The County is working hard to reduce a rural widow to poverty.  That's what CCIPRA learned in investigating a zoning violation case, Case Number V-09-0120, Hearing Officer Jack Chapman.  The property is in County Supervisor Richard Searle's district.  Searle has been looking into the case.  The Planning Department has even misrepresented matters to him.  The property involved is grandfathered.  The Department has been using a phony "power of attorney" issue to delay ending this persecution.  The County is running out of places to hide.  (Last revised 10/19/09)


DIGEST

About 1970, 5 years before county zoning even existed, Mike Mercer moved onto a remote junkyard north of Benson.  It's still remote, and Planning & Zoning has acknowledged, various times over the years, that it's grandfathered because it existed before zoning did.

Mike later bought the property and worked at it, until his neck was broken in 2004.  He survived, and the junkyard continued with help from John Roberts, who'd been using the site for years.

In February this year, Mike died, leaving his widow Donna living on about $500 a month.  Less than 2 months later, neighbors new to the area filed a complaint about the junkyard.  P&Z prosecuted -- vigorously.

John Roberts negotiated for Donna, emphasizing the grandfathering issue, but mainly asking for time -- time to shut down the junkyard, clean it up, and get Donna some money out of it.  P&Z didn't address grandfathering when John raised it.

John also revealed that Donna is, since losing Mike, often away, hard to reach.  LESS THAN 24 HOURS BEFORE THE HEARING, P&Z told John he could not represent Donna and the hearing could not be delayed.  The law says otherwise.

P&Z also said that if John went to the hearing, he might not be allowed to speak.  He didn't go.

At the hearing, the Hearing Officer ignored the negotiations and grandfathering, and issued a "default order" including a fine about 3 times Donna's monthly income.

People began to ask about helping Donna.  P&Z had smooth talk but no action.  Then P&Z declined to negotiate with John because he didn't have a Power Of Attorney from Donna.  Now Donna has executed a Power Of Attorney.  Now P&Z has no excuse for delay.

P&Z also finally addressed grandfathering -- by emailing Supervisor Searle that it had a photo disproving grandfathering.  But the email DIDN'T tell Searle that the photo is from 1996, and can't disprove grandfathering.  Then John got new evidence too, an eyewitness letter about pre-zoning junkyard use.

The letter and Power Of Attorney are online; links to them are in Part VII below.

An out-of-control P&Z affects every rural resident, but this case is in Supervisor Searle's district.  P&Z has shown that it will not respect John or Donna's rights.  If Searle will step up, he can probably get the hearing results vacated quickly, and get done whatever it takes to set things right for Donna.

The above events are set out more fully in Parts I through VI below.  Part VII adds what's happened since this writer was contacted about the problem, including "dirty fighting" by the Department when people began to see what the Department was doing.  Part VIII is the conclusion.


THE FULL STORY

This isn't only Donna Mercer's story; it's about what the County can pull on any of us if all of us don't stick together.

Here are links to the separate chapters in the full story:

    I. THE PROPERTY USE IS GRANDFATHERED

    II. THE COUNTY'S PROSECUTION OF A GRANDFATHERED USE

    III. SERVICE OF THE COMPLAINT -- INSUFFICIENT?

    IV. SAYLOR'S "PRE-HEARING MEMORANDUM"

    V.A. THE DEPARTMENT NEGOTIATED WITH ROBERTS AFTER DONNA RECEIVED SAYLOR'S NOTICE

    V.B. THE COUNTY'S SUDDEN SWITCH ABOUT NEGOTIATING WITH JOHN

    V.C. AFTER THE COUNTY'S SUDDEN SWITCH

    VI. DEFAULT JUDGMENT, AND POSSIBLE RELIEF FROM JUDGMENT

    VII. THE DEPARTMENT TURNS TO DISINFORMATION

        Latest Updates

    VIII. CONCLUSION: THE COUNTY SHOULD VACATE THE JUDGMENT


I.  THE PROPERTY USE IS GRANDFATHERED

Mike Mercer moved onto 10 remote acres in Cochise County about 1970.  At first he rented, but in 1971, he bought the property on a 15 year mortgage, which he paid off in 1986.  Mike and Donna met in the mid-90s, and she became an essential part of the operation.

The property's mailing address is 328 West Rockspring Lane, Benson AZ 85602, but it really isn't near Benson.  It's over 10 miles from Benson, and that's as the crow flies.  Thanks to Google Maps, a map of the route to the property is online at
   http://littlebigdog.net/MercerProperty.jpg
and a closeup of the immediate area is online at
   http://littlebigdog.net/MercerCloseup.jpg
The location remains, as it has always been, remote.

When Mike moved in, the property was already a "collection yard, storage yard, recyling yard" -- what people might call a junk yard.  Mike, and later Donna, continued that use.  Maybe "junk yard" doesn't sound like much these days, but when Mike moved in, a junk yard wasn't just a landfill dropoff.  People went to junk yards to find all kinds of "stuff."  Mike and Donna got by.

John Roberts, a family friend and participant in the operation for decades, says the operation "is basically a buy/sell storage yard. Nothing goes on for months and then we may be out there working for a week at a time. My mechanic and I rent half of the property and have for many years [] Cars and vehicles are the main operation. Mike would collect them from that general area and has as mentioned before.....for the past 40 odd years."

The property is "grandfathered."  There was no County zoning when Mike moved in, or when he bought the property.  County zoning didn't begin until 1975.  County zoning is allowed by state statutes, and the applicable statute, Arizona Revised Statute ("ARS") 11-830(A), says "Nothing contained in any [zoning] ordinance authorized by this chapter shall (1) Affect existing uses of property or the right to its continued use ... for the purpose for which used at the time the ordinance ... takes effect."  County Zoning Regulation 2003.02(A) says "Any use of land ... lawfully existing ... prior to January 1, 1975 ... may be continued even though such use does not now conform with these Regulations."

The grandfathering was long acknowledged by the County.  Mike told John Roberts, his friend and longtime co-user of the property, that "soon" after he moved onto the property, and again in the 1980s, zoning inspectors told him he was grandfathered; and several nearby properties got the same message at the same time.  Other people are ready to verify this (and one of them now has; see section VII below by clicking here.)

In 2004, a truck drove into Mike's car and broke his neck.  Mike lingered for years, knowing he was dying.  A lawsuit dragged on until Mike settled for $25,000, which was spent on things for Donna to use after he died.  On February 3, 2009, Mike died.  His money is gone.  Donna lives on public assistance, about $500 a month.  John and the mechanic try to keep her car running, and provide other services she cannot afford.  John says that most of the time, Donna is "in town with her cousin trying to get some medical help and basically getting her life back in order."

Mike's injury and death did not stop the operation.  John says that after the injury, "[t]he price has slacked off somewhat now and we have not been doing as much, also with the death of Mike but there has been no discontinuance of the operation."

But a nearby property was sold, and John says that its new owners told people they would acquire Mike's property after he died.  Soon after Mike died, the Planning Department received a complaint from the new neighbors, and began prosecuting it.

After the complaint was filed, Mike and Donna's friend John negotiated at length (see Section V below) with the Department, emphasizing his own knowledge of the operation and its being grandfathered, and reminding James Vlahovich of his own memory, too; Vlahovich, currently Deputy County Administrator, used to be an inspector, and had personal knowledge of the property in years past.  Vlahovich didn't dispute John's statements, at a time when Vlahovich should have said so if he disagreed with them, and also when Vlahovich's acknowledgment of the grandfathering would have saved everyone a lot of time and work.

The Department made another sudden modification of its position about two months after the hearing's outcome ruined Donna:  now the Department claimed to have photographs disproving grandfathering.  If the County had produced such photos before the hearing, when John Roberts was negotiating, he could have evaluated them.  In any event, John KNOWS what accurate photos must show, and he remains firm about grandfathering.  His personal knowledge, and Vlahovich's, can't be ignored.  Maybe the County interpreted the photos wrongly, or trees shielded parts of the operation from aerial view, or the photos don't show typical activity on the property; and there are other possibilities.  So far, the Department has talked about having the photos, but has actually shown them to few, if any, people.

In any event, new evidence can't end the matter just on the Department's say-so.  For new evidence to come in, judgment must be vacated, and a new hearing held (see Section VI below).  If the County wants to argue about what the photos show, the County must vacate the judgment and reopen the case, and give Mercer and her representatives the chance to dispute the Department's assertions about the evidence.


II.  THE COUNTY'S PROSECUTION OF A GRANDFATHERED USE

On April 8, 2009, Planning Department employee Chris Saylor sent Mike and Donna a Notice Of Violation asking them to call him by April 23 about the following conditions:
   . Outdoor storage in excess of that permitted for residential use.  Building materials, Vehicles, furniture, applicances, tires, trash and debris.
   . Please provide titles to all vehicles for owner(s)/occupant of property
   . Operating a junkyard without a permit

Donna contacted John Roberts, the family friend.  On April 21, John emailed Vlahovich.  John's email included:
   " ... Mike and Donna Mercer, 328 Rock Spring Road ... recently received a violation letter from the county, complaint from a neighbor.
   "This one needs some recollection on your part.
   "Mr. Mercer owned the property long before I came to Pomerene and met you ....  The Mercer property was a junk yard when he purchased it and he has continued to operate it as such all these years....
   "If I am to help [Donna] at her request I need to know if this is another one of those situations where nothing was written down or recorded.
   "Many of these propertys exist in the county and it would seem that some status as a recycling point would be beneficial in getting scrap, etc off neighboring propertys. Many folks simply do not have the time and money to load and utilize the dump facility and end up using an out of the way wash, close by.
   "I have not sent a copy to Susan [Buchan] or Rick [Corley] since they were not here in the early 80's. You were... when the new rules were proposed and these mentioned properties were targeted and then allowed to continue under some rule......Hopefully you can recall, save a lot of time."

Vlahovich didn't answer, though if his personal recollection was different from Roberts's, this was the appropriate time to say so; and ordinarily a person does object when someone "puts words in his mouth" or memories in his mind.  To repeat:  Vlahovich said nothing.

Donna, after contacting John, did not answer Saylor, and on May 1, Saylor sent her a "Final Notice" stating that "review of the violation on your property has found continued non-compliance" so "a COMPLAINT has been filed ... for a hearing on July 16, 2009."

Donna gave this material to John, who contacted a website, Landrights.com, whose "Bill Munro" advised Donna to "scribe out the conditions of the violation notice and write in UCC1-308," in accordance with a "common law" theory.  On May 22, Donna did as instructed, and mailed Saylor a copy of his April 8 and May 1 letters, marked as instructed, and notarized on each page.

Clearly, sometime in early May, Donna received this "Final Notice."  However, "Final Notice" is not the same thing as a Complaint, and a Complaint did not issue until June 9.

On May 26, Saylor mailed Donna, stating "I have received the letters that were sent to you, and you have notarized them all.  If you have any questions or concerns about this please feel free to contact me to discuss this matter further.  Please call me at (520) 432-9240 to discuss the resolution of this issue."

Saylor's letter was interesting.  Saylor has previously been perceived by rural residents as "problematic."  In early 2008, during an investigation of remote property on EE Ranch Road, one citizen wrote "Saylor came out and told me verbally that I had 30 days to get off my property.  All my building and animals.  No written paper stating this" and "He tried to bully me into something and he was acting like he was above the law."  (The quotes are online at
   http://littlebigdog.net/_EEK2.jpg
and
   http://littlebigdog.net/_EEK3.jpg
For the full letter, see pages _EEK1 through _EEK6 .)

