Tuesday, May 26, 2020

County Threatens Fines, Demands Expensive Alterations From Arizona Couple Hosting Free Yoga Classes and Potlucks on Their Property

By Christian Britschgi - May 26, 2020 at 01:10PM

Joshua and Emily Killeen left San Diego, California, looking for two things they couldn't find in Southern California: cheap land and lax regulation. Both were necessary for the married couple's dream of starting a wedding venue and yoga retreat.

"Her dream of opening a yoga studio and holding retreats, and my dream of opening a wedding venue go hand in hand," Joshua Killeen, a military veteran and wedding videographer who was introduced to yoga through his wife, tells Reason. "We're both sober so we wanted it to be a space where people can enjoy events and fun times that aren't catered around alcoholic substances."

Finding a property that was both affordable to the couple and zoned for what they were looking to do proved near-impossible in San Diego. So when a family member offered to sell them a rural property in Yavapai County, Arizona, the Killeens jumped at the opportunity.

They purchased the land and then set about building a tiny home and a barn that would serve as an event space for their eventual retreat. The two designed it all to be off-grid, sustained by solar power and rainwater—the perfect setup for the wellness-centered life and business they hoped to build out in the desert.

Or so they thought.

Soon after constructing improvements on the property, Yavapai County officials informed the couple that their buildings violated the county's zoning code and that they'd either have to pay for permits and perform extensive renovations or tear everything down and vacate the property.

When the couple started to advertise their forthcoming wedding business and take deposits on future events to finance these alternations, the county again threatened them with fines and potentially even the demolition of their home and barn. It also told them to stop holding free community events on their property.

With no other way to raise money for the required renovations and unwilling to abandon their dream, the couple decided to sue. Today, they filed a lawsuit in the U.S District Court for the District of Arizona arguing that the restrictions imposed on their ability to advertise and hold free events amount to a violation of their First Amendment right to free speech.

"There is nothing in Yavapai County's code that would authorize the government to restrict people's speech as a condition of code compliance violations, or to incentivize them to comply more quickly in the future. That's just not on the table," says Jeff Rowes, an attorney with the Institute for Justice, which is representing the Killeens. "[County officials] were doing something they weren't supposed to be doing—and even worse, what they were doing violated the Constitution."

Rowes concedes, as does Joshua Killeen, that the initial improvements the couple made on their property required permits the two hadn't obtained.

When the couple bought the 20-acre property in 2017, they believed the parcels they were purchasing were zoned as rural land and therefore didn't require permits for buildings under a certain square footage.

In fact, the county had zoned all the unincorporated parts of Yavapai County to be rural-residential, meaning that the two would need permits for any structure larger than a shed, plus a special conditional use permit to operate a business there.

This information wasn't secret, but it also wasn't obvious or even readily apparent when they bought the land. Joshua Killeen says the person they purchased the property from had misinformed them about its zoning designation. The land they bought is pretty isolated, too, and far removed from anything that might suggest it was considered residential on paper.

"You can't even throw a rock and hit our neighbor's property," says Joshua Killeen.

After buying the property, the Killeens went about building a small 800-square-foot home (plus a septic tank) and a barn they could use as an events space for their eventual wedding venue, all without pulling any permits.

Their trouble started in late June 2018, when Jacob Lane, a code enforcement officer with Yavapai County Development Services, scoped out the property in response to an anonymous complaint, spotting a number of structures on what should, according to county records, be vacant land.

He also spotted an archway bearing the words "Ananda Retreat," the name of the Killeens' business. Searching the internet for that name, he found a Facebook page and website the couple had set up to advertise their forthcoming retreat, as well as a phone number for Joshua Killeen.

Lane called Joshua Killeen that day to inform him that he would need permits for the structures on his property, and advised him to get in touch with another person at Development Services to bring his property into compliance.

In August, the Killeens met with Development Services personnel who told them that they would need to make a number of renovations to their property in order for it to be fully compliant with local regulations.

This included building a privacy fence around their isolated property, adding a commercial fire suppression system to their barn, despite them not doing any cooking or having open flames in it, and building wheelchair paths that complied with the Americans with Disabilities Act. (The demand that they build a privacy fence was later dropped.)

Joshua Killeen says that many of these proposed alternations didn't make sense for their rural property, and conflicted with their vision of living humbly and off the grid. (The required commercial fire suppression rig they were required to get wasn't going to work with the couple's rain catchment system, for instance.) The alterations were also slated to be quite pricey.

