Fressadi v. Town of Cave Creek

Fressadi filed a lawsuit in 2006 (CV2006-014822) against Keith Vertes and Michael Golec for fraud concerning a Covenant for access and related utilities. Apparently the Town permitted the construction of three houses on adjoining lots to Fressadi’s property using access and utilities from his land in violation of the Zoning Ordinance. Although this lawsuit was set for trial in 2014, Fressadi, who is representing himself and won three appeals, questioned the Court’s jurisdiction because Cave Creek failed to follow ARS 9-500.12. The Court concurred that the Court lacks jurisdiction until Cave Creek holds a hearing pursuant to ARS 9-500.12. Stay tuned.

Fressadi filed two other lawsuits against the Town in 2009, CV2009-050821 and CV2009-050924. Cave Creek was granted summary judgement in CV2009-050821 based on ARS 12-821 and 12-821.01. Fressadi appealed and the Court of Appeals affirmed causing Fressadi to file a Petition for Review to the Supreme Court. CV2009-050924 was dismissed by Judge Budoff, a friend of Mayor Francia’s, because Fressadi failed to attend a pre-trial conference. None of the attorneys for the Defendants disclosed that the three houses in question had no legal or physical access, or that the Town failed to follow ARS 9-500.12 and 9-500.13.

Although Fressadi spells out his claims here, his claims of Cave Creek’s wrongdoing have evolved over the years based on his recent Notice of Claim which was revised on June 30, 2013 and apparently revised again to include negligence per se on August 19, 2013.

As of October 17, 2013, our understanding of Fressadi’s grievances are as follows:

Cave Creek is not a sovereign power. It must comply with all Federal and State laws and can correct mistakes of law at any time. See Thomas and King, Inc. v. City of Phoenix, 92 P. 3d 429 – Ariz: Court of Appeals, 1st Div., Dept. B 2004. Town officials and employees have no immunity to violate the law and can be personally liable for their wrong doings.

According to his Petition, courts have no discretion to allow statutory violations to continue. See Footnote 7, City of Tucson v. Clear Channel Outdoor, Inc., 181 P. 3d 219 – Ariz: Court of Appeals, 2nd Div., Dept. A 2008, (“When a court in equity is confronted on the merits with a continuing violation of statutory law, it has no discretion or authority to balance the equities so as to permit that violation to continue.”) quoting Zygmunt J.B. Plater, Statutory Violations & Equitable Discretion, 70 Cal. L.Rev. 524, 527 (1982). To insure that municipalities comply with the property rights and due process protected by the Constitution, the State legislature enacted A.R.S. §§ 9-500-12 and 9-500.13 because municipalities have no immunity from damages due to their constitutional violations.

It is common knowledge in Cave Creek that Don Sorchych and Usama Abujbarah acted in concert on numerous issues. Don would print slanted opinions or articles in the “official paper” and Usama would manage the Town accordingly, or vice versa.

Fressadi corrected Don Sorchych at a Town Council meeting concerning Southwest Sands to which Don, Usama and their junta were opposed. Shortly thereafter, Cordwell recommended a series of lot splits rather than subdividing his land at the base of Black Mountain. Cordwell’s series of lot splits “down-zoned” the property from 13 lots to 8, but the lot splits were to be more expedient and cost effective.

Fressadi’s engineer submitted a survey to split parcel 211-10-010 into three lots in October, 2001. In order to approve the lot split, the Town required that a 25’ strip of land be omitted from the split but failed to follow A.R.S. §§ 9-500-12 and 9-500.13. In addition, the 25’ strip of land was a fourth lot. In other words, the Town converted his lot split into a subdivision that violated A.R.S. § 9-463 et seq. and the Town’s Subdivision Ordinance. Since the lots did not conform to the Town’s Subdivision Ordinances, the lots were unsuitable for building, and not entitled to permits pursuant to Section 6.3(A) of the Subdivision Ordinance.

But the Town issued building permits to construct two driveways as if the lots were lawful. Usama then promised to reimburse Fressadi to repair and extend the sewer to serve his lots. Mariscal Weeks sent a development agreement to his attorney to use as a template for reimbursement. Cave Creek never reimbursed Fressadi. Instead, they stole (converted) the sewer to the Town’s ownership.

But Cave Creek failed to comply with A.R.S. §§ 9-500-12 and 9-500.13 when it permitted the sewer. The Town required additional easements to permit the sewer and then required the dedication of the fourth lot in order to approve the sewer but once again, Cave Creek failed to follow A.R.S. §§ 9-500-12 and 9-500.13.