Donna did not answer Saylor's letter.  On June 9, the Cochise County Hearing Officer issued a Complaint which was signed by Saylor and sent to Mike and Donna.

The June 9 Complaint alleged that "the Respondents on the 7th day of April 2009, through the 3rd day of June 2009, did commit a violation of ... Zoning Regulations ... 603, 1811, 2301, and 2304 ... as follows:  Use of the property for a junkyard without a permit, and outdoor storage of vehicles, auto parts, appliances, construction material, tires, trash and debris, which constitutes a public nuisance."

The June 9 material also included two Summonses, one each for Mike and Donna.  Mike, dead since February 3, chose not to sign; and Donna did not sign or return her summons.  One might wonder why Saylor sent Donna a summons addressed to her deceased husband Mike.  The EEKx.jpg letters mentioned a few inches above give an indication that such boorish behavior is nothing new from Saylor.

Donna received notice from the Post Office that the first Notice Of Violation had been sent by certified mail, but she did not pick up that mail; and she received no more Post Office notices of certified mail from the County; everything she received, after the first Notice Of Violation, came by regular mail.

The June 9 material also included a Notice Of Hearing on July 16.  It said:  "You may disagree with the complaint.  If you do, you may file an answer explaining your position on the Answer form included in this packet.  Bring with you any and all exhibits, documents, statements, and witnesses to be offered as evidence ....  IF YOU FAIL TO APPEAR AT THE HEARING, THE HEARING OFFICER WILL CONSIDER THAT YOU HAVE ADMITTED TO THE COMPLAINT AND IMPOSE A CIVIL SANCTION.  You may be represented by counsel or by other designated representative(s) at the hearing.  If you are to be represented by counsel, you are requested to notify the hearing officer at least ten (10) days before the hearing date."

That language is not clear about what will happen if a defendant does not file an answer, or appear.  The instruction says "you may file an answer," not "you must."  It also says "IF YOU FAIL TO APPEAR ... THE HEARING OFFICER WILL CONSIDER THAT YOU HAVE ADMITTED TO THE COMPLAINT ...."  The word "CONSIDER" does not carry the force of other possible words such as "DETERMINE," "CONCLUDE," or "RULE."  Also, the language says that if Donna does not appear, a "CIVIL SANCTION" will be imposed; that does not indicate that a final judgment on the entire case will be entered, which is what happened (see Part VI below).  The County could benefit by improving the language it sends to citizens.

The June 9 material also included an "Answer" form, which states "If you disagree with the complaint, you should explain why in the space below ....  Mail this sheet to the Hearing Officer clerk ....  In response to the allegations in the zoning/building enforcement complaint in this case, the respondent(s) states the following: ...."  Donna did not use this sheet or otherwise communicate with the County about this herself.

The June 9 material also included a page called "GENERAL INFORMATION FOR RESPONDENTS," including "At the hearing, you will have the opportunity to present any evidence, exhibits or witnesses to enable the Hearing Officer to make a determination of the case....  You do have the right to be represented by an attorney or other designated representative ....  The County ... will generally not be represented by the County Attorney, unless you choose to be represented by a lawyer....  If the Hearing Officer does rule against you, you have the right to appeal his decision to the Cochise County Board of Supervisors ... within ten (10) days of the Hearing Officer's Order ....  [I]f you disagree with the decision of the Board of Supervisors, you can seek judicial review in the Superior Court....  If you have any questions concerning the procedures, please contact the Hearing Officer/Clerk ....  You may obtain a copy of the Cochise County Hearing Officer's Rules and Regulations on request...."

However, when this writer asked the Board Of Supervisors for the Hearing Officer's Rules, the County's first response was "The rules you are looking for are in Planning & Zoning rules.  Please send them a completed Public Records Request ...." -- that is, astoundingly, the County tried to make the rules hard to get!  However, this writer asked the Planning Department if the Rules were posted online or could be purchased at the front desk.  The answer was that the Rules "have not been posted in the past, but I think we will go ahead and do this.  I believe Rick Corley is going to get a copy of the Hearing Rules for you and I've cc'ed him on this message."  Corley did email the Rules, which are now posted online at
    http://littlebigdog.net/County%20Rules%20For%20Zoning%20Violation%20Hearings.htm


III.  SERVICE OF THE COMPLAINT -- INSUFFICIENT?

It's important that a Complaint be properly served; if it isn't, generally no judgment can be issued.  The record made available so far in this case does not show that the Complaint was properly served.

Hearing Rule 3(c) says "[t]he Zoning Inspector shall personally serve notice on the defendant at least five (5) days prior to the hearing," and Rule 3(d) says "[i]f the Zoning Inspector is unable to personally serve the notice, the notice may be served [by] alternative methods [including] mailing a copy of the summons and of the complaint, by first-class mail, postage prepaid ...."  That language is generally consistent with the corresponding state statute, ARS 11-808(E):  "If the zoning inspector is unable to personally serve the notice, the notice may be served" by other methods, including mail.

However, at the hearing, the only evidence apparently introduced about procedural matters like service was in Saylor's "Violation Log," in which one entry is "6/9/09 ... Hearing packet sent."  The "hearing packet" was the Complaint, Summons, etc.  But nothing in the Log shows any attempt at personal service -- which had to be tried before mail could be used.  Sending the hearing packet by mail, without attempting personal service, violated Hearing Rule 3(c) and ARS 11-808(E).  The County could benefit by improving its service procedures, that is, by obeying the law.

The Default Order by the Hearing Officer does not make any findings about service, although such findings are generally required in a final order (the findings the Default Order does make are discussed in Section VI below).  It is axiomatic that without service on a party, a court does not acquire jurisdiction over a party.  Without seeing any evidence to justify mail service, Chapman should have dismissed the case.  Glossing over a failure of service was improper, in fact shameful.  The County could benefit by bringing its quasi-judicial procedures up to normal legal standards.


IV.  SAYLOR'S "PRE-HEARING MEMORANDUM"

On June 30, Saylor submitted a "Pre-Hearing Memorandum" to Hearing Officer Jack Chapman, with copies to Buchan and Corley, for the hearing on July 16, 2009.

The Memorandum repeats the Complaint's language about "a junkyard without a permit, and outdoor storage of vehicles, auto parts, appliances, construction material, tires, trash and debris."  The Memorandum argues that the specified conduct violates Zoning Regulations "603, 607, 1811, 2301 and 2304," and the Memorandum includes the text of those regulations.  However, merely giving the numbers of entire multi-part regulations is generally understood not to be sufficient notice for a government prosecution.

The County could benefit by bringing its conduct up to normal American standards -- telling citizens, and courts or quasi-courts, what the actual charges are.

There are other problems with the "Pre-Hearing Memorandum."

Regulation 603 lists "Permitted Principal Uses" for "all RU zoning districts."  It states "Also see Section 606, Other Permitted Uses," but a use not permitted by 603 might still be permitted by 606.  No evidence in the record so far precludes this possibility.

Also, Regulation 603, unlike ordinary laws like those that forbid robbery, doesn't say what citizens can't do; it lists what citizens are allowed to do.  Donna wasn't charged with doing anything harmful, only with doing something not on the government-approved list.  When government prosecutes people merely for doing anything the government hasn't previously approved of, government is not serving citizens, it is tyrannizing subjects.

Moving on to the next Zoning Regulation listed in the Complaint:

Regulation 607 lists "Special Uses" which may be permitted "in an RU zoning district."

Regulation 1811 has sections A, B1a, B1b, B1c, B2, B3a, B3b, C1, C2, and D.  The Complaint does not allege violation of any particular section.  This lack of specificity arguably makes the Complaint insufficient as a matter of law.  In the state statutes governing Administrative Law Judges, ARS 41-1092.03(A)(1) says notice to a defendant must "Identify the statute or rule that is alleged to have been violated or on which the action is based."  Regulation 1811 has ten subsections; merely alleging violations of 1811 in general fails to satisfy ARS 41-1092.03(A)(1).

Also as to 1811:  Just before Buchan's predecessor as Planning Director retired, the outdoor storage regulations came under intense public scrutiny.  A proposed rewrite of them was set aside, and additional public meetings were promised but have never been held.  This history makes it surprising to see Buchan's "hard line" on enforcing outdoor storage regulations, especially in the remote area where Mike and Donna's land is.

Moving on to the last two listed Zoning Regulations:  Regulation 2301 is entitled "Violations Deemed a Nuisance," and states, in entirety, "Any building, structure, or use erected or maintained or any use of property contrary to the provisions of these Regulations is unlawful and constitutes a public nuisance;" and Regulation 2304 states possible penalties.

The reader will have noticed that the Memorandum fails to mention grandfathering, although grandfathering was John Roberts's main point during negotiations, and Roberts believes that County employee James Vlahovich personally knows of the grandfathering.  If the Memorandum had dealt with that issue, it would have been settled at the hearing -- but of course, the case would have been dismissed.  The Department chose a different course, which is a fine lesson for Cochise County citizens:  they can not trust their own county government.

The Memorandum recommends, in addition to financial sanctions, that Mike and Donna "be required to:
   ". Cease and desist operating a junk yard without a permit or
   ". Apply and obtain a special use for a recycling center or
   ". Remove all outdoor storage in excess of that permitted for residential use Vehicles, auto parts, appliances, construction material, tires, trash and debris and
   ". Provide titles to all vehicles for the owner(s)/occupant(s) of the property and
   ". Remove all vehicles not titled to the owners(s)/occupant(s) of the property in a legal manner."

On July 2, John obtained a copy of the June 30 "Pre-Hearing Notice" from Donna.  Obviously, Donna received it in the mail -- but receiving it in July does not fulfill the Department's duty to serve her with the Complaint in June (see Part III above).


V.  NEGOTIATIONS BETWEEN THE COUNTY AND JOHN ROBERTS

Part V has three subparts:  A, negotiations just after the Complaint was filed; B, the County's sudden refusal, the day before hearing, to accept John as Donna's representative; and C, events after the County's sudden switch.


V.A.  THE DEPARTMENT NEGOTIATED WITH ROBERTS AFTER DONNA RECEIVED SAYLOR'S NOTICE

The negotiations with Roberts continued for almost two weeks.

On July 3, John emailed Buchan, including:
   "A matter that has come to my attention last evening is a Notice of Hearing on parcel 208-10-07, Michael W. and Donna L. Mercer.
   "I would like to discuss the problem in general by phone if that is possible this afternoon. I emailed Jim [Vlahovich] some information on the property a month or so ago and Ms Mercer had her council send some paperwork to Chris Saylor to resolve the problem.  Chris mailed Ms Mercer the what was sent back to her so not sure the intent was understood. you should be familar with the situation.
   "Michael died three months ago and Ms. Mercer at his request has asked me to try and resolve the problems with the county. She is not physically or mentally able to deal with it at this time.
   "I had made Michael an offer on the property some years back and she has accepted that offer.
   "I do not want to proceed until I can reach some understanding with the county as a major cleanup involving time and investment is required.
   "I am in an out all day and will return your call if you should get answering machine."

