Man who housed Minutemen without permit loses appeal

Published on Thursday, February 14, 2008

BISBEE — The Arizona Appeals Court recently affirmed a decision by the Cochise County Board of Supervisors to fine a man who rented housing to the Minutemen Civil Defense Project without a permit in 2005.

Melvin Harter housed up to 100 Minutemen in dormitories, an RV park and in tents at Miracle Valley Bible College between April 1 and April 26, 2005. He charged them $9,655 for the lodging. He had not obtained county permits for the activities.

Cochise County later cited Harter, alleging that he violated several zoning ordinances by housing the Minutemen on his property without permits. A hearing officer fined him $9,655.

The Board of Supervisors affirmed the hearing officer’s decision. Harter appealed the supervisors’ ruling. The Cochise County Superior Court affirmed the decision in 2006. He then appealed the judgment to Division Two of the Arizona Appeals Court.

Harter argued his activities did not violate any zoning ordinances and that the county’s regulation of his use of his property violated his First Amendment rights. He also asserted the county’s citation was duplicitous and the fines imposed were excessive.

The Arizona Appeals Court affirmed the Superior Court’s judgment, according to a ruling filed Tuesday and signed by Judge J. William Brammer Jr., Chief Judge John Pelander and Presiding Judge Joseph W. Howard.

The property is zoned rural. According to the county’s zoning regulations, principal uses of rural property, including use for church purposes, do not require permits. But special uses, such as RV parks and guest lodging, do require a permit.

“Harter’s housing the Minutemen for a fee at the Bible college dormitories and the RV park, then, appears to fall squarely within the definition of special uses requiring a permit,” the ruling says.

He contended that his use of the Bible college did not constitute guest lodging because the fees he collected only covered the cost of items like utilities, propane and food, and therefore he did not make a profit. The judges ruled it does not matter whether or not he made a profit.

Harter also argued the permits were not required to lodge the Minutemen because the Bible college is an accessory to a church. But the judges determined that the use of the facilities in this case would not fit within the definition of accessory uses.

He contended he was “targeted” by the county. He raised the fact that the county failed to regulate another 30-day revival held in a nearby town. But county officials were unaware of the other revival, so the inconsistency was unintentional, the judges ruled.

Also, he also claims the hearing officer had prior hard feelings for him and that a member of the Board of Supervisors publicly chastised him prior to his citation and later attempted to sit on the board in review of the grievance. But the judges did not address the issue because documents on the matter were not included in the record on appeal.

Harter suggested that by serving the citation on the last day of housing the Minutemen, the county was acting duplicitous. He asserted he should only be fined $750 for one day of violations. He argues it was excessive to fine him $9,655 and an additional $50 for each day the principal remained unpaid after 30 days.

But the judges did not address the issues because Harter did not cite any legal authority in support of his argument. They noted the fine was less than half the maximum allowable by statute.

Herald/Review reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.