CAVE CREEK – Robert Kerkel appeared before Carefree/Cave Creek Consolidated Court Judge Stephanie Olohan on Jan. 11 for a compliance review hearing and after much discussion and doubt was granted a 30-day extension to come into full compliance with an order issued.
Following a one-day bench trial in October 2012, the last trial to be held in Cave Creek Municipal Court prior to court consolidation with Carefree, Cave Creek Judge Pro-Tem Deborah Weecks found Kerkel guilty of two misdemeanor criminal counts of depositing litter on private property and failing to maintain the property free of litter, and responsible for three civil violations.
Weecks ordered Kerkel to abate the litter, junk motor vehicle storage, nuisance, and maintenance of a non-permitted use of property.
Kerkel was given until close of business on Friday, Jan. 11, 2013 to have all the non-vehicular matter removed or properly stored.
Weecks made it clear her reading of section 92.03 did not permit litter to be kept indefinitely so long as said litter is stored in suitable containers and stated, “Rather, the logical meaning in the context of the city code is that litter is kept in containers and disposed of in due course.”
Her order, required vehicles not fully intact and operational to be removed no later than March 15, 2013 and any other vehicle that was not listed that might be on the property in a wrecked, dismantled, or partially dismantled or otherwise inoperable form, to also be removed by March 15, 2013.
Any other vehicles, which Kerkel stated included up to 22 vehicles, that did not meet the town code’s definition of “junk motor vehicle,” were ordered moved to either a lawfully permitted enclosed building or an area completely screened from view.
He was given until April 12, 2013 to comply with that and other parts of the order.
Weecks further imposed a condition of probation for up to two years to end promptly two years after the court finds him in full compliance.
He was sentenced to 30 days incarceration for each of the two criminal counts to be served concurrently and criminal penalties of $2,500 for each criminal count and civil penalties of $250, $500 and $250 for each of the respective civil violations. The sentence was to be suspended once he complied with all conditions of her order.
Kerkel’s sentence was stayed while he unsuccessfully appealed two of the civil counts, Junk motor vehicle storage and maintaining a non-permitted use of property, claiming the court erred by requiring him to prove his nonconforming use defense that he said imposed an unconstitutional burden of proof.
Time ticked on as Kerkel appealed to the Arizona Supreme Court, which denied his petition for review in May 2016.
He appeared before Olohan on July 27, 2016, who, without legal authority to do anything else, updated the compliance dates.
When Kerkel, representing himself, Special Prosecutor Mark Iacovino and Town Marshal Adam Stein appeared in court on Jan. 11, 2017, Olohan stated, “This case was set for 10 a.m. It’s 11:40. Why weren’t you here?”
Iacovino stated the minute entry stated the time as 11:30 a.m.
Olohan, as she looked through the case documents, said she now saw that.
Sumarizing the events since the last hearing, Olohan said Kerkel had filed for an extension to comply with some of the terms of the sentence which had an original deadline of Nov. 7, 2016 and a compliance review set for Dec. 14.
However, she noted, “None of the parties appeared.”
She acknowledged receiving a motion to continue, which was granted.
Iacovino said the Stein inspected the property on Jan. 6 and submitted Stein’s photos and a report of his findings to the court.
Iacovino said, “The bottom line is, Mr. Kerkel has made significant progress toward compliance but he’s not in compliance.”
He stated Kerkel had a total of 36 vehicles on his property, 20 of which were unregistered, many of which were inoperable and there was still some debris on the property.
Iacovino said the second page of Weecks’ sentencing order was very generous by allowing Kerkel to have up to 22 vehicles on his property, providing they were completely screened from view.
Olohan, reviewing the order, said Kerkel was ordered to remove all non-vehicular matter in its entirety or ensure it was properly stored in containers.
She asked if the fencing on the property had been restored.
Icovino said that portion of the order was in compliance.
Olohan reviewed Stein’s report and asked if Zeita Pochos, Kerkel’s next-door neighbor was present.
Iacovino said she was notified of the hearing date but was not present.
Pochos originally filed a complaint with the town about Kerkel’s ever-expanding collection of junk vehicles and parts on his property in 1990.
The case was successfully prosecuted and the town won on appeal. However, when the case was remanded back to the town for sentencing, for some reason it was referred to the town’s civil attorney instead of former Town Prosecutor Mark Iacovino and slipped through the cracks without any resolution.
As time went on, things only got worse with hoards of pack rats taking up residency in the junk vehicles which in turn drew packs of coyotes to the neighborhood, endangering neighborhood pets.
Pochos subsequently filed a new complaint in September 2011, which was the case before Olohan.
Kerkel claimed Weecks’ instructions during the sentencing hearing allowed for 22 vehicles to be stored out of view but she didn’t care about his regular vehicles that he drives.
He told Olohan that all the other cars on his property were operable and he drove them all in.
However, he said the batteries were now dead and the fuel has gone bad but they would all be restored.
Olohan stopped Kerkel and said the order specifically states the 22 vehicles must be enclosed.
Kerkel said, “Let’s just say for the sake of argument, 14 of those vehicles are running, licensed and operable.”
Olohan responded, “I don’t want to talk about for the sake of argument. I don’t want to talk about hypotheticals. I’m told by this report there are 36 vehicles stored all over the property. I’m told you have done some cleaning up but you are not in compliance.”
Kerkel argued his entire property is screened from view from anywhere outside of his property, which he said is on a private road.
Olohan asked Kerkel if there was anything else he wanted to address.