On July 6, John mailed Donna a letter including:
   "Sorry I missed you Thursday night.I got the envelope and returned violation letters you sent Chris Saylor and I emailed the county and passed along the information your note said your councel had advised you to make sure they were aware. I have enclosed my email to that effect. I will send a copy of this letter and readvise so you will be sure.
   "Today is Monday, about 4.00 p.m. and I have heard nothing in response at this time. I will inform you when i do but if you are in Tucson with your Cousin I have no phone or addresss there.
   "I am willing to open escrow on the property this week but need some understanding from the county on the property status. As you know I, like you want to discontinue Mikes junkyard operation but 30 years of collecting will take some time and capital to make it ready for building.
   "You mailed Chris Saylor, the county enforcement officer their violation notice(s) and scribed out the conditions you did not agree with and cited UCC1-308 as your attorney advised. If I do not hear anything by Wednesday I would continue to follow his advice."

Later on July 6, John emailed Buchan a copy of the above letter, with comments:
   "I am enclosing a copy of a letter to Ms Mercer on her property under discussion. As mentioned Ms Mercer is barely getting over her husbands death and in the few converstions I have had with her does not fully understand the problems confronting her. The problem is a simple, solvable one...and will allow my son and i to work toward finalizing our purchase of the property.
   "1.Withdraw the violation
   "2.Reinstate the violation when the sale is finalized
   "My son and i wish to divide the 10 acres and build two homes.
   "One for him, one for me.
   "I am getting older and my stake in all this is to have a good neighbor.
   "This cannot be done without a cleanup of the property. This is a major undertaking and we had been asked to help out on this after Mr Mercers accident and he was informed he would not regain his health. A settlement by the insurance company was to pay for this but this did not happen.
   "The property is in Zone D (Area D) with different building restrictions and advantages for a home builder. Would you have a copy of these regulations mailed to my son ...."

On July 8, Buchan finally answered John, and asked about setting up further discussions with him.  In an email to John, copied to Saylor and Corley, Buchan said:  "At this point the Mrs. Mercer is scheduled to go to hearing next Thursday, July 16th., 2009. If you would like to come in for a meeting before that time, we can set one up. We should wait till this Friday or early next week, because Rick Corley is out of the office and he should be there. I think at this late date most of this could be discussed in the hearing, which you could attend should you choose to. The Department does not withdraw violations unless we have some indication that the individual is cooperating. If you have the ability to communicate with Mrs. Mercer, I would suggest she get in touch with Chris Saylor as soon as possible."

Buchan's question about John communicating with Donna is odd, because John's letter to Donna, which he had provided to Buchan, included "I will inform you ... but if you are in Tucson with your Cousin I have no phone or addresss there."  Since Buchan had read the letter that John provided, she should have understood his difficulty in getting in touch with John; it's unclear why Buchan chose to ignore what John had told her.  The County could benefit if its employees paid attention to what citizens said, instead of ignoring it.

On July 14, emails from John continued the discussion of Donna's case, and repeated his problems in communicating with her.

The first three July 14 emails were with Vlahovich.

At 2:38 pm on July 14, John emailed Vlahovich, including:  "I have advised Susan the current situation on Ms Mercer. She informed me she had an attorney and had sent paperwork to the county to resolve the problem..... that her husband bought to property as a junkyard B.C. (before county) and had discussed the operation with county people about the time you and I became aquanited.  There were several of these recylings yards around about the time the county tried to bring about new rules and they were all left alone.  This parcel has been a recycling yard, a way for the Mercers and the people they bought it from to make a living. Ms Mercer is agreeable to selling out and has approached me, being a long time friend and having been the county auctioneer for 20 years......selling and getting rid of the miscellaneous on the property.  This can be done but it will take some time to inspect, decide and make some arrangement to pay for the cleanup.  There is some value in some of the old cars and etc. but it will have to be set up, cleaned up, advertised and etc. to make it worthwhile. This will take some time.  Unless some arrangement can be made with the county I have no interest in proceeding and am only doing so at this point out of a long term friendship with her husband. I am available to try and help as I have told Susan but need to see some accomodation from the County.  You can reach me at 520 586 2022".

What did Vlahovich do when John reminded him of the history of the junk yard, and how far back in time it went?  If Vlahovich didn't agree, this was the time to say so.  At 2:49 pm, Vlahovich answered John's email, copy to Buchan:  "I'll discuss with Susan and get back to you John.  Thanks".

At 2:57 pm on July 14, John replied to Vlahovich:
   "thanks.
   "I am just trying to head off some unplesantrys for us all.  I am familar with the Mercers, they helped me when i came to town.....about 83-84. Lots of change wanted then and lots of country rules that didn;t pass. You were there so can add some insight to these properties that accumulated lots of junk when everyone was trying to find a way to survive.  This one can be cleaned up and a couple nice taxable homes built...but I know Ms Mercer has an attorney and is not too rational since her husband passed. I am one of her few trusted contacts but have not seen her for awhile. A delay in the proceedings until i can get with her, make some determination of the cost of cleanup would help......."

The last July 14 email was from John to Buchan, timestamped 9:53 pm.  It includes:
   "Since you advised early this week would be a better time for a meeting....I had waited to contact you feeling perhaps Ms Mercer would get in touch with me and would be better prepared to advise. She is not home and my note and her mail is still in the box.
   "As mentioned she apparently stays in town with her cousin and has health problems making any communication and travel difficult if not impossible.
    "She has left me in difficult situation to know what to do and so i went over the packet of information she left, copys of notorized scribed out letters she sent to Chris Saylor as per her attorneys advice. I do not know who this is and not being able to communicate with her advised my council of the situation and he advised the following:
   "1. to mail you a copy of the information sent and what the intent was.......
   "2. this intent being that in notorizing and sending these scribed out notifications which she does not agree with to the sender, Chris Saylor, Cochise Countythat she has protected her rights under UCC1-308.  An email was sent to Jim Vlahovich advising that this property has been used as a junk, recycling yard for 40 years. The fact that new people move in and want to benefit from a change in status of the property is not acceptable, not lawful.
   "3. Continuation of proceedings, a hearing, fines, penaltys accessed  against Ms Mercer will likely result in a filing in Superior Court against the County and all those involved.
   "My suggestion at this time would be to table the violation against Ms Mercer as it appears the county would have no jurisdiction as the use was established before Planning and Zoning was formed.
   "Ms Mercer, and myself have discussed the discontinuation of the Junk/recycling yard since her husbands accident, him being the operator and now not able to continue, therefore the recycling and any profit not forthcoming.  I advised in another email the planned use of the property which she is in agreement with and everyone benefits.
   "Any sanction, fine or other by the County will only delay any progress in the transformation.  I have funds and equipment now to resolve the problem but may not have if the situation drags out in the courts."

John's emails reaffirmed both that he could not reach Donna to communicate with her, and that the "grandfather" issue was alive.  Most of all, the County knew that John was representing Donna, and the County did not state any objection to that.  The County knew that communication with Donna was difficult, but the County made no suggestion at all that negotiations with John were not proper.

The County's discussion with John continued for the first two emails on July 15.

At 7:44 am on July 15, Vlahovich emailed to John, copy to Buchan:  "John, I discussed the issue of a delay of the hearing with Susan yesterday.  She indicated that staff has put considerable time and effort into this violation and is finally ready to go to hearing.  She stated that they plan on proceeding with the hearing and that you and/or Ms. Mercer will be able to explain your specific situation at that time.  Thanks".

Wasn't that a fine position for Vlahovich to take?-- that the Department had put in work, so the hearing would proceed.  Vlahovich's reasoning was fallacious, of course; delaying the hearing wouldn't invalidate any of the work the Department had put in.  In fact, delaying the hearing might greatly reduce any additional work by the County.  Vlahovich's real point, of course, was "no continuance."  The County could benefit if its employees did not offer nonsense when its citizens are trying to talk seriously.

John Roberts responded as politely as possible.  At 12:03 pm on July 15, John emailed Buchan:  "I am enclosing a copy of email to Jim [Vlahovich]...self explanatory.....  I will send you a copy of the "Conclusion and resolution" with thoughts. I know everyone has put a lot of time into this but keep in mind that .....thats their job......I have put a lot of time in also.....I don't get paid...... thanks".

Another part of Vlahovich's email was that John and Donna "will be able to explain your specific situation" at the hearing the next day.  Vlahovich was also offering nonsense here; Vlahovich was totally aware of John's difficulties in communicating with Donna.  In any event, Vlahovich's statement was nullified by what Buchan's next email to John, discussed immediately below.


V.B.  THE COUNTY'S SUDDEN SWITCH ABOUT NEGOTIATING WITH JOHN

The hearing was set for 1 pm on July 16.  Just less than 24 hours before then, at 1:39 pm on July 15, Buchan changed her position, and after weeks of negotiating with John, refused to negotiate with him.

In an email to John, copy to Vlahovich, Buchan wrote "It's more than just the time actually. We are beyond the date when this can be dismissed or extended by anyone other than the hearing officer, and because you do not own the property at this time (no matter what the future brings), we cannot consider you as the representative of the the property-it's illegal, it has to be the owner or a legally designated agent, by statute. I think there is an opportunity for things to wrked out in the hearing, but only if Mrs. Mercer comes in to do this. Anything else is just considered heresay. No disrespect, it's the way the law reads and we have tightened up our violations proceedings considerably in the past couple years.  Thanks".

Such a substantial change in the Department's position, coming the very day before the hearing, along with a refusal to consider delaying the hearing to allow John to adjust to the changed circumstances, can reasonably be considered as fundamentally unfair -- a denial of due process.

On the face of things, the timing of the Department's reversal of position seems suspect, perhaps even malicious.  The Department knew that John had difficulty in reaching Donna; it was unreasonable for the Department to require John to reach her on short notice, and the Department knew it was unreasonable.

Also, Buchan's email gave John a misleading impression of the law about continuing the hearing.  Buchan states that it was so late in the case that only the Hearing Officer could dismiss or continue the hearing.  Of course, a Hearing Officer always has control over his own docket, but that wasn't what Buchan meant; she implied that she couldn't even ask.  However, Hearing Rule 4.1 says "[t]he County may request, in writing, that the hearing officer dismiss a Complaint.  All such requests shall be filed prior to the date of hearing."  On a day when Rule 4.1 allowed Buchan to request a continuance, she gave Roberts the impression that she could do nothing.  That was misleading on her part.

Finally, Buchan's email misstated the law about John's ability to represent Donna.  Buchan said "we cannot consider [John] as the representative of the [] property....  it has to be the owner or a legally designated agent."  Buchan's assertion contradicts state law.  ARS 11-808(F) includes:  "At the hearing ... the alleged violator or his attorney or other designated representative" may present evidence.  Also, in the statutes governing administrative law judges, ARS 41-1092.01(D) says "The director [of the office of administrative hearings] shall not require legal representation to appear before an administrative law judge."  Buchan's statement also contradicts the County's official advice.  In the official papers mailed on June 9, the instructions say "[y]ou may be represented by counsel or by other designated representative ...."  Clearly, a person may be represented by "counsel" or by someone who is not "counsel."  And in these papers, "counsel" means "lawyer;" the "GENERAL INFORMATION FOR RESPONDENTS" sheet in these papers says "You do have the right to be represented by an attorney or other designated representative ....  The County ... will generally not be represented by the County Attorney, unless you choose to be represented by a lawyer."

