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Yavapai Free Speech and Association

An Arizona county uses its zoning code to suspend constitutional rights

To many Americans, Arizona is the picture of the Wild West. The Grand Canyon, the towering Saguaro cacti, and the ancient petrified forest all bring to mind a wilderness still waiting to be tamed. That idea of Arizona freedom is what drew Joshua Killeen to return to his home state with his wife Emily. Joshua and Emily moved from California and bought undeveloped desert property in Yavapai County, in the heart of the state, envisioning a modest home for themselves and a rustic wellness and wedding retreat. Their goal was to live and run a business on their own land in harmony with the environment and with a minimum of debt.

However, their entrepreneurial vision ran into the harsh reality of the Yavapai County’s expansive zoning code. While hearty pioneers may have ventured into the American West to carve out a living with few rules or laws to govern them, today building anything bigger than a shed requires complying with extensive red tape.

Naively thinking they could homestead without dozens of government permission slips, Joshua and Emily built their American Dream. But in June 2018, the county told them they were not in code compliance and that they could not open their retreat for events until they acquired the permits. But the county’s punishment didn’t stop there, officials also directed them to pull down any online advertisements saying that their business would be “coming soon” or taking any advanced bookings. The county also banned Joshua and Emily from having friends and neighbors over for yoga and potluck meals, even though those events were free of charge and outside.

Zoning codes often micromanage how Americans can use their property, but they cannot do so in a way that violates the U.S. Constitution, especially one’s constitutional rights to free speech and association. Joshua and Emily have teamed up with the Institute for Justice to protect their right to communicate about their future business and to welcome their friends onto their property for food, fellowship and exercise. Zoning authorities can’t punish violations any way they want. They must follow the Constitution.

Yavapai Free Speech and Association

Date Filed

May 26, 2020

Original Court

U.S. District Court for the District of Arizona

Current Court

U.S. District Court for the District of Arizona

Case Status

Open

Attorneys

Media Contact

  • Andrew Wimer
    Assistant Director of Communications
    awimer@ij.org

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Case Team

Timeline and Case Documents

Joshua and Emily’s Plans for a Desert Retreat

In 2002, 18-year-old Joshua Killeen joined the Army to turn his troubled life around. While serving in Iraq, he took up photography to document his rocket-launcher unit’s activities. After his honorable discharge, he decided to make photography his career.

In 2009, Joshua started his own photography business in San Diego, focusing on events like weddings and family portraits. As his business flourished, he took up yoga for exercise. He met Emily Eller at Sunset Cliffs Yoga, where she was the founder and instructor, and the two fell in love. They decided to build a life together based on sobriety (both had addiction issues in the past), physical and mental wellness, entrepreneurship, self-reliance and environmental stewardship.

By the mid-2010s, it became clear to the couple that purchasing a house in San Diego on the earnings of a photographer and yoga instructor was not a realistic goal. It would require them taking on massive debt, which would put them in a precarious financial position for decades.

So, Joshua and Emily decided to shift gears and look east to Joshua’s native Arizona. They envisioned purchasing inexpensive rural land, building a simple, environmentally sustainable home themselves, and creating an event space for weddings and yoga instruction. Not only did they hope to create a life that would allow them to control their work and finances, but also one where they could hold wellness retreats for those struggling with addiction issues and PTSD, especially veterans.

This vision led them to Yavapai County. In March 2017, they bought 10 remote, undeveloped acres in far northern Yavapai County for $9,000. The property is at the end of a rutted private road and far from neighbors.

Using their savings and income (while avoiding debt), the couple gradually created Ananda Retreat. They built themselves a tiny home roughly 800 square feet in size. They landscaped the property beautifully and built a rustic, solar-powered barn for events. Their dream was becoming a reality.

That’s when Joshua and Emily ran into Yavapai County Development Services’ buzzsaw.

Yavapai’s Zoning Authority Puts Joshua and Emily’s Plans on Hold

Joshua and Emily believed that, like the iconic pioneers of American history, they could acquire undeveloped property in the middle of nowhere and build their homestead on their own terms. They were surprised to learn that their patch of countryside, with dirt and scrub stretching in all directions under the desert’s plateau sky, was subject to hundreds of pages of Yavapai County’s building and zoning regulations.

Their troubles began when Development Services processed an anonymous complaint against them on June 14, 2018. Development Services started an investigation, keeping Joshua and Emily, their property, and their internet presence under regular surveillance for two months between June 27, 2018 and August 21, 2018. During this time, Development Services official Jacob Lane discovered that the couple had not pulled permits for their modest home and barn, and that an archway over the property’s entrance read “Ananda Retreat.” Lane also learned of Joshua and Emily’s “Wellness Wednesday” community events, where they invited neighbors to participate in yoga and vegetarian dinner.

