistent with the Flood
Control District’s current and past interpretation of the regulations, is arbitrary, and
capricious.

CCCC claims it is a matter of life and death that the wet crossing be accessible

to those who purchased property on the west side of the Creek. CCCC’s own

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members claim it was CCCC’s years of mismanagement and CCCC’s refusal to
correct its prior violations that is causing CCCC’s current issues.* CCCC is reluctant
to incur the costs needed to restore the Creek even though the current condition was
caused CCCC’s unlawful dredging and excavation activities.

The fee owner is not standing in the way of a proper restoration of all prior
damage done by CCCC’s improper and unauthorized acts. The fee owner, and the
downstream owners, have applied to the District for the proper permits to restore
the prior damage. CCCC did not apply to the District for a permit to perform
restoration work.

The fee owner and downstream owners contend the level of the riverbed was
altered by CCCC’s years of unlawful excavation and stockpiling of gravel in the
Creek bed, and the restoration work will return the riverbed to what its natural level
should be. The Army Corps must have agreed because it issued its Notice of
Violation.

Once the Creek is restored to its pre-damage condition, and CCCC pays for
the cost of restoration, CCCC’s request that the fee owner sign a permit application
will be better received. As of this date, CCCC has not promised the fee owner or
downstream owners to perform any repairs, and has not revealed what repair work
CCCC might be considering (if any). This placed CCCC in material breach of the
Easement. As a party in material breach of the conditional easement, CCCC cannot

seek to enforce its rights (at least not until it cures all prior breaches).

LAW: This matter is subject to the Floodplain Regulations for Maricopa
County as amended by version 1/2/18, Adopted January 17, 2018. Article Four of

4 The Gara Complaint describes CCCC’s member Mr. Gara’s allegations and is found
in CCCC’s Exhibit No. 21 provided to the Board of Appeals. He describes how CCCC has
ignored its obligation to obtain permits, and has damaged the Creek by its improper
activities. The action is pending at CV2020-053772 in the Maricopa County Superior Court.

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said regulations details the various mechanisms for applying for and the processing
of FUPs. Article Four in Section 403 (A)(2) requires that an applicant for an FUP
obtain a “signed property owner authorization” as part of completing the
application process. There is no definition of “property owner” contained within
the regulation that would expand the meaning beyond what is typically understood,
and the Flood Control District has consistently held that a “property owner” means
the owner who holds the fee ownership over the land. In this case, Weinman is the
fee owner. In addition, this matter is subject to Section 404 of the Federal Clean
Water Act which requires anyone disturbing or depositing dredge or fill material

into a water of the United States to obtain a permit from USACE.

ARGUMENT: Weinman agrees with the Flood Control District’s position
that a “property owner” for purposes of processing an FUP is and must be the fee
landowner, and the property owner must consent to an application to perform work
on his or her private property. No appeal was taken from this part of the decision.

Both the Flood Control District and the Maricopa County Attorney’s Office
stated that if there is a question regarding what constitutes “property ownership”
the appropriate place to address that question is in the Superior Court seeking a
declaratory judgment. See FRB final order in footnote 1 on page 3. Absent a judicial
determination on property ownership the Flood Control District will be in the
unenviable position of making these determinations itself, and absent a clear
definition of “property ownership” such as the definition the Flood Control District
applied in the past there will be uncertainty and confusion for future applicants who
may or may not be fee property owners. The Flood Control District should not be
the entity determining what rights, if any, CCCC may have under an easement it
repeatedly breached by unlawfully performing dredging, excavation and grading in
the Creek without permits, inspections or approvals. Of course, CCCC will not

invite a judge to declare its rights because as a party who is in breach of the

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conditional easement, CCCC knows a judge will follow Arizona law and determine
CCCC has no right to enforce the easement.