On August 31, 2009, while researching the Mercer matter, this writer emailed Buchan and asked "I'm told that in County hearings on zoning violations, the Department says that a state statute allows only the owner or a legally designated agent to present defenses -- in other words, that an owner can't be represented by a person who's not an attorney.  I've tried to find such a statute but can't.  Can you please point me to the statute number?  Your citation will be much appreciated."  The next morning, September 1, Buchan answered "I'll forward your question to Adam Ambrose, our attorney. I'm not familiar with that statute."  Seven minutes later, Deputy County Attorney Ambrose, emailed "I'm unaware of such a statute, and we do not require that agents/representatives at zoning violation hearings be lawyers."  In short, any legal basis for Buchan's statement about negotiating with John Roberts remains a mystery.

On September 2, this writer emailed Buchan specifically about John's not being allowed to represent Donna.  Buchan answered that "when someone wants to get a Special Use or Rezoning, or in this case negotiate a settlement to a violation before they purchase property, [ ] we make them give us the written consent of the owner to do so. In this case neither Mr. Roberts not staff could find any way to contact the owner, so he could not be a 'legally-designated representative'. I could have chosen my words more carefully, because 'designated representative' would probably be more accurate."  Of course, saying "we make them" is not the same as citing legal authority, and John has noted that "The words that she emailed me were the words I was basing my decisions on, not the words she should have chosen."  This writer will add that if Buchan was convinced of John's inability to contact Donna, then Buchan should have realized that it was unfair for her to expect John to contact Donna immediately after being told that he could not represent her, less than 24 hours before the hearing.  The Department appears to have "set up" John, the Department's explanation is unconvincing, and any statement of regret by the Department looks like crocodile tears.  The County would benefit from more straightforward conduct by its employees.


V.C.  AFTER THE COUNTY'S SUDDEN SWITCH

At 3:09 pm on July 15, John emailed an answer to Buchan, showing he was taken off guard by the sudden switch in Buchan's email of 1:39 pm:
   "I do not consider it any disrespect. As noted I have been in touch with my council and he has advised the same thing you are and I am already aware of it.  This is why i have been trying to get a postponement, enough time perhaps to get Ms Mercer to come down and appear but......
   "this is not possible at this time.....
   "She is not well physically.......
   "She is not herself, mentally
   "Michael handled everything and she does not understand things very well and is basically unable to deal with this violation, at least at this time.
   "She is unable to get around very well... she has gain 100 lbs since her husbands death and is now over 400.
   "She has told me to take care of things by dropping off
everything relating to the violation.
   "But.......
   "As you know, I know, my Coucil knows.....i cannot represent her without her authorization and have no way of getting in touch.Her note said she was ill and going to the Dr in town.  I am assuming its to her cousins in Tucson but as mentioned have no phone number or no idea where that is....so again.......
   "We need to table the matter until such time as i can make contact and if she still wants me to help her......give me a power of attorney in the matter....... otherwise.....its all dead in the water.
   "I am faxing you and jim down an answer to the complaint and hope that you will present it to the hearing officer and in lieu of other legal steps she has taken.... find a way to .......grant a postponement........
   "I do thank you for your patience in the matter and hope that you trust my sincerely in trying to work things out."

That is, just as the Department could predict what would happen, John was unable to contact Donna in time to comply with the Department's last-minute refusal to negotiate with him.  This reeks of game-playing by the Department.

An hour later, at 4:08 pm, John sent Buchan and Vlahovich faxes -- not emails -- with the "answer to the complaint" mentioned in his 3:09 email.  These faxes, which were identical, included:
   "ANSWER
   "Ms Mercer does not agree with the Complaint as noted - Answer is on the attached sheet.  [NOTE:  The attached sheet is discussed below.]
   "She has filed for protection under UCC 1-308, and notified Chris Saylor, Zoning Enforcement Officer on 5-20-09.  Mr. Saylor acknowledged receipt on 5-26-09.
   "However it has been noted in several e-mails to the County that Ms. Mercer plans for the property will eliminate the violation & sought suggestions as to how this could be accomplished.
   "I relayed her request to postpone these hearings until such a time as she is physically & mentally able to attend.
   "I respectfully ask again that this hearing be postponed until she is able or designates someone to act in her behalf.
   "Sincerely, John Roberts"

The "attached sheet" was a copy of the Planning Department's "Conclusions and Recommendations," supplemented by material written by John:  one page summarizing Donna's situation, defenses labeled A through J, and two pages of discussion of annotations A through J.

The one-page summary stated "Please be advised the plans Ms Mercer has for the property will eliminate an charged violation by the county.  This fact has been brought to the attention of the county in several emails.  Ms Mercer is not able to deal with this issue at this time.  I have expressed what I know that I think would be helpful.  I have asked & ask again that you postpone this hearing until such a time as Ms Mercer can represent herself or appoint someone officially to do so."

Defenses A through J were as follows:
   -- Annot. A noted that the proceedings were against Mike and Donna, but Mike had died months ago.
   -- Annot. B argued that Donna's use of the property was "grandfathered," that there had been no complaints for 40 years, and that the operation is not visible to the public.
   -- Annot. C noted that no permit had been asked for because none was required.
   -- Annot. D said the "trash and debris" would be removed.
   -- Annot. E said "there has been no operation since Mr. Mercer's accident."
   -- Annot. F said it would take more than 30 days to clear up the lot.
   -- Annot. G gave details on how different materials -- metal, wood, and trash and debris -- would be removed.
   -- Annot. H said motor vehicle titles would be provided for all vehicles that were not crushed.
   -- Annot. I repeated H.
   -- Annot. J expanded on E's statement about needing over 30 days to clear up the lot, and outlined the cleanup methods.

Annotation E is problematic in stating that "there has been no operation since Mr. Mercer's accident" in 2004.  If that were so, then grandfather status might be lost, under ARS 2003.03(A), which says that if "a nonconforming use is ... discontinued for ... 12 consecutive months as a result of conduct within the control of or attributable to the property owner," then grandfathering is lost.  Obviously, Mike did not choose to have his neck broken, and the broken neck was caused by an accident not attributable to Mike or Donna, so if there had been a break in the use of the property, grandfathering status would not be lost.

In any event, there was no break in the use of the property, so Annotation E cannot be taken at face value.  Mike had ceased taking any part in the operation, but Donna had not, and John's own operations on the property continued.  John says that Mike "was the person making the deals for the cars and scrap.....My mechanic friend and I were doing the manual part of the operation.  We have not stopped [] Mike had stopped operation [but] during this time we were on the property doing more than when Mike was with us....  Only Mr. Mercer has discontinued operation.  The storage is still there, the vehicles are still there, and we have been coming and going and doing as before......no interuption....  My mechanic and I rent half of the property and have for many years. Nothing basically changed when Mike was involved in the accident since my mechanic friend and I were doing all of the work anyway. [] The price has slacked off somewhat now and we have not been doing as much, also with the death of Mike but there has been no discontinuance of the operation."

In response to John's long 4:08 fax, Buchan, at 4:49 pm on July 15, sent John an email, copies to Saylor, Corley, & Vlahovich:
   "I would suggest appearing tomorrow at the hearing (1pm) and asking the Hearig Officer if he will hear your testimony regarding the case. It will be important for you to explain that you are not the owner. I don't know whether this will be allowed but in this case it it may be warranted."

This created more confusion about whether John could represent Donna at the hearing, or not.  In the end, John did not attend.  He emailed Buchan early on July 16, the morning of the hearing:
   "I am advised the following.....
   "not to attend the Hearing as Ms Mercer has not dismissed the legal action brought forth on 5/20 with Chris Saylor, zoning enforcement officer.
   "The 40 year use of the property is grandfathered, no question.
   "That the County should withdraw the violation as there is none.
   "It appears that your previous email in which you advised that 'we cannot consider you a representative of the property....... it has to be the owner or legally designated agent, by statute' was correct and that Ms Mercer or her legally designated agent or the representative for planning and zoning are the only ones who can ask for dismissal.
   "the wisdom of my councel is (as mentioned above) no doubt
in his mind that the use of the property is grandfathered.  if the county is unclear about this he will be happy to talk to the County Attorney on the matter. He suggests that Planning and Zoning ask the hearing officer to dismiss the case until a clarification is reached.  If planing and zoning are not willing to do this then I should allow Ms Mercers legal action to continue to resolve the issue.
   "I regret that I will not be in Bisbee today....After your last email I had hoped that I would be able to attend and perhaps add some positive testimony to help resolve the matter.
   "I know that you and Jim will do what you can and appreciate your thoughts and help."

At 7:41 am on July 16, Buchan answered by email:  "Thanks John.  We will relay this info to the Hearing Officer."

Buchan's email implies that she will take John's representations to the Hearing Officer; in short, that John would, by Buchan's work as an intermediary, be representing Donna at the hearing.  Could the situation have been more confusing for John?


VI.  DEFAULT JUDGMENT, AND POSSIBLE RELIEF FROM JUDGMENT

The hearing proceeded as scheduled, at 1 pm on July 16, before Hearing Officer Jack Chapman.

Buchan did, as promised, give Chapman "this info:"  not just John's email of 4:49 pm on July 15, but more.  The order, entitled "Default Order," which Chapman issued at the hearing, noted that "A series of E-mails, dated from June 8, 2009 to July 15, 2009, between John Roberts, Susan Buchan, Donna Mercer and Jim Vlahovich is appended herewith and made a matter of record in this case.  (Exhibit A)".  However, the Default Order mentions only emails, not faxes.  It says nothing about John's faxed "Answer" discussed in Section V.C above.  In any event, even if Buchan gave Chapman both the emails and the fax, it is clear that Chapman did not consider their contents.  Chapman's Default Order found that "The Respondents having failed to appear at the hearing are deemed in default.  Therefore, the allegations of the Complaint are deemed admitted, and this order is issued as written and the parties are so notified."  Financial penalties were ordered as discussed above.

Legally, the judgment appears susceptible to attack in several ways.

Hearing Rule 16(a) says:  "If the defendant fails to appear at the hearing as provided by these rules, the allegations of the Complaint shall be deemed admitted, and the hearing officer shall enter judgment for the County, and impose a civil sanction and report such judgment to the zoning inspector and the defendant."

Under that rule, a hearing officer has no choice.  However, a local rule may be challenged for inconsistency with state law.  The state "law" that may conflict with Hearing Rule 16(a) is Civil Rule 55, a rule that governs default judgment in civil courts.  Civil Rule 55(a) says that "When a party ... has failed to plead or otherwise defend as provided by these Rules, the clerk shall enter that party's default ....  A default shall not become effective if the party ... pleads or otherwise defends as provided by these Rules prior to the expiration of ten (10) days from the filing of the application for entry of default."  Chapman should not have issued default judgment against Donna, because she did "plead or otherwise defend."  The emails are full of negotiations and defenses.

Rule 55(b)(2) adds that when the amount of the judgment is not certain, "no judgment by default shall be entered against an ... incompetent person unless represented in the action by a general guardian, or other such representative who has appeared therein.  If the party against whom judgment by default is sought has appeared ... that party or [her] representative, shall be served with written notice of the application for judgment at least three days prior to the hearing on such application."  The emails which Chapman received set out facts which should have stopped Chapman from peremptorily issuing a "default order."