Since Cave Creek was so successful in executing their fraudulent scheme converting Fressadi’s parcel into an unlawful subdivision, and since the Town suspected that Fressadi was acting in concert with Vertes to split the adjoining parcel #211-10-003, the Town converted Vertes application for three lots into a subdivision of four lot by requiring another 25’ wide lot in violation of A.R.S. §§ 9-500-12 and 9-500.13. The Town also required these lots to connect to Fressadi’s sewer which was constructed on void permits rendering the improvement ultra vires to which the Town now claims ownership (a Taking) without compensating Fressadi. In other words, the Town violated Fressadi’s property rights AND due process by failing to follow A.R.S. §§ 9-500-12 and 9-500.13. Not only has the Town violated Fressadi’s property rights, but the Town violated Vertes’ property rights and the subsequent buyers of the homes on the 211-10-003 lots as all of those lots are unsuitable for building pursuant to Section 6.3(A) of the Subdivision Ordinance.

The Town’s Subdivision Ordinance is incorporated into the Zoning Ordinance pursuant to Section 1.1B of the Zoning Ordinance. Issuing permits for improvements to lots that are unsuitable for building and not entitled to permits is a violation of the Subdivision and Zoning Ordinance rendering permits void, pursuant to Sections 1.1 and 1.4 of the Zoning Ordinance.

When Fressadi billed the Town for the sewer because Usama reneged on reimbursement, the Town placed Fressadi under criminal investigation for an illegal subdivision and the Sonoran News immediately reported Fressadi’s criminal status on the front page.

Cave Creek issued permits to Vertes, who is not licensed to install sewer line, to extend the sewer outside the easement encroaching on Fressadi’s land. Vertes’ sewer leaked and Fressadi capped it off. When the Town filed a Temporary Restraining Order (TRO) in CV2009-050924, the Sonoran News published the Judge’s remarks, but his comments were so inappropriate, the Judge was removed from the case. The Town obtained a TRO by failing to inform the Court that the lots were not lawful, not entitled to building permits, or that Vertes was not licensed to install the sewer extension. Counsel for Cave Creek also failed to inform the Court that the Town did not comply with A.R.S. §§ 9-500-12 and 9-500.13 when it converted the lot splits in subdivisions or required easements and dedications to take the sewer in violation of A.R.S. § 13-1802. AMRRP provided Jeff Murray to represent Cave Creek.

Since Cave Creek could not tell Fressadi where they would install the sewer extension, Fressadi removed the decorative stacked rocks that ran along his south property line to the adjoining lots. The Town arrested Fressadi for “vandalism” claiming that the decorative rocks on his land were a “retaining wall system” owned by the adjoining lots to support their elevated driveway which violated the Zoning Ordinance. Once again, the Sonoran News published an article casting Fressadi as the villain. The charges were dropped for lack of a case, which the Sonoran News did not report.

The premise for the TRO was occupation of the homes built on lots 211-10-003 A, B & C. But these lots are land locked by lot 211-10-003D and do not comply with the Town’s Subdivision Ordinance. As such, they are not entitled to building permits (Section 6.3).

Rather than correct their mistakes of law for violating state statutes, Cave Creek issued permits to build homes on lots 211-10-003 A, B, & C with access and utilities (sewer) from Fressadi’s property in violation of Section 5.1 of the Zoning Ordinance and Sections 1.1(A)(4), 1.1(B), 6.1 and 6.3 of the Subdivision Ordinance.

Not only were the permits void for lack of access to unlawfully split lots, but the Town permitted excessive lot disturbance and height violations in violation of the zoning ordinance (the gist of Fressadi’s CV2009-050924 complaint). Rather than correct their mistakes, the Town recommended that the property owners obtain variances by blaming Fressadi for causing their excessive lot disturbances. To conceal Cave Creek’s misconduct, Ian Cordwell failed to transmit the “approved” plans with excessive lot disturbance to permit the homes on lots 211-10-003 B & C in violation of Section 2.3(E) of the Zoning Ordinance.

The Sonoran News cast Fressadi in a false light claiming George Ross, a Sorchych sycophant, ran the “Kangaroo Court” with Marine Corps efficiency as the Board of Adjustment violated A.R.S. § 9-462.06(H)(1),(2) and Cordwell violated Section 2.3(D) of the Zoning Ordinance.