In addition, Weinman and other landowners up and downgradient from the
ford are working on an alternative to CCCC’s proposal to raise the height of the
ford. Weinman and other landowners are concerned that by not completing the
remediation and restoration required as a result of CCCC’s unlawful sediment
deposition before addressing the proposed reconstruction of the ford, that any future
work CCCC does on the ford may further erode the creek and cause additional

unnecessary environmental damage downstream from the ford.
LAW:

Section 409 of the Floodplain Regulations states:

A. 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 them, or if
there is a dispute between the person and district employees, or if
location of a floodway or floodplain is in doubt.

ARGUMENT:

There are no “unusual circumstances attaching to their property” for two
primary reasons. First, “attaching to their property” means attaching fee owner's
property and not to some alleged rights CCCC claims to have under a conditional
easement it violated and has no legal right to enforce. Weinman’s property has
nothing unusual about it, other than perhaps its need to have restoration work
performed as a result of unlawful dredging and excavation having taken place on
his property.

As a party in default of its obligations under the Easement, CCCC does not

claim the 40-foot wide area is “their property,” at cannot lawfully make such a

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claim. CCCC does not have the right to enforce the easement, at least not until it
cures its prior violations to the satisfaction of the property owners. See Young v
Border Broadcasting Co., 75 Ariz. 298, 255 P. 8888 (1953)(Describing how like party
such as CCCC can enforce a contract (the Easement) only if that party “fully
performed his part of the contract[.]”) CCCC does not claim it “fully performed”
under the Easement, and the past several years’ of un-permitted and improper work
leading to the Army Corps’s Notice of Violation makes it unlikely CCCC would
even try to prove it “fully performed” its obligations under the conditional
easement.

Second, there are no unusual circumstances attaching to this 40-foot strip of
Creek crossing. In other words, the 40-foot ford across the Creek is no different than
other wet crossings. During heavy rains, the ford is not useable, and after it is
cleared, the ford becomes useable. This cycle has repeated itself for decades without
any “unusual” events - with the exception that CCCC has been pushing and
stockpiling gravel and debris downstream over the past several years and has, itself,
impacted the flow of water while it violated all applicable statutes, codes and
governmental requirements.

To cover up the years of performing improper, unpermitted and unlawful
dredging, excavation and grading in the Creek bed, CCCC claims its permit
application is now a matter of life and death for those who live in locations that are
not accessible during times the Creek is flowing. Although CCCC failed to mention
in its permit application the years’ of prior work it performed in the Creek without
permits, and failed to mention in its permit application that CCCC is the entity that
stockpiled the gravel on the downstream side of the 40-foot wide crossing, during its
appeal CCCC claims the lack of ability to cross the Creek during times of flow and

flooding excuses any need to discuss the damage it caused to the Creek. CCCC thus

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seeks to have its permit application move forward without delay and without
restoration to the owners’ property.

However, restoration in compliance with the requirements of the Flood
Control District and the Army Corps of Engineers and keeping the ford open during
times the Creek is not flowing are not mutually exclusive. Both can occur. The
proper method is to first address the years of damage caused by CCCC’s
unpermitted and unlawful work. CCCC did not do this, but Weinman and the
downstream owners are applying for permits to perform this restoration work.
After the restoration work is fully planned and permitted, and performed, and
assuming CCCC pays for this restoration, CCCC will have cured its many years of
violations under the Easement. Then, once it cures its prior violations (including
those described under the Army Corps of Engineer’s Notice of Violation) the fee
owner and the conservation easement owner of the 40-foot wide ford will be more
receptive to CCCC’s request to for a permit allowing it to remove the existing road
and install a new road or perform other work.

The District was adamant that it should not be the entity that decides legal
issues, such as the rights CCCC might hold under a conditional easement or what
impact CCCC’s years of unpermitted, improper and unlawful dredging and
excavating in the Creek bed has on those rights. There is good reason behind the
District’s reluctance to adjudicate such disputes, and the District’s position that a
permit application must be signed by the fee owner removes the concerns over if a
party like CCCC has established it “fully performed” its obligations under a
conditional easement. This body may also determine there are better entities than
the District, the FRB or this body to adjudicate such dispute, and on that ground

overturn the FRB decision.