Rule 55(c) states that "For good cause shown the court may set aside an entry of default and ... may likewise set it aside in accordance with Rule 60(c)," which allows "relief from judgment" based on "(1) mistake, inadvertence, surprise or excusable neglect ...; (3) fraud [or] misconduct of an adverse party; (4) the judgment is void; (5) ... it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief ....  The motion shall be filed within a reasonable time, and for reasons (1) [and] (3) not more than six months after the judgment ...."  Civil Rule 55(c) is consistent with County Rule 18(b):  "At any time the hearing shall set aside a default judgment entered upon failure to appear ... for any other reason where necessary to prevent manifest injustice."

The County's sudden shift about representation the day before the hearing, creating great confusion, may justify vacating the judgment under Civil Rule 55(c)(3).

John's agreement to July 15's surprise statement by the County that he could not represent Donna during the hearing would, if done by a lawyer, constitute ineffective assistance of counsel, which can be a reason for relief under Civil Rule 55(c)(1).  Cannot Donna be granted relief for that mistake by a non-lawyer?

And of course, with the property's use grandfathered, the County had no legal authority to prosecute it as a zoning violation, so relief from judgment is appropriate under Civil Rule 55(c)(4).

An Arizona attorney might discover more grounds for relief.

Donna did not appeal within 10 days, the deadline stated in the forms that the County gave to her.  However, County Rule 18(b), NOT mentioned in the County's forms, says "At any time the hearing shall set aside a default judgment entered upon failure to appear ... for any other reason where necessary to prevent manifest injustice."  The County's conduct in this matter, from beginning to end, is a manifest injustice, for which the legal system does provide remedies.  The County should not force a lawsuit by stubbornly holding on to an unjust result.


VII.  THE DEPARTMENT TURNS TO DISINFORMATION

After the hearing, the situation showed no movement until this writer began talking with the Department about the case.  The Department offered one day of dialogue, then began a campaign of surreptitious disinformation, not just to citizens but even to a County Supervisor.

On September 8, after working a week on understanding the situation, this writer emailed Buchan the following (very similar to the "Digest" that opens this writeup):
    "Good morning, Susan, Mike Jackson here.  I've been in touch with John Roberts, who was working with you and James Vlahovich in the Mike and Donna Mercer case, No. V-09-0120.  The property was grandfathered as a junk yard, and this was always clear during the case; I don't understand why the Department proceeded to take a very punitive judgment against Donna.  I understand that what the County will now do rests with the County Attorney.  I think it would be very nice if the County vacated the judgment, and left the junk yard alone.  Do you think there is any chance of the County doing that?
    "I've put together a long writeup of the entire case, and to explain my viewpoint to you, here's a condensation:
        'Mike and Donna Mercer moved, about 1970, onto 10 acres in Cochise County.  They always used the property as a "collection yard, storage yard, recyling yard" -- what people would call a junk yard.  In 1971, Mike and Donna bought the property via a 15 year mortgage, which they paid off in 1986.
        'The property's mailing address is 328 West Rockspring Lane in Benson, but that's really quite remote, not in Benson.  A map of the route to it is online at
            http://littlebigdog.net/MercerProperty.jpg
and a closeup of the immediate area is online at
            http://littlebigdog.net/MercerCloseup.jpg
(Thanks to Google Maps.)
        'When Mike and Donna moved in, there was no County zoning.  There wasn't even a Planning & Zoning Commission until 1972, nor zoning until 1975.  The property's use is clearly 'grandfathered' under ARS 11-830(A) ('Nothing contained in any [zoning] ordinance authorized by this chapter shall (1) Affect existing uses of property') and County Zoning Regulation 2003.02(A) ('Any ... lawfully existing [land use] prior to January 1, 1975 ... may be continued even though such use does not now conform with these Regulations.')
        'The County long acknowledged the grandfathering.  Mike told his friend John Roberts, who's been part of the operation since the mid-1990s, that soon after zoning was passed, and also in the 1980s, zoning inspectors said the operation was grandfathered.  Mike added that several nearby properties got the same message at the same time.  For about 40 years, the County did not interfere with the use of the property, and the neighbors did not complain.
        'Mike and Donna continued the operation together until 2004.  Then Mike's neck was broken when a truck drove into his car.  After that, Mike lived in a nursing home for years.  A suit for damages dragged on, and Mike finally settled for $25,000.  Mike lived for several more years knowing he was dying; during that time, the $25,000 was spent on things for Donna to use after he died.  On February 3, 2009, Mike died.  Donna now lives on public assistance, about $500 a month.
        'Mike's injury and eventual death did not end the operation.  John Roberts says that after Mike's neck was broken, "[t]he price of scrap vehicles and metal has slacked off somewhat now and we have not been doing as much, also with the death of Mike but there has been no discontinuance of the operation."
        'But, John reports, new neighbors bought the property next door, and reportedly told people they would acquire Mike's property after he died.  Within a month after Mike died, Planning & Zoning began proceeding on a newly filed complaint.
        'Despite the property being grandfathered, the case proceeded to a hearing, where the file was full of evidence about the property's being grandfathered, and negotiations with the Department.  Yet the Department won a judgment which ignored the grandfathering, and said that Donna had not defended herself.
        'The Planning Department also obtained a fine that's substantial, especially for Donna:  $500 if the property was brought into compliance within 30 days after July 16 -- but since Donna didn't do that, $750 plus $50 a day.
        'This widow, for a grandfathered operation in a remote part of the county, is being persecuted by the County, and taken from poverty to pauperism.  Is that the County government we want?'
    "Well, that's the condensation.  Susan, surely the County can do better than it has so far.  Thanks for your consideration."

Buchan's answer arrived about 20 minutes later:
    "Thanks for your message. I agree this is a sad situation. We reviewed our aerial photos from 1996, 2003, then 2008. They show a progression from no junk to increasing 'outdoor storage'. So the existing use is not grandfathered. This went to hearing a little while ago and it was unfortunate that we had repeatedly tried to contact Mrs. Mercer to no avail. John Roberts could only represent her with her permission, as I mentioned earlier, and he could not provide documentation that he had her permission. If we could talk with Mrs. Mercer it would be much easier for us to work towards a reasonable solution, but we can not reach her by phone or mail, and Mr. Roberts indicated he could not contact her either.
    "I'd like very much to work out a compromise, but I really need to talk to the owner of the property. (If you have a method to contact her, I would be most appreciative).

About 6 hours later, still on September 8, this writer replied with a condensation of the points set out at length in Parts I through VI above:
    "Hi, Susan, Mike J. here again, about the Mercer case.
    "Thanks for answering my earlier email so fast.  I'd still like to convince you to work toward vacating the default order.
    "First, as to 'grandfathering,' your email mentions 'aerial photos from 1996, 2003, then 2008 [which] show a progression from no junk to increasing "outdoor storage".'  However, the photos might perhaps be 'read' differently than you read them, and the earlier photo may not show all the activity on the property; John Roberts has suggested several possibilities along these lines, and John remains absolutely adamant that the property use was ongoing at the time of the photos.  Also, in the Department's packet for the hearing, the only photos were taken 'on the ground' in 2009; there's no mention of aerial photos.  There's every reason why any such photos should have been mentioned in the negotiations with John Roberts; the emails show that John was not only emphatic about grandfathering, he even said that Vlahovich personally knew about the use of the property, and Vlahovich never denied this.  It seems to me that the photos can only justify reopening the matter, so that both sides can explain or argue about them, and an impartial Hearing Officer can decide.  But photos produced suddenly, after a judgment, aren't a reason to leave the judgment alone.
    "Second, apart from grandfathering, several points in the County's conduct cast doubt on the justice of Donna Mercer's treatment so far.  Let me list a few from my long writeup:
        "-- Mike Mercer told John Roberts that 'soon' after he moved onto the property, and again in the 1980s, zoning inspectors told him he was grandfathered.
        "-- This property is very remote.  A Google map of the route to it is online at
            http://littlebigdog.net/MercerProperty.jpg
and a Google closeup of the immediate area is online at
            http://littlebigdog.net/MercerCloseup.jpg
The Planning Department employee involved, Chris Saylor, has been perceived as problematic in remote rural areas before.  See the letter posted online at
            http://littlebigdog.net/_EEK2.jpg
and
            http://littlebigdog.net/_EEK3.jpg
When there's a pattern of such perceptions, is the Department going to argue that all the citizens involved are imagining things?
    "-- The record does not show the required service of the Complaint; no service, no jurisdiction.
    "-- Saylor's 'Pre-Hearing Memorandum' doesn't cite regulations with specificity, and doesn't mention grandfathering at all, nor mention any 'aerial photos.'
    "-- The Department negotiated for over a month with John Roberts, who plans to end the use as a 'junk yard.'  Yet less than 24 hours before the hearing, you emailed John that a statute prevented you from considering him as the representative of the property.  However, ARS 11-808(F) and 41-1092.01(D) say otherwise, as does the County's advice in the official papers mailed out on June 9.  Why such a last-minute change of position, which completely threw Donna's representative off balance?
    "-- Your same email also told John that, so close to the hearing, only the Hearing Officer could dismiss or continue the hearing.  Of course, the Hearing Officer controls his own docket, and at all times, not just before a hearing.  But Hearing Rule 4.1 says '[t]he County may request, in writing, that the hearing officer dismiss a Complaint.  All such requests shall be filed prior to the date of hearing.'  When John asked you, you had the right to ask the Hearing Officer to dismiss, but your email to John implied that there was nothing you could do.  That vitiates your present expression of sympathy and regret.
    "-- Late on July 15, John faxed -- not emailed -- you an 'answer to the complaint.'  Early on July 16, you answered 'Thanks John.  We will relay this info to the Hearing Officer.'  However, Hearing Officer Chapman's 'Default Order' did not mention a fax, only emails.  Perhaps he received the fax, and perhaps he had a good reason for not mentioning it.  In any event, Chapman does not appear to have read or considered any of the email or fax material, since it raises grandfathering and other defenses which Chapman ignored in finding Donna in default.  Susan, why didn't the Department speak up at the hearing to educate Chapman about matters which you knew were important?
    "-- The forms which the County provided say that Donna must appeal within 10 days.  However, County Rule 18(b) says 'At any time the hearing shall set aside a default judgment entered upon failure to appear ... for any other reason where necessary to prevent manifest injustice.'  One hopes that the County does not want to litigate whether a citizen is bound by incorrect legal advice from the County.
    "To sum up:  Susan, it seems to me that the right thing is to vacate the judgment.  After that, the County can either let Donna Mercer handle the property as she wishes -- which will end the property use that the County now objects to -- or the County can set another hearing, this time with no confusion about who is allowed to represent Donna, and with evidence including the aerial photos you mentioned, and exhibits and testimony from Vlahovich, Saylor, Roberts, and Donna.  Is there any principled reason why one of these two routes can't be taken?
    "I think you and everybody else want a compromise rather than more litigation, but right now the County has the upper hand, because of the unfair 'default order,' and to show good faith, the County, as the party with the upper hand, should forebear to use its temporary advantage to pressure Donna without regard to the facts.  Can the County -- here & now, that's you, Susan -- take the first step toward a compromise, by vacating the judgment so that the case can go where the evidence leads?
    "Thanks for your consideration."

Buchan never answered that.  The Department turned to a campaign of surreptitious disinformation.

Other people have been contacting Buchan and other County officials about the Mercer case.  Buchan's email answer to one person included "There is a lot more to the Mercer case than I can comment on as I am sure Mrs. Mercer deserves her privacy."  Of course, the bureaucratic answer "I know the facts, more than I am at liberty to say," is commonly recognized as a way to ignore citizen input.