Mr. Lane also saw that Ananda Retreat’s Facebook page advertised “wedding packages and offers a Tipi for a brid[al] room [and] Honeymoon suite.” Joshua and Emily put up the advertising to create public goodwill, identify potential clients, and invite discussions about how to serve those clients in the future.

On June 28, 2018, Mr. Lane sent Joshua and Emily a letter on behalf of Development Services ordering them to upend their lives. Lane’s letter instructed Joshua and Emily to cease activity and restore the land to its original, undeveloped state. Their only other option was to seek “as-built” permits and make modifications to comply with county regulations.

Joshua and Emily were disappointed that the county wouldn’t let them live simply on their own land, but they are making the costly repairs and alterations that Yavapai County has demanded. This effort has been made much more complex, and placed the couple in a much more precarious financial position, because of the economic collapse caused by the pandemic. Joshua’s photography and Emily’s yoga teaching dried up. With their savings depleted, they need to be able to get back to work ASAP. They don’t understand why it is necessary for the county to impose zoning and permitting requirements on their home that resemble big-city regulations. But this case isn’t about specific permitting and zoning rules.

The Zoning Authority’s Assault on Fundamental Rights

While Joshua and Emily have no choice but to bring their buildings into code before they can use them to host paying guests, Development Services overstepped its authority and issued unconstitutional sanctions that violate Joshua and Emily’s fundamental speech and association rights.

After issuing the June 28 letter, Mr. Lane kept tabs on Ananda Retreat’s website. He documented repeated instances in which the website contained “coming soon” advertising for future Ananda Retreat events such as weddings and family portraits. On August 24, Mr. Lane issued a formal notice of violation stating that Plaintiffs were in violation of the Zoning Code.

This notice of violation eventually resulted in a hearing before a Yavapai code official. His order directed Joshua and Emily to bring their property into compliance, which the couple agreed they needed to do. In fact, a few days before the hearing, Joshua and Emily applied for the permits to start making things right.

The constitutional problem is rooted in two other requirements in the official’s order. First, Yavapai County forbade Joshua and Emily from engaging in any commercial speech, which includes “coming soon” advertising for future events that they plan to hold when open to the public. As everyone knows, “coming soon” signs, banners, radio and tv commercials, newspaper ads and internet advertising are common forms of commercial speech. Joshua and Emily have a core free-speech right, one the Supreme Court has recognized since the 1970s, to let the public know that their lawful business will soon be open to the public (as it will be after the permitting issues are cleared up).[1] Over the last 45 years, the Supreme Court has steadily increased protections for commercial speech, which makes Yavapai County’s brazen speech ban all the more extraordinary.[2]

Second, the order forbade Wellness Wednesdays, the free, open-air events that Joshua and Emily, longtime yoga practitioners and vegetarians, hosted on their property. People were invited to bring a potluck vegetarian dish and enjoy dinner, fellowship, and yoga. People have a right to associate on private property for noncommercial activities. To borrow from the Declaration of Independence, this is called the Pursuit of Happiness.

In addition to these two constitutional problems, Yavapai County also possibly violated the Joshua and Emily’s right to equal protection. Not only did the County deprive Joshua and Emily of their speech and association rights, it may have handed out this punishment to them because they are of comparatively modest means and did not have an attorney to represent them at the code proceedings. It is unlikely that Yavapai strips “big fish” of their rights for code violations: If, for example, a county inspector discovered code violations during the construction of a new Home Depot location, Yavapai County would probably not require Home Depot to take down “coming soon” signs or prohibit internet advertising of the new location. But this possible different treatment of otherwise similar speakers—based on nothing more than clout—would violate the right to equal treatment and illustrates how much more difficult it can be for small entrepreneurs to navigate land-use regulations.

The Litigation Team

Joshua and Emily are represented by IJ Senior Attorney Jeff Rowes and IJ Attorney Keith Diggs.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty. Since 1991, IJ has worked to protect property rights and the right to earn an honest living. IJ’s defense of Joshua and Emily is part of our larger campaign to ensure that code enforcement remains within constitutional boundaries. IJ has fought local governments that used their zoning codes to stop residents in Miami Shores from growing vegetables in their front yard, shut down a home recording studio in Nashville, and prevented an Akron man from helping the homeless.

 

[1] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (recognizing advertising as a form of speech protected by the First Amendment).  

[2] See Central Hudson Gas & Elec. Corp. v. New York Public Service Comm’n, 447 U.S. 557 (1980) (establishing the test the government must satisfy to restrict advertising, which federal courts have vigorously applied since).

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