WHEREFORE, Gary Weinman, the fee owner of the property in question,
requests the Board of Directors overturn FRB’s October 7, 2020 decision. CCCC

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should not be allowed the opportunity to apply for permits for work to be
performed on Weinman’s private property without Weinman’s approval, as
specifically required by the District’s rules and regulations.

The District should instead be allowed to continue to process Weinman’s
pending restoration permit application (and the application of the downstream
owners) which will allow the fee owners to address the restoration of the damage
caused by CCCC’s unpermitted work. If the restoration work approved by the
owners is permitted and performed (or paid for) by CCCC, or if there is at least an
agreement in place to perform the restoration work required by the property
owners, if any road work is needed after the restoration work is performed, then

Weinman will consider signing CCCC’s permit application — but not before.
DATED this 6th day of November, 2020.
JENNINGS, HAUG & CUNNINGHAM, LLP

fa

James/L. Csontos
Attotneys for Gary Weinman

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A COPY e-mailed
this 6th day of November, 2020, to:

Wayne J. Peck

Deputy Maricopa County Attorney
Civil Services Division

225 W Madison

Phoenix, AZ 85003

direct: 602.506-5269

fax: 602-506-6083

Email: peckw@mcao.maricopa.gov

Attorneys for the Flood Control District

Steve Gruenemeir, Secretary

Cave Creek Crossing Corporation
40099 N. 52™ Street

Cave Creek, AZ 85331

secretary .cavecreekcrossing@gmail

/s/ James L. Csontos

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EXHIBIT A

(Depiction of Weinman’s Property)

I) \ f ScaLe: 1"= 20"

4

Legend

4 | | WUS/OHWM Survey Area
Index Contour (10-foot)

7

Minor Contour (2-foot)
—— CCCC Easement Line

| —-:— Section Line

| s==="= EX EXPSD CONC FORD
1 ——— EX BURIED CONC FORD
— EXASPHALT ROAD

| [(_] Approx. Area of
] Past Disturbance
Work Area / Area of Loss

Photo Location
and Direction

>

Desert Hills Drive
Cave Creek Crossing Project
Restoration Workmap

AERIAL: Background aerial photo data obtained from
the Maricopa County Assessor's Office via the
county's gis data server and is the 2020 imagery. The
flight date is late 2019 (October-December) but the
exact date is not provided with the file service.

JENNINGS, HAUG & CUNNINGHAM, L.L.P.

24586

9999 Maricopa County Flood Control District Check Date: 11/06/2020 Check Number:24586
REQ.BY Date INV # Description Acct.No. Amount
JLC 11/06/20 11.6.20 Appeal Fee 0 250.00
Check Amount: $250.00
= a aA =P
24586
JENNINGS, HAUG & CUNNINGHAM, L.L.P. © NATIONAL BANKOF ARIZONA
NATIONAL OPERATING ACCT. WWW.NBARIZONA.COM | 800.497.8168
11/06/2020 $250.00 g
: a
TWO HUNDRED FIFTY AND 00/100 DOLLARS pal oer E
PAY Maricopa County Flood Control District j
ORDER a
VA jORIZED. SIGNATURE
wOOO2,58h" tbe2bO053c08 OPODOO LAER
JENNINGS, HAUG & CUNNINGHAM, L.L.P. 24586
9999 Maricopa County Flood Control District Check Date: 11/06/2020 Check Number:24586
Date INV # Client Matter Atty EXP Description GL Acct Amount |
11/06/20 11.6.20 7098 0000 JLC OTH Appeal Fee 1110000 250.00

PRODUCT DLM102

USE WITH 91500 ENVELOPE

Check Amount: $250.00

Deluxe Corporation 1-800-328-0304 or www.deluxe.com/shop PRINTED IN U.S.A. 8 pint
19387408001

JENNINGS HAUG . 2800 North Central Avenue
CUNNINGHAM _ Suite Eighteen Hundred

LAwyers——— Phoenix, Arizona 85004-1049

TO:

Fran McCarroll

Clerk of the Board of Supervisors

Clerk of the Flood Plain District
Board of Directors

301 West Jefferson, 10'* Floor

Phoenix, AZ 85003