Worse, Buchan is evidently discussing the case when she wants to, and obviously choosing to ignore any facts or law unfavorable to the Department's position.  For instance, one recent email to this writer states in part "this Donna Mercer 'uproar' is all b*******! ... Susan Buchan ... explained it all to me....  What is John Roberts's role in this thing?  He has a long history of [slanders against John deleted] with the county, so why should anyone trust him?  There are aerial photos in the County's possession showing the property virtually free of clutter in '96, and thereafter a growing increase until the present disaster."  This writer's answer included "John has produced [documents] which he could have obtained only from Donna....  They're self-authenticating [and Buchan] had absolutely no response ....  [As to the slanders against John, during] the negotiations between Susan and John, she never hinted anything of the sort.  I've heard about the photos; Susan told me there are three of them, spread out years apart....  John's comments [include] that when business fluctuates, photos taken years apart don't necessarily indicate a straight-line pattern in the years after that.  Moreover, the earliest photo is from 1996 [so] could not show the use of the property before then....  What bothers me most is that Susan wouldn't respond to me when I pointed all these difficulties out, but she's apparently going around repeating what she told me, as if she hadn't been made aware of the difficulties with it."

It's been this writer's observation that in a fight, a guy who starts fighting dirty is a guy who knows he can't win clean.  In this case, the Department has turned from honestly debating the facts and law, to a whispering campaign of gossip that ignores the facts and law.  The Department must know it can't win clean.

With Buchan leaving as Department head, the Department may be reverting to its old ways.  Supervisor Searle is aware of the problem.  On September 24, after another citizen emailed him about the Mercer case, Searle's answer included:  "... I understand your frustration with P&Z.  These types of problems were one of the reasons I originally ran for Supervisor in 2004 and I can tell you that after working on this for 4 years, the solution still evades me.  We have a changed P&Z Director twice in the last four years and are in the process of changing again.  I can tell you that I want to see a director that has management experience and common sense that can make sure that staff follows the rules impartially, fairly, and with common sense awareness of our rural issues. I have not given up on this problem and will continue to work for a solution."

September 24, when Searle wrote the above email, was nine days after Searle received an email from Department employee Rick Corley, purporting to explain the situation.  Here's Corley's entire September 15 email, uninterrupted:
    "The violation was opened on April 2, 2009 from a complaint of a neighbor for property being used to store junk cars, and trash, appliances, tires - most of the 10 acres is involved - the condition has existed for years and continues to grow.  The first inspection was done on April 7th.  The owner Donna Mercer was there and stated that her husband passed away in February and that most of the vehicles belonged to John Roberts.  The Notice of Violation dated April 8th and the Final Notice dated May 1st was sent to Mercer's.  We sent an email to the Health Department and Steve Herbert and Jerry Barker did an inspection and talked to Donna Mercer and stressed that there concern was with her garbage disposal methods and they would periodically monitor the situation.  Donna Mercer made copies of both letters with all  lines cross out through the letters and had them notarized on May 22nd and we received the letters on May 26th.  There was nothing else on the letters.  We send another letter on May 26th that we had received the letters and that if she had any questions to please contact us to discuss the resolution of this matter.  We did not hear anything from Donna Mercer and proceeded to take the case to Hearing.  John Roberts had contacted us about delaying the hearing and that Donna Mercer has not been the same since her husbands death.  We had let John Robert's know that we were beyond the date when this could be dismissed or extended by anyone, and that because he do not own the property we cannot  consider him as the representation of the property-it's illegal, it has to be the owner or a legally designated agent by statue.  There is a an opportunity of things to be worked out in the hearing, but Mrs. Mercer needs to comes to do this.  Anything else is just considered heresay.  We also suggested that John Roberts appear at the hearing and ask the Hearing Officer if he will hear his testimony regarding the case, but explain he is not the owner.  We didn't know whether this would be allowed, but in this case it may be warranted.  John Roberts did not appear at the hearing and we never heard from Donna Mercer.  The case was sent to County Attorney's Office for further action on September 2nd.  Mike Jackson was in the office yesterday and talked to Susan and Chris about this case.  We stated we really need to hear from Donna Mercer or her legal representive for her protection and ours before we can take any other action.  If you have any question please let me know.  Thanks."

Now, here are selections from Corley's September 15 email to Searle, this time with notes by this writer:

"John Roberts had contacted us about delaying the hearing and that Donna Mercer has not been the same since her husbands death.  We had let John Robert's know that we were beyond the date when this could be dismissed or extended by anyone ...."
    NOTE 1:  Corley did not accurately report either the extent or the content of the negotiations with Roberts.  If Searle relied on Corley's statement, Searle would not have a clue as to how long the Department had been negotiating with Roberts, nor would Searle have a clue that Roberts had, over and over, raised the grandfathering issue.
    NOTE 2:  Actually, Hearing Rule 4.1 says "[t]he County may request, in writing, that the hearing officer dismiss a Complaint.  All such requests shall be filed prior to the date of hearing."  Roberts's request was made the day before the date of hearing.  In telling Roberts that the hearing could not be dismissed or extended by anyone, Corley was misstating the law.  On September 1, this writer sent Department Director Buchan an email raising this issue.  No one from the Department ever responded to it, but it's odd that two weeks after the problem was pointed out, an employee directly involved in the matter repeated the incorrect statement to a County Supervisor.

"... and that because he do not own the property we cannot consider him as the representation of the property-it's illegal, it has to be the owner or a legally designated agent by statue."
    NOTE 1:  Corley's language is amazingly like what Buchan emailed to Roberts on July 15:  "because you do not own the property at this time (no matter what the future brings), we cannot consider you as the representative of the the property-it's illegal, it has to be the owner or a legally designated agent, by statute."  That similarity is interesting, because it's not "cut & paste" work; Buchan closed with "statute," while Corley chose "statue."  Perhaps both Buchan and Corley were working from the same master document?
    NOTE 2:  Corley's statement, like Buchan's, contradicts state statutes ARS 11-808(F) and 41-1092.01(D); it also contradicts the County's official advice on papers that are emailed out with all Complaints:  "[y]ou may be represented by counsel or by other designated representative ...."  And when Buchan was asked what statute made Roberts's representation illegal, she could not answer, and the Deputy County Attorney she turned to for guidance said there was no such statute.  All this was pointed out in Part V.B above, and will not be repeated here.  As before, the Department was aware of its error on September 1 -- yet on September 15, Corley repeated the incorrect information to a County Supervisor.

"There is a an opportunity of things to be worked out in the hearing, but Mrs. Mercer needs to comes to do this.  Anything else is just considered heresay."
    NOTE 1:  Again, Corley's language to Searle on September 24 is amazingly similar to Buchan's language to Roberts on July 15:  "I think there is an opportunity for things to wrked out in the hearing, but only if Mrs. Mercer comes in to do this. Anything else is just considered heresay."
    NOTE 2:  It's unclear what Buchan and Corley mean by "heresay."  Hearsay is an out-of-court statement, not under oath, offered as truth.  If Roberts had gone to the hearing, some of his statements might have been hearsay, some not.  It's up to the Hearing Officer to determine what is hearsay.  But what both Buchan and Corley clearly meant to imply to Roberts was that nothing he said at the hearing would matter unless Donna appeared.  There is no basis in law for such an implication.  The County has given another example of what can happen when Department staff give legal advice to citizens who are the Department's opponents in a pending action.

"We also suggested that John Roberts appear at the hearing and ask the Hearing Officer if he will hear his testimony regarding the case, but explain he is not the owner.  We didn't know whether this would be allowed, but in this case it may be warranted."
    NOTE:  Roberts's reaction to this is set out in Part V.C above, and need not be examined in detail here.  He was clearly confused by the Department's sudden switch to refusing to negotiate with him, after weeks of negotiation, and less than a day before the hearing.

"John Roberts did not appear at the hearing and we never heard from Donna Mercer."
    NOTE:  Corley fails to note the deficiencies in process set out in Part VI above, whose discussion will not be repeated here.  Suffice it to say that under generally accepted principles of law, Donna Mercer was NOT in default, but Department employees apparently stood by and let the Hearing Officer enter a "default order" without actually examining the evidence in the file.

"[This writer] was in the office yesterday and talked to Susan and Chris about this case.  We stated we really need to hear from Donna Mercer or her legal representive for her protection and ours before we can take any other action."
    NOTE:  This writer's conversation with Susan Buchan -- Chris Saylor's participation was minimal -- was agreed to be off the record, so that everyone could speak freely.  Corley did not take part in the conversation, though he sporadically hovered a few feet away.  The reader would be correct to assume that any position taken by Buchan, who was speaking for the Department, was opposed by this writer; and vice versa.  Corley's email -- which is, by the way, an example of actual hearsay -- should not be taken to imply this writer's assent to anything Corley says in it.  And, one hopes, the Department Director will teach her subordinates what "off the record" means.

Searle followed up with more emails, and one of Corley's responses came six days later, at 3:43 pm on September 21.  It included "The property was not grandfathered because the junk yard was not there when zoning became effective as we have checked the aerials."
    NOTE:  The earliest of those aerial photos dates from 1996.  Roberts has explained that the amount of "junkyard" storage on the property fluctuates.  A 1996 photo, of an area with fluctuating use, cannot possibly show anything about property use when zoning became effective, over 20 years before -- nor, in fact, at any other time.  Corley's post-hearing "evidence" cannot possibly support his opposition to grandfathering, or the Department's failure to mention the defense of grandfathering at the hearing.  Moreover, if Corley had included the dates of the photos in his email to Searle, Searle must have noticed this.  Perhaps Corley will sometime explain why he omitted the dates in making his argument to Searle.

As mentioned in the Digest above, there are two new documents relevant to the case.

The first document is a Power Of Attorney from Donna Mercer to John Roberts.  Remember, it wasn't until after negotiating with John for weeks that the Department suddenly switched and said that John couldn't represent Donna, with less than 24 hours to go before the hearing, and with the Department knowing that John had no way to communicate with Donna.  The Department set John up.  Part of the Department's surreptitious disinformation campaign is the lack of a Power Of Attorney.  Now that the Department has used that tactic, and John has been able to contact Donna, she has provided one.  It's posted online at
    http://littlebigdog.net/MercerPA1Smudge.jpg
    http://littlebigdog.net/MercerPA2Smudge.jpg
    http://littlebigdog.net/MercerPA3.jpg
There is now no possible excuse for the Department to refuse to deal with John Roberts.  The Department's trumped up excuse is at an end.

The second document is a statement from "Tommy" Thompson that shortly after he went to work for the County in 1973, he bought some car parts from the property, and that at that time "they had lots of old cars, car parts and miscellaneous junk."  That description, written in plain language, shows that the property was a junkyard well before 1975, when county zoning was first passed.  It's posted online at
    http://littlebigdog.net/MercerLetterSmudge.jpg

So when negotiations reopen, the Department won't be able to dodge some uncomfortable realities:  the undisputed grandfathering of the property; Vlahovich's failure to admit the facts when John Roberts contacted him; the Department's bad faith in "setting up" John less than 24 hours before the hearing; the Department's refusal to continue the hearing; and, of special interest to Searle, the Department's misrepresentation of matters to him personally, in the Corley email of September 15.

It is very unlikely that the Department will get away with this latest harassment of a citizen.