"Just getting any heavy machinery out here is very, very expensive. We're not a corporation. We're a family using our savings to start a business," says Joshua Killeen. The wheelchair paths and fire suppression system, he estimates, would cost $50,000-70,000 to build. That would be in addition to $11,000 in permitting fees the county was requiring.

Nevertheless, he and his wife agreed to bring their property into compliance. To raise money for all the county-demanded fixes, the two started advertising, and taking deposits for, future wedding bookings.

During this time, the Killeens also started hosting "Wellness Wednesday" events on their property, which included a free yoga class, vegetarian potluck, and yard games for community members.

Their ads proved successful enough, Killeen says, that their business received around 100 inquiries within three months. People loved the potlucks too, with about 30 community members showing up each week.

"It was for the community to get together, and for us to bring yoga and wellness to a community that didn't have anything like this," he says. "We had 60-year-old men who never practiced yoga before and were living out in the woods, we had them coming to every single one of our classes because it made them feel so good and so healthy."

Development Services was less pleased.

County records show that officials kept a close eye on the weekly Facebook posts the Killeens made advertising their services and community events. Finally, in late August, Lane returned to the couple's property to serve them with a Notice of Violation.

Joshua Killeen says one day he returned home only to find a white pickup truck with a Yavapai County seal on the side blocking the entrance to his property. Inside was Lane who reportedly refused to let him onto the property, asked him to get out of his vehicle, and demanded to know his name.

"He didn't announce who he was, he didn't announce what he was doing. He just shoved some papers in my face and said you have a hearing coming up," says Joshua Killeen.

That hearing occurred in September, where officials made clear that until the Killeens brought their property into full compliance with the county's zoning code, they needed to stop advertising their upcoming business, and stop holding any sort of public events (even free ones) on their property.

"They had printouts of our Facebook pages like they were criminal evidence," Joshua Killeen says. "They made it seem like we were trying to hurt people. It was very bad, very humiliating."

But when faced with the prospect of fines or having to demolish their home and barn, the Killeens agreed to comply with the county's orders to stop advertising or holding events.

A judgment issued against the two by Yavapai County in November 2018 explicitly forbids the couple from hosting weddings, group photography, yoga classes, "wellness clinics," or even potlucks on their property until they've secured all the necessary permits.

The forced cancellation of their weekly yoga class and potluck was a real let-down for the couple, and for many former attendees, says Killeen.

"When we had to cancel the 'Wellness Wednesdays,' everybody was very sad," says Killeen. "For the first six months, whenever we'd see people in town when we went to run errands or sometimes randomly, they'd reach out to ask when classes are going to pick up again."

The Killeens were initially given until March 2019 to come into compliance with all the county's zoning code requirements. They eventually received a conditional use permit for their business in April of that year. The county also granted them a number of extensions on the deadline for bringing the property into compliance.

Rowes, their attorney, says that during this time, the two tried to finance all the alterations they needed to make by plying their trades as a yoga instructor and wedding photographer off-property. The COVID-19 pandemic has effectively shut off their opportunity to do that, however, making their ability to advertise and book future events crucial to getting their business up and running.

In addition to being a bummer for the community, and a detriment to their business, the county's decision to force the couple to stop advertising and hosting events on their property is unconstitutional, says Rowes.

"The only kind of commercial speech the government can suppress is businesses that are inherently illegal, not just you can't lawfully open right now," says Rowes. "Here, it's not that Joshua and Emily's business is inherently illegal. It's OK to have wedding venues."

The fact that they still have outstanding code violations that need to be remedied is not an excuse for restricting the Killeens' First Amendment-protected speech, he says.

In addition to this free speech claim, the lawsuit filed by the Institute for Justice argues that the county's restrictions on their ability to hold free community events violate the protections of the Due Process Clause of the 14th Amendment.

Their complaint asks that the county's restrictions on advertising and hosting events be lifted, and that the county pay the Killeens nominal damages of $10.

Killeen says the lawsuit he and his wife have filed is also about protecting a vision and a lifestyle they had hoped becoming rural landowners would enable them to enjoy.

"The ability to live within our means without going tens and thousands of dollars in debt, by living the way we want to live in a more simple, sustainable fashion, are rights and liberties that we should be able to appreciate and enjoy," he says.


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