Kerkel said when he got out of surgery in August he contacted Stein to ask if he would receive any help from the town and noted the order stated the town should not reasonably deny assistance.
He said he received no help from the town.
Iacovino said he recalled a general request but no specific requests for assistance.
He said he and Stein went to the property to meet with Kerkel in September or October and Kerkel told them what his plan was to come into compliance.
Iacovino noted there are a number of vehicles parked out front, and he didn’t believe Weecks expected six to eight cars.
He said she spoke of an everyday vehicle.
Iacovino stated the vehicles in the back are screened from view at ground level but the neighbor’s home next door is two stories and several vehicles were parked out front.
Olohan stated picture after picture showed cars were randomly parked all over the property.
Stein said, “Mr. Kerkel does have a tremendous car collection.”
Reviewing the photographs, Olohan stated she still sees debris and asked Iacovino if he would say it’s minimal.
Iacovino replied, “No,” and stated, “We would not say he’s in compliance.”
Kerkel claimed some of what was being referred to as debris included fencing and building materials.
Olohan stated, “You claim it is all useful, but any reasonable person would say it’s debris.”
She asked Kerkel, “Is it your position you are in compliance or is it your position you’ve come a long way but still need to do more work?”
Kerkel said it was not a static display and it is all contained on his property.
Olohan asked, “Wasn’t all of this contained on your property when all this started?”
She revisited Weecks’ order and read the section requiring all the vehicles be in an enclosed building or completely screened from view.
Olohan stated, “It is not completely out of view.”
Kerkel argued it was only visible from his property and he couldn’t build a 30-foot high fence due to zoning ordinances.
Iacovino said there was only one way to reasonably read Weecks’ order, “He may have 22 operable vehicles and they must be completely screened from view. All other vehicles must go.”
Olohan reminded Kerkel he signed the probation order indicating he understood the conditions and failure to comply meant he would have to pay $6,000 in fines and serve 30 days in jail.
She said all she was hearing Kerkel tell the court was that he’s in compliance.
Olohan said no reasonable person or the court would find him to be in compliance at this time.
She explained to Kerkel, “The problem is, you still have 36 vehicles and there is still debris out there. All the state and court want is compliance. You contend you’re in compliance.”
Kerkel began talking about what the court said in 1989 when Olohan cut him off and said, “We’re not talking about 1989. We’re talking about the sentence in 2011.”
Kerkel claimed it was because he never received the slightest bit of assistance from Stein.
Olohan asked what Kerkel specifically asked Stein to help him with.
Iacovino stated when he and Stein visited him, Kerkel said he had a plan in place to sell vehicles and hire help to remove the debris.
Olohan noted when Kerkel requested an extension in August he did not note any request for assistance and the court granted an extension.
Olohan stated the town would not be able to help him sell vehicles.
Kerkel said he told Stein and Iacovino he needed labor crew and a truck crew but they ignored him.
Olohan said the court’s ultimate goal is for Kerkel to come into compliance and asked if the parties could come together to see that happen.
Iacovino said he doesn’t believe the town is in a position to offer assistance.
Reading from the order, Olohan said any costs associated with the town providing assistance would be passed along to Kerkel.
She asked Kerkel, “Is it your position the town would call to hire a crew and then charge you? Why could you not call and schedule a crew?”
Olohan stated the only options at her disposal are jail and $6,000 in fines or a short extension.
She asked Kerkel if it was his intent if she extended the deadline 30 days to come into compliance as the court reads the order.
Iacovino stated, “It is clear Mr. Kerkel has a very self-serving interpretation of the order and he has no intention of coming into compliance.”
Olohan stated, “I’m at a loss at this point. The order is abundantly clear to me … up to 22 vehicles, must be operable. You’re not in compliance with the number of vehicles and there is still debris on your property. You believe you are in compliance. The issue at hand is you are still not in compliance. It’s very difficult to believe you will come into compliance from everything you’ve said during this sentencing review hearing. What I’ve heard from you today is you are in compliance and we need to expand our horizons.
“I’m hesitant to give a 30-day extension. Will you get down to 22 cars?
“Are you going to bring your property into compliance if I give you a short extension?”
Kerkel stated, “Just to clarify – When I drive my car home from the grocery store, I cannot park it in my driveway?”
Olohan replied, “The court is not saying that. Are you going to avow to the court that you are going to bring this property into compliance?”
Kerkel replied, “Yes.”
Olohan stated, if, in approximately 30 days, Kerkel is not found to be in full compliance she would have no choice other than to sign his commitment order and impose the $6,000 fine.
Kerkel asked if his Express passenger bus counted as one of the 22 vehicles.
Olohan stated it would.
Kerkel said it would be very hard to screen and contrary to Stein’s report that said it appeared inoperable, “you can turn the key and it starts right up.”
Stein said the reason he said it appeared inoperable was because it had expired Colorado license plates and was filled with debris.
She set the deadline for Stein to inspect the property on Friday, Feb. 10 and set the compliance review hearing for 11 a.m. on Feb. 15.
Kerkel asked, “Not to beat a dead horse, but Marshal Stein saying the Express bus was partially screened by bushes, is that in compliance?”
Olohan deferred to Stein and Iacovino and stated, “Then again, it may be a vehicle you wish to house somewhere else.”
Stein responded it was “not completely screened from view.”
Olohan told Kerkel, “You can have your position and don’t have to agree with the court but you must come into compliance with the order.”