Fressadi alleged RICO violations under A.R.S. § 13-2314.04 in a Federal Complaint, which apparently was abandoned to amend CV2006-014822.  Fressadi argues that Usama in concert with others operated Cave Creek as a criminal enterprise to commit theft per A.R.S. § 13-1802 for financial gain in excess of $100,000 pursuant to A.R.S. § 13-2301 et seq. by way of a fraudulent scheme pursuant to A.R.S. § 13-2310. As such, Usama and his co-conspirators which include Mayor Francia, Sorchych, George Ross, Mariscal Weeks, Cordwell, Anderson and others could be convicted and not be eligible for suspension of sentence, probation, pardon or release from incarceration. RICO entitles Fressadi to an award of treble damages against persons but not the Town.

Fressadi’s damages appear to be as follows: Fressadi’s  out of pocket expenses exceed $1 Million before interest which includes $250,000 of attorneys fees before going it alone as a pro se litigator. Fressadi lost a portion of his land through judicial foreclosure which BMO Harris /  M&I Bank valued at ~$360,000, not including the sewer. His investment backed expectations exceeded $5-6 Million. If Fressadi prevails on the RICO claims, then he would collect $15-18 Million and put Usama and others behind bars.

But Fressadi’s big pay off comes from Cave Creek and its state actors violating the Zoning Ordinance. Pursuant to Section 1.7 of the Zoning Ordinance, any person (which includes the Town as a corporate person) who violates any provision of the Zoning Ordinance is guilty of a Class One misdemeanor for each and every day of violation based on the Zoning Ordinance effective at the time of the transgressions.

Cave Creek failed to comply with ARS 9-500.12, 9-500.13 and 9-463 et seq. and created two unlawful subdivisions, issued 13 + permits, and 2 unlawful variances for a total of 17 + violations over a span of twelve years for a total maximum exposure of fines in excess of $1,000,000,000 which grows at a rate of $340,000 per day based on the 2003 Zoning Ordinance.

In 2011, Cave Creek  changed the penalty for violating the zoning ordinance apparently in bad faith because the Town and its state actors were liable for violating its own ordinances. Pursuant to A.R.S. § 9-500.12(H), in addition to awarding attorney fees, “the court may further award damages that are deemed appropriate to compensate the property owner for direct and actual delay damages on a finding that the city or town acted in bad faith.”

Additional evidence of the Town acting in bad faith is the “horse trail” gifted to the Town of Cave Creek by Golec, Vertes / DeSzendeffy as part of a lot split of 211-10-006. The “horse trail” is now a road connecting Mark Way and Military.  Cave Creek tried to pull the same “horse trail” to road scam on Freeman. Apparently this “horse trail” had to be turned into a road to address access issues for the DeVincenzos. Fressadi sold lot 211-10-010C to the DeVincenzos subject to the Covenant which is under litigation in CV2006-014822. Although the Town used the Covenant to permit the homes on lots 211-10-003 A, B, & C, the Covenant was flawed at inception by fraud committed by Keith Vertes, Mike Golec and the Town of Cave Creek. The Covenant was dependent upon the lawfulness of the lot splits which the Town admits were “not legally defined.”

Fressadi offered to settle with the Town for $75 Million based on the 2003 Zoning Ordinance or $12.5 Million plus up-zoning based on the 2011 Zoning Ordinance.

Fressadi concluded his Petition to the Supreme Court that the current rulings amounted to a Judicial Takings. Four Justices of the US Supreme Court wrote a dissenting opinion in Stop the Beach that any branch of government can engage in a Takings. “In sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.” STOP THE BEACH RENOURISHMENT v. FL. DEPT. OF E. P., 08-1151 (U.S. 6-17-2010), 130 S.Ct. 2592, pg 10.  Pursuant to Article 6, Section 26 of Arizona’s Constitution: “Each justice, judge and justice of the peace shall, before entering upon the duties of his office, take and subscribe an oath that he will support the Constitution of the United States and the Constitution of the State of Arizona, and that he will faithfully and impartially discharge the duties of his office to the best of his ability.” Pursuant to 17A A.R.S. Sup.Ct.Rules, Rule 41, Attorneys are required: “To support the constitution and the laws of the United States and of this state.”  Pursuant to 17A A.R.S. Sup.Ct.Rules, Rule 31, the Arizona Supreme Court has jurisdiction over the practice of law in the State of Arizona. It would seem that Cave Creek’s attorneys failed to support the Constitution causing Judges to violate their Oath of Office amounting to a Judicial Taking of Fressadi’s property. Seems plausible.