Town Corrupts Board of Adjustment Proceeding

If you think you will get a fair hearing at a Cave Creek Board of Adjustment proceeding you’d better think twice.  The Board of Adjustment in any community is supposed to be an independent quasi-judicial panel of volunteer citizens. Not so in Cave Creek.  In fact, the Town doubled-down to protect two of their own – Councilman Paul Diefenderfer and Director of Zoning Luke Katzman.

In December of 2018 The Town of Cave Creek illegally granted Councilman Paul Diefenderfer a home occupation permit to operate a commercial welding and metal working business in a residential area.  The enterprise is appropriately named Desert Rat Forge as the property consists of stacked red and green used cargo containers plus a couple of tin sheds.  This so called “home occupation” permit was granted without an occupied home on the property, a business license or an appropriate APS electrical hook-up permit.

For more than 8-months Councilman Diefenderfer illegally operated Desert Rat Forge at 7645 East Highland Road.  This business involves welding, torching and grinding metal even during the very dry “Extreme” fire danger season.  That is, until 40 neighbors concerned about the potential for a community-wide wildfire filed a complaint with the Town.  Former Councilwoman Eileen Wright and I visited Town Hall with our concerns only to be stonewalled by newly appointed Director of Zoning Luke Katzman.  It was apparent from the outset that Katzman viewed us as a nuisance.  He rudely dismissed our concerns claiming the Town made no mistakes.  We filed the complaint anyway.  Within a couple of weeks, the Town reluctantly ruled in our favor.  The Councilman’s illegitimate home occupation permit was revoked.

Once again, the zoning administrator tried to cleverly dupe us with the supporting revocation documentation.  Although the permit was technically revoked, Katzman used the supporting documentation to provide the Councilman with a quick and easy path to reapply and obtain another permit.  Given Katzman’s attempt to deceive our neighborhood group, we had no choice but to appeal the Town’s “temporary” decision to the Board of Adjustment.  This involved our group paying a $600 extortion fee to the Town and hiring an attorney in an attempt to make things right.

Once Zoning Director Katzman realized he would be exposed for facilitating Councilman Diefenderfer’s illegal activities he decided to cover his you-know-what.  Without any notice to the public and most certainly with the Town attorney’s direction, Katzman changed the Town’s Home Occupation Permit application requiring more approval signatures and added paragraphs five and six in Section H.  Katzman thought no one would notice.  We did.

 5. A Home Occupation Permit will not be issued until a Principal Use has been established on the parcel. Establishment of a Principal Use is considered established at such time that a Certificate of Occupancy or Certificate of Completion issued by the Building Safety Department is obtained.

6. A Home Occupation Permit shall be subject to revocation if requirements of the Town Code or Zoning Ordinance are not met, including – but not limited to, the keeping of an annual Town of Cave Creek Business License.

The Council appointed Board of Adjustment members acts as the panel of judges. Their decision can only be overruled by the state’s Superior Court.  The posted agenda for the hearing included the three sitting members; Adam White (Chairman), Brian Sirower and Jay Johnson.  What the notice did not include was the inclusion of ad hoc board member and Town Attorney William J. Sims III of the Sims & Mackin Law Firm.  Seated beside the BOA members, attorney Sims controlled the proceedings from the beginning, including a sidebar discussion with Councilman Diefenderfer before the meeting was called to order.

Before we were allowed to present our case, Attorney Sims stated that he was taking the three citizens members of the Board of Adjustment into an (unusual, inappropriate and biased) “executive session.” They left the Council chamber for 15 minutes before allowing us to present our case.  Doubling-down on lawyers and presenting the Town’s defense was the other half Sims & Mackin Law Firm, Kristin Mackin.  If one executive session wasn’t enough, Attorney Sims doubled-down with another to limit the scope of documents and to control the predetermined outcome. Even the City of Phoenix does not go so far as to have an attorney sitting with the board members.  In Phoenix all of the deliberations are transparent and conducted in full view of the public.  Not so in Cave Creek.  Even to the casual observer, the decision had been made in advance of our hearing by Town officials with most of this happening behind closed doors in the (very inappropriate) executive sessions. 

Of course, the end result was that the Town denied our appeal and left in place Councilman Diefenderfer temporary letter of revocation.  Nobody was held accountable at the Town for their part in this malfeasance.  

Today, Councilman Diefenderfer continues to get away with one zoning violation after another without penalty.  For example, Councilman Diefenderfer’s Desert Rat Forge accessory building is in violation (Chapter 2D-1), the ongoing occupancy of his travel trailer is in violation (Chapter 2M-1-b), his junk firetruck is parked in violation (Chapter 2M-1-c) and according to neighbors he continues to operate his business.  Councilman Diefenderfer was allowed to have four vendors on the property and fire-up and use all of his industrial metal working equipment under the umbrella of a Town issued Hidden-In-The-Hills permit.

None of the neighboring communities including Carefree, Scottsdale, Fountain Hills or Phoenix allows a business such as Councilman Paul Diefenderfer’s Desert Rat Forge to operate in a residentially zoned area.  Why does Cave Creek?     

John Hoeppner
Cave Creek