CAVE CREEK – This case dates back to Sept. 14, 2011 when Robert Kerkel was issued a long-form citation by the town for both criminal and civil town code violations associated with his accumulation of enough junk vehicles and junk vehicle parts to completely fill his multi-acre property on East Galvin Street in violation of the town code.
Kerkel’s was the last trial to be held in Cave Creek Municipal Court prior to court consolidation with Carefree.
Following a one-day bench trial in October 2012, 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, 2015.
Any other vehicles, which Kerkel stated included up to 22 vehicles, that did not meet the town code’s definition of “junk motor vehiucle” was ordered moved to either a lawfully permitted enclosed building or an area completely screened from view.
He was given until April 12 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.
However, Weecks suspended all incarceration and fines providing Kerkel successfully complied with her abatement order.
The case was set for compliance review on April 17, 2013.
Kerkel, however, appealed to Maricopa County Superior Court, which affirmed Weecks’ order.
Kerkel asserted during his trial that his non-conforming use of the property began before the town’s incorporation and the use was lawful under then-Maricopa County rules and regulations.
However, testimony during his trial pointed out although he moved on to the property in 1986, he didn’t own the property until 1987, after the town incorporated.
Additionally, the use was also not permitted under county zoning regulations.
Kerkel subsequently appealed the superior court’s judgment.
The court of appeals stated it had jurisdiction but only to the extent Kerkel was challenging the validity of a municipal ordinance.
Kerkel did not appeal his criminal convictions and only challenged the municipal court’s ruling that found him responsible on two of the civil countes: 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.
The court of appeals affirmed the superior court’s judgment, stating, “Because Kerkel was not unconstitutionally disadvantaged by application of an unconstitutional burden of proof, he has not stated a basis for relief.”
Robert Kerkel has since run the gamut of appeals after the Arizona Supreme Court denied his petition for review in May 2016 and his case is now scheduled for sentencing at 10 a.m. on Wednesday, July 27 in the Carefree/Cave Creek Consolidated Court.
The town of Cave Creek appointed former Town Prosecutor Mark Iacovino as a special prosecutor to handle the appeals since he had successfully prosecuted the case at trial.
Iacovino stated, “Bob Kerkel is a good man with a true passion for collecting junk cars and parts in hopes that he, or someone else, will one day restore them. I’m glad that people like Bob are around to preserve automotive history, but he must pursue his hobby in an appropriate, industrial-zoned location. We simply cannot permit someone to maintain a junk yard in a residential neighborhood. That would be horribly unfair to the neighbors.”