LATEST UPDATES, from October 14, 16, and October 19 -- click here

UPDATE from October 14:

On October 13, P&Z head Susan Buchan finally acknowledged seeing the Power Of Attorney. She insisted on receiving it in the form of a fax from John Roberts.  Buchan has not explained why she wouldn't acknowledge the online copy.

Now that P&Z finally acknowledges the Power Of Attorney, P&Z is demanding that John prove grandfathering by a standard of proof never before applied in this case.  Frankly, it looks like P&Z wants to make Searle look bad, by reneging on what it told him.  P&Z's new demand is in an October 8 email from Buchan to Roberts:  "Once we have [a copy of the power of attorney], we will need to discuss the next steps, which may include vacating the default judgment ...."  Of course P&Z must (not "may") vacate the judgment against Donna; the order, and the way that P&Z got it, stink to high heaven.  Beyond that, what strange ideas P&Z has.

P&Z has a strange idea of "burden of proof."  The sentence quoted in the previous paragraph continues "... and allowing you to obtain ... evidence attesting to the existence of the use prior to 1975, or cleaning up the junkyard...."  But John has alreadyi produced sufficient evidence, and P&Z is in no position to demand more evidence from John, until P&Z produces facts to dispute the evidence he's already produced.  P&Z has said (in an email to Searle) that it has a photo disproving grandfathering -- but the email didn't tell Searle that the photo is from 1996; and a photo from one day can't disprove grandfathering from 1970.  The burden is on P&Z to produce some actual evidence to disprove what John has for months been saying about grandfathering.

P&Z has a strange idea of "evidence."  The quoted sentence about evidence includes:  "allowing you to obtain notarized affidavits, documents or evidence attesting to the existence of the use prior to 1975 ...."  Notarized?  That isn't even required in the material that P&Z sends out with complaints.  Suddenly, after acting unfairly during the hearing, and ignoring all of John's statements about grandfathering, P&Z wants proof more formal than the Department requires anywhere else.  P&Z appears to be merely throwing up roadblocks to ending its farce.  Which is more important:  saving face for the Department, or giving justice to Donna Mercer?

P&Z has a strange idea about concluding the case.  The quoted sentence concludes "we will need to discuss the next steps, which may include ... cleaning up the junkyard...."  Why, yes, they may; that was John and Donna's plan all along, as his emails show; but P&Z should have no say about those plans.  John wanted to make P&Z understand that there was no public benefit to pursuing Donna; but P&Z clearly has no jurisdiction over the grandfathered junkyard, and P&Z has no business interfering with it.  What matters is getting P&Z out of Donna Mercer's life.

P&Z has a strange idea of the law.  After the sentence quoted in several pieces above, the October 8 email to John continues:
    "If the use is deemed 'grandfathered' it cannot be expanded beyond 100 percent of its original size in 1975, and does not allow for the indefinite expansion of the grandfathered use.
    "The regulations (Section 2003.04.A.) state:
        "A non-conforming use ... shall not be enlarged, extended, reconstructed or structurally altered unless such enlargement [etc.] conforms with these regulations ... except:
            "1.  That a nonconforming business use may expand if such expansion does not exceed the 100 percent of the area of the original business; ..."

Two things.  First, P&Z says the junkyard "cannot be expanded beyond 100% of its original size in 1975," but the regulation says the "expansion [may] not exceed the 100 percent of the area of the original business."  In other words, the junkyard may double in size; and does P&Z seriously feel that the "size" of a junkyard consists only of the area of the ground actually covered by junk?  Such an interpretation is silly on its face.  The area of the junkyard operation is, and always has been, the entire 10 acres of the lot.

Second, P&Z quotes a county limit on grandfathering, but ignores the statewide affirmation of grandfathering.  ARS 11-830(A)(1) says "Nothing contained in any ordinance authorized by this chapter shall ... [a]ffect existing uses of property or the right to its continued use or the reasonable repair or alteration thereof for the purpose for which used at the time the ordinance affecting the property takes effect."  All of the 10 acres was intended to be, and was always used as, a junkyard.  P&Z is twisting the law -- doing anything to muddy the real issue:  that P&Z knows the property use was grandfathered.


UPDATE from October 16:

This is in response to the latest email from Planning Department head Buchan to John Roberts, in the Donna Mercer case.  Buchan's entire email is at the bottom of this update, and just above it is the email that Buchan was answering.

-- Buchan's first sentence misrepresents what Roberts wrote.  He wrote that he was "having a little trouble understanding the counties reluctance in accepting the grandfathered status of the Mercer property."  Buchan twists that into "you are not understanding what is required for grandfathering."  Buchan's distortion is a bad start to her letter.

-- Buchan's second paragraph opens "First, I have not seen the documentation you gave Supervisor Searle ...."  That's hard to understand, because everything Roberts gave Searle has also been provided to Buchan.

Buchan's next sentence says "if you want me to view a document you should send it to me directly rather than post it to the internet or give it to someone else."  Does Buchan seriously expect people to believe that she doesn't look at the internet and won't even follow links given in emails, so that the only way to get information to her is to copy internet pages whole?

Buchan follows up on her wishes in the last sentence:  "I would really appreciate direct communication."  In reality, Buchan often ignores direct communication.  As noted above, on September 9, after three emails between this writer and Buchan, Buchan cut off correspondence after errors of fact were pointed out in her email.  Later, Buchan made no response at all to emails directly to her from this writer on September 10 and October 6, 12, and 13.  It isn't directness that determines how Buchan answers communications.

-- Buchan's third paragraph is about evidence of grandfathering.  But Roberts already gave ample evidence of grandfathering, in emails to the Department from April to July, which the Department completely ignored (see Part V above).  If Buchan were willing to seriously discuss grandfathering, she should have done so then.  Now that the public is following the case, Buchan may say she wants to discuss grandfathering, but in fact she's inventing insubstantial quibbles to avoid getting the Department off Donna Mercer's back.  If grandfathering is on the table, then the burden of persuasion has shifted to Buchan, for her to disprove the evidence that Roberts has already given.  All she's offered so far is one photo from 1996 -- and that just isn't enough to counter Roberts's evidence, which now includes a statement from Tommy Thompson, Les Thompson's brother, about junkyard use before 1975.

Buchan also argues about how much of the lot was originally used for the junkyard.  Buchan seems to believe that a junkyard is just the area under the items being stored.  In any case, Roberts has explained several times already that the entire lot has always been used as needed.  Buchan is ignoring this evidence, the same way she ignored Roberts's statements about grandfathering in his emails from April to July.

-- Buchan's last paragraph mentions new complaints about the junkyard, and asks Roberts to "not continue to expand the junk yard use until such time as you have had a determination that you are grandfathered and that expansion is allowable.  I'd very much appreciate your cooperation on these very basic requests."  Buchan's question implies that storing more items is the same as expanding the junkyard.  Buchan isn't really asking for "cooperation" about "basic requests," she's trying to slip that implication into the discussion.

-- Buchan's email doesn't look like serious negotiation.

-- To conclude:  On September 23, Supervisor Searle was investigating this case.  He contacted the Planning Department, and perhaps drove to the junkyard.  On October 4 Searle emailed me that "If John Roberts now has a POA this issue should be resolved very quickly. I don't believe he will have any problem getting the use grandfathered in."  That's much like what Searle told this writer on October 6.

Then the Planning Department began backing away, and by October 12 Searle emailed me that "... Roberts should have no problem documenting his grandfathered status and once that has been done, this issue of the fines and existing use should be resolved."  But now the Department is clearly backing away from what Searle expressed less than a week ago.  The Department is spinning cotton-candy objections that were never heard of before.  The Supervisors should do the decent thing and stop the Department's abuse of Donna Mercer.

-- Attachments:

-- -- 1, the email from Roberts which Buchan's latest email answered:
    "I am having a little trouble understanding the counties reluctance in accepting the grandfathered status of the Mercer property.  My understanding after the meeting last Tuesday was that the only hangup was that you needed to see the Power of Attorney from Ms Mercer to me........ this would have been to authenticate the negotiations you, Jim Vlahovich and I had prior to the hearing.....and upon seeing this, the grandfather status was not an issue.
    "Upon hearing this I faxed a copy of the Power of Attorney to you in response to that request. I am assuming you received it altho I have no confirmation from you that you did.
    "Your current email and request for more documents, evidence of the existence of the junk/recycling/storage yard use before 75 is puzzleing.  i provided Richard Searle with a statement, the source of which was emailed to me and to Jim Vlahovich several weeks ago. This should have been adequate proof.  I feel sure your and your superiors recognize this person to be one of the most reputable men in Cochise County. He hired Jim Vlahovich onto the County payroll and I suspect Jim will vouch for his integrity.
    "I assumed you were aware of this statement as Richard informed us that all that was needed to close the matter was a copy of the Power of Attorney allowing me to represent Ms Mercer and once you had this there would be no further problems.
    "So not sure where we are with your email.  As mentioned I have provided the called for Power of Attorney and a statement as to the existence of the junkyard before ordinances in '75.  I need to know why we need to continue this case further.
    It appears that after you spoke with Searle and now with the requested Power of Attorney you should honor the statement supplied and deem the property grandfathered and allow Ms Mercer to get on with her life.  That you vacate the judgement.
    "As mentioned my request that you include Mike Jackson on your CC list was an effort to move things along more expediciously. It would be professional of you and a courtesy to me.
    "Hopefully you will understand that we all want the same thing or Cochise County......for each other and our children.  If we are to accomplish this we must find new and different ways to solve things.  As mentioned to you very early when you took over from Judy.......I am and will be always ......willing to try and solve it.  I hope you will be a part of the equasion."

-- -- 2, Buchan's answer to the above email from Roberts:
    "I'm sorry you are not understanding what is required for grandfathering. We use the same standard fort all citizens, in fact, I am working through this process with another junk yard right now and our procedure is the same.
    "First, I have not seen the documentation you gave Supervisor Searle, so if it is what we need then we may have everything in order for the grandfathering. I do want to stress to you that if you want me to view a document you should send it to me directly rather than post it to the internet or give it to someone else. I would really appreciate direct communication.
    "Second, we have grandfathering affidavit that we use for every case I would be happy to send you several copies if you like. Grandfathering may enable you to legitimize the use, but as I mentioned in my earlier correspondence, there is a limit to the amount of expansion allowed since 1975.
    "I have received several formal complaints from a neighbor in the past two weeks that old cars and a mobile home have been added to the property. Please do not continue to expand the junk yard use until such time as you have had a determination that you are grandfathered and that expansion is allowable. I'd very much appreciate your cooperation on these very basic requests."


UPDATE from October 19

Now Donna Mercer's representative John Roberts has responded to Buchan's recent email, and has also sent around an email about the entire case.

