Last month, the Free Enterprise Club chronicled the sad story of the Irwin Family, whose backyard swim school was shut down by an unfair and punitive regulatory process in Pinal County.
Following the publishing of the Club’s article, Pinal County has decided to circle the wagons and push a new version of events in order to defend their actions. Specifically, they are making several allegations that are misleading, factually wrong and designed to avoid responsibility for their conduct.
To ensure the true victims in this story are not wronged further by denying the facts of their case, the following is a response to the new claims being made by Pinal County, all of which are corroborated by email correspondence, public records and the minutes taken at the Irwin’s planning and zoning commission meeting (case SUP-007-14).
- Pinal County staff is claiming that the enforcement action was due to “numerous complaints from adjacent residents due to traffic, parking, outdoor storage and noise.” This is factually wrong. In their 10 years of operating a swim school not a single complaint was ever filed against the Irwin’s with the County.
The County’s interest in the case began when a code enforcement officer visited the Irwin’s home on May 10th, 2013 with an advertisement from a Queen Creek summer camp paper. The officer made no reference to complaints filed by neighbors, only that they needed a home occupation permit.
Additionally, the code enforcement officer sent an email to the Irwin’s on June 11th reminding them to “kindly take your (home-based business) application into the Florence office as soon as possible, we can process this and close the case.” The fact that the County never mentions any complaints and was so willing to close the case in a manner favorable to the Irwin’s (following the submission of their application) undermines their new version of events.
- Pinal County is now claiming that, “after their investigation based on neighbor complaints, the Irwin’s were operating a business that would require a Special Use Permit (SUP).” This is factually wrong. According to County staff, this new requirement for the Irwin’s to apply for a SUP was based upon a review of the Irwin’s website, NOT as a result of any nuisance complaints by the neighbors.
This is known to be true because the code enforcement officer sent the following email to the Irwin’s notifying them that the planning manager decided to require that they file for a SUP.
I’m very sorry, but my manager looked at your website, and decided based on the description you have given on the web, your business is a lot more than what a home occupation would allow. In order for you to continue to run your fitness/swimming business out of your home, you will need to apply for a special use permit.
I tried to make the home occupation work, but upon looking at what you are advertising, we decided that your business would much better be suited to a special use permit. I am enclosing a concept review application. You will need to schedule this with the planning department and there is a $200 fee.”
After receiving this email, the Irwin’s decided to pay a $200 SUP applicant fee and participate in a “concept review” meeting on August 20th, 2013 in order to keep their swim school open. After the concept review meeting and paying an additional $500 fee, the Irwin’s received permission from County staff to move forward with the SUP. Not once at the pre-app meeting were any complaints brought up, nor did staff ever mention any issues or concerns related to obtaining the SUP.
- Pinal County is claiming that an ordinance change in 2010 resulted in the decision to deny the SUP by the County. What is omitted by staff is that this concern was never mentioned until the actual P&Z hearing and exposes how unfairly the Irwin’s were treated. According to all correspondence and the minutes from the hearing, County staff personally guided the Irwin’s through the zoning requirements and told them they were eligible for the SUP.
County Planner Ashley MacDonald presented her case at the hearing and stated, “As you know, and as was discussed with the last case, neighborhood commercial up to 20 acres is allowed within this designation.” She further explained the layout of the Irwin’s property and told the commission “that there is sufficient parking according to the zoning regulations.” As for community support for the SUP, the commissioners received 46 letters from neighbors in support of the Irwin’s and 3 letters in opposition.
So, if County staff was on board with the SUP and community support was overwhelming, why didn’t they receive approval? The demise of the Irwin swim school occurred when the County’s legal counsel, Mark Langlitz, declared at the hearing “This is a, using a special use permit as a vehicle to really create a situation of spot zoning. I don’t believe the County has the authority to permit a commercial activity on this site. I think it’s illegal.”
When Sean Irwin challenged Mr. Langlitz on what constitutes a commercial use and thus would result in “spot zoning”, he responded, “commercial use is an activity done for profit for a business, and (inaudible) were going to be teaching swimming or fitness and gaining revenue, that’s a commercial business.” In other words, according the Mr. Langlitz any for profit business that earns revenue at a home is likely illegal.
Recognizing the glaring problems with Mr. Langlitz’ legal opinion, Sean Irwin later inquired, “if I am no longer making a profit and that money is going to drowning preventions, or actually we just don’t charge our people that are coming for the swim lessons – Now would that be no longer commercial, if we’re not making a profit?”
Mr. Langlitz initially responds by conceding if they are not conducting commercial activities, then they don’t need a SUP and states they can withdraw their application (page 155). However, later clarifies, “I think I did mention that one of the factors in looking at if it’s a commercial activity is whether it’s a profit. Nonprofits would also conducting commercial businesses; so it’s – the key is not whether or not it’s for a profit, I just wanted to clarify that (page 160).” We think it’s safe to say, this string of legal reasoning is far from clarifying.
In conclusion, the Irwin’s swim school was shut down by Pinal County as a result of a questionable legal opinion that wasn’t shared with the Irwin’s until the day of the Planning & Zoning Commission hearing. No complaints were ever filed against the swim school with the County, staff recommended approval of the Irwin’s SUP at the pre-application meeting, and supporters of the school at the P&Z hearing outnumbered opponents 15-1.
The Irwin’s didn’t deserve this treatment, and it is unfortunate the County is not using this case as an opportunity to review their internal policies and procedures to avoid harming more businesses, families and neighborhoods in the future. Instead, they are actively working to obscure their conduct and even blame the victims.
Given Pinal County’s unsavory reaction, it is safe to say they have no intention of changing their ways. Ensuring an environment that allows no-impact home-based businesses to operate and thrive is too important of an issue to rely on the self-discipline of cities and counties. Instead, the State Legislature should step up to provide all the state’s home-based businesses more predictability, protections, and an opportunity to prosper.