At 11:06 am on Monday, October 19, Roberts responded to Buchan's email.  His format was to quote Buchan's email, then give his own answer in red; I've put his answers in parentheses, but haven't changed a word.  Here's the full text of his response:
    "I'm sorry you are not understanding what is required for grandfathering.  (John's answer:  There were no requirements set forth by you when Jim Vlahovich (who advised you) was advised on the grandfather status when the original complaint was made and a violation notice was sent to Ms Mercer several months ago.)
    "We use the same standard fort all citizens, in fact, I am working through this process with another junk yard right now and our procedure is the same.  (John's answer:  While I would hope the county has the same procedures for all citizens the other matter you advise you are working on may have a much different criteria than Ms Mercers and I would hope that you (the county) would treat each case as an individual matter based on the facts found in each case.
    "First, I have not seen the documentation you gave Supervisor Searle, so if it is what we need then we may have everything in order for the grandfathering. I do want to stress to you that if you want me to view a document you should send it to me directly rather than post it to the internet ... (John's answer:  I did not think it was required for the county (you) to have it if you had seen it (I assumed you had) unless you requested a copy of it...which you did not.  It was posted on the internet so that it would be seen and substantualted by others, familar with the property. As far as giving it to someone else (I am assuming you are referring to Mike Jackson and Richard Searle) I did so to get someone elses reaction besides mine on how to proceed to resolve the issue.  I would have sent the document to you if you had requested it and I thought it were required.)
    "... or give it to someone else. I would really appreciate direct communication.  (John's answer:  You broke off the communication with me after the hearing and with Mike Jackson whom Donna enlisted to try and help solve the case.)
    "Second, we have grandfathering affidavit that we use for every case I would be happy to send you several copies if you like (John's answer:  This as well as any other requirements the County needed or wanted should have been asked for before the hearing when you and I were discussing the matter. My emails and faxes regarding the issue are quite clear.  There is no mention in any of your emails about any requirements.).
    "Grandfathering may enable you to legitimize the use, but as I mentioned in my earlier correspondence, there is a limit to the amount of expansion allowed since 1975.  (John's answer:  This is clearly set out in the ordinances and statutes......Mike Jackson has explained it to us and several other attorneys have explained it to me.  I am told that your interpretation is in error. I would check again with the county attorney on this if you haven't already.)
    "I have received several formal complaints from a neighbor in the past two weeks that old cars and a mobile home have been added to the property.  (John's answer:  This Complaint, originating from the original Complainer resulting in the violation and subsequent default judgement against Ms Mercer is without fact.  It is fabrication and both he and anyone who is aiding him in continually, without sufficient reason, harrassing, slandering and depriving Ms Mercer of the use of her property etc. are likely to find themselves in Superior Court very shortly.....(depriving one of their property rights for an extended period of time is consider a takeing........those guilty of this will be responsible to pay for this))
    "Please do not continue to expand the junk yard use until such time as you have had a determination that you are grandfathered (John's answer:  I have not, I am not expanding the Junk yard....I do not like liers or those who believe them and that expansion is allowable.  There has been no expansion)
    "I'd very much appreciate your cooperation on these very basic requests.  (John's answer:  When the county (you) will answer my questions and show that you are seriously considering resolving the issues.....you will find me more than cooperative  My wish and sincere hope is that it is you and I who resolve this....not the courts..........)"

At 11:08 am, John also sent around his view of the entire case.  (Note:  John tends to use "lots of dots."  To keep the flavor but save a little space, five dots ( ..... ) have been substituted for any long strings of dots in this email.  A few spacings between words have also been fixed.  John's words have not been changed in any way.)
    "I apologize for not getting back to you until now.  Your email came as I was leaving for the weekend and I did not wish to hurry a reply so ..... just getting back to the Mercer situation now .....
    "To answer your question about my dealing direct with you before putting information on the internet or giving it to someone else.  Mike Jackson and Richard Searle are assisting Donna thru me in order to resolve the issue facing both of us.  Their involvement has come about because you rejected my efforts in dealing with you directly to resolve the matter.  You allowed the hearing to go forth unnecessary ending in a default judgment against Ms Mercer.
    "I had emailed when Ms Mercer received the hearing notice and asked that you delay the hearing until such time as I could locate Ms Mercer and resolve it with you directly.  You advised the time had passed to do so and denied me the right to come to Bisbee and assist in resolving the issue.  You did not intervene at the hearing and mention or try to explain any of the circumstances to the hearing officer known to you as a result of emails and faxes I sent before the hearing that could have brought about a delay that would have made it easier for you and I to put the matter to rest.
    "Ms Mercer had asked me to help her which I was then ..... and now still trying to do.
    "I have always asked the opinion of others, Mike Jackson, Richard Searle being no exception that may know more than I or whom I may feel can assist in resolving the problem at hand.  Mike Jackson and Richard Searle are, I feel trying to help us both resolve the matter.  While we all may at times disagree with one another I do think everyone appreciates the others position.
    "I will quote some of Mike Jackson's and Richard Searles observations below and ask that you comment and answer the question asked.
    "1.  you have advised that I am not understanding what is required for grandfathering.
        "I notified the county that the property was grandfathered in an email to Jim Vlahovich, of which a copy was sent to you when Ms Mercer received the first violation notice several months ago.
        "If there were requirements, as you state for grandfathering you should have informed me of this at that time.  You did not.  Please advise me why you did not and have waited until now, several months later?  The only evidence that the
county has given to dispute that original email to Jim Vlahovich is some aerial photo taken in '96.  You advised of this after the hearing.  Again ..... you and Jim Vlahovich were made aware of the Grandfather status after Ms Mercer received the Violation notice, months ago.  Both of you hold positions with the County that would have made you aware of any requirements and I ask again ..... Why didn't you (or Jim) advise of any requirements for Grandfathering when you received my email advising the grandfather status of the property?
    "2.  You state 'I have not seen the document you gave Supervisor Searle.  If you want me to view a document you should send it directly to me rather than post it of give it to someone else.'
        "It was posted to alert others familiar with the situation to come forth and help to establish the Grandfather fact.  Sending it directly to you would not have accomplished that.  The document was given to Supervisor Searle as he has
an interest in helping to resolve the matter and advised he would meet with you in an effort to resolve the matter.  I assumed he would show it to you then and you could make a copy if you required one.  I would have been happy to have given it to you direct if you were still in communication with me but you cut off the communication after the hearing and since you had not responded to several of Mike Jacksons emails I was not sure of your present status since I heard nothing from you, directly since the hearing.
        "Please then advise me as to why you think I should not have given the document which clearly establishes the Grandfathering to Mike Jackson who published it to help further establish the claim or to Supervisor Searle who was to take it to you or whomever was now handling the case and hopefully resolve the issue?  Also please answer why after seeing it posted on the internet or learning that it was there you did not email me and say ..... 'John, I saw the document and the document IS ..... or IS not satisfactory ..... and (if it was satisfactory ..... send me a copy for our files or (or if it wasn't satisfactory) offer to send me ..... such requirements.....at that time?
    "?
    "> 3.  You state 'I would really appreciate direct communication'.  This should be my line ..... You cut off direct communication after the hearing.  Please advise why you did so?  Why you did not at least express your feelings to me ..... those that you expressed to others about 'it being a sad situation and that you hoped a compromise could be reached.'?
    "> 4. I am quoting from Mike Jacksons response to your email regarding the evidence of grandfathering ..... a quote which I agree with.  'Roberts gave ample evidence of grandfathering in emails to the Department from April to July which the Department (you) completely ignored. If the county (you) were willing to seriously discuss grandfathering she (you) should have done so then ..... If grandfathering is on the table, then the burden of persuasion has shifted for her (you) to disprove the evidence that Roberts (me) has already given.'
        "Again, I need you to explain why you did not bring up any requirements for grandfathering in the period from April and July, before the hearing and have waited until now to do so?  Also I need to know why you have not commented on the statement of Tommy Thompson, a well respected long term citizen and county worker that confirms my knowledge that the property was grandfathered?
        "Supervisor Searle who discussed the issue with you had a copy and it was posted on the internet?
    "5.  Your argument about the junkyard not being expanded beyond what existed in '75 is flawed if I am to believe several expert legal opinions on the subject.  You need get advice (or better advice) from the county attorney on this.  I have tried to explain this many times but you have ignored it.
        "Please advise if this is the County attorneys ruling or your own and if yours please check with him.
    "6.  I need not answer your request about cooperation in not expanding the 'Junkyard' (to be known from now on as the 'recycling, storage yard'.  Junk is something ..... not usable ..... trash and debris ..... Websters thought ..... not mine.
        "There has been no expansion and the ongoing ..... new neighbor complaint is fictitious and he is very soon going to find himself in Superior Court, perhaps along with you for slander, harrassment and actions depriving Ms Mercer of her rights and preventing her from using her property.  This constitutes a taking under the law and the one(s) doing the taking must pay her for this.  Again ..... an expert legal opinion on this.
        "It is my thought, as well as others that the taxpayers need not spend money on these frivalous neighbor complaints, most of which (according to the countys own personnel) are unfounded and that come about as a result of unrelated squabbles or of the neighbor either wanting to increase the value of his property or wanting everyone else in the neighbor hood to tailor their property to his.  This is depriving one of their property rights and has been upheld in many states by the courts.
        "To reiterate ..... the complainers statement is false .....  No expansion of the grandfathered property has occurred ..... altho I agree with Mike Jacksons and other council that the whole 10 acres is the 'Recycling, storage yard' ..... not the portion that was occupied in '75.  However ..... a side note ..... I am told ..... 'there was more junk (sorry.....recycling materials) there in '75 than there is now .....  Perhaps an aerial photo dated December 31, 1974 can be found.
    "7.  To quote Mike Jackson 'Supervisor Searle has been investigating the case since September 23 and he contacted the Planning office and perhaps drove to the property shortly thereafter.  He emailed me (Mike Jackson) on October 4th and said 'If John Roberts now has a Power of Attorney from Ms Mercer then the issue should be resolved rather quickly.  I see no problem with the grandfather status.
        "Supervisor Searle emailed again on Oct 12th and said 'Roberts should have no problem documenting his grandfathered status and once that is done, the fines and existing use will be resolved.
        "Supervisor Searle was satisfied that the statement from Tommy Thompson proved the grandfather claim I had made Jim Vlahovich and you aware of after the original violation notice was received.  I need you to answer if Representative Searle misspoke and if so why?  I also need to know if Supervisor Searle was satisfied with the Thompson statement then why weren't you and why did you not make this fact known to him at the time?
        "If Supervisor Searle did not misspeak and you were satisfied as he was with Mr. Thompsons statement then ..... we need close this case!
    "I have answered a few of your questions to me in the text of your email and sending this as another email.
    "I have heard that you may leave the Department and whatever you may think of me I am sincerely regretful of your leaving.  Jim and I talked of your replacing Judy when I was in his office on another matter some years ago and he expressed his endorsement of your ideology and was hopeful that you would be able to bring about some of the beneficial change needed in the rural areas of Cochise County.  All of us have a bigger job ahead of us and I hope that you will continue to help solve the problems that face us all"


VIII.  CONCLUSION:  THE COUNTY SHOULD VACATE THE JUDGMENT

The right thing for the County to do is vacate the judgment and get Donna out from under those punishing fines.  After that, the County can either let Donna Mercer handle the property as she wishes -- which will end the property use that the County now objects to -- or the County can set another hearing, this time with no confusion about who is allowed to represent Donna, with exhibits and testimony from Vlahovich, Saylor, Roberts, Donna, and others.  Is there any principled reason why one of these two routes can't be taken?

The County presently has the upper hand, because of the unfair default order, but the County should not use its temporary advantage to pressure Donna to accept an unjust result.

Will the County take the first step toward a compromise, by vacating the judgment?  That may depend on what the public says.  The County Supervisor for the district is Richard Searle, whose email is
    rsearle@cochise.az.gov
Susan Buchan's email is
    sbuchan@cochise.az.gov
Contact information for more County employees is available at
    http://littlebigdog.net/ccipra.htm