History

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In 1968 and 1969, retired U.S. Army Master Sergeant Vernon L Curd purchased two adjoining parcels of land totaling approximately 3.32 acres just outside the city limits of Searcy, Arkansas and began using them as one property. While the western parcel was unimproved, there was a single-family detached home on the eastern parcel. In 1969 and 1970, a pond was constructed on the property, bridging the parcels, and a small garden was started. In 1970 and 1971, the majority of the land not dedicated to the home, yard, pond, and garden was laid out into 17 sites for suitable for mobile homes or efficiency-style single-family detached homes. In 1971 and 1972, the land was substantially constructed into these sites, prior to its 1972 annexation into the City of Searcy. The land always saw use as a single property under one ownership, and, though a business known as Curd Trailer Park / Curd Trailer & RV Park was operated on the property, the land was never dedicated entirely to use as a mobile home park. Sergeant Curd always maintained that he had built the property out as a development/subdivision for mixed use. Over the years, the garden was eliminated, the pond was filled in, and additional sites were added, 12 of which saw use as RV spaces and sites for portable efficiency units commonly referred to in recent popular culture as “tiny homes”. The original single-family detached home remained and was eventually raised and replaced with a new single-family detached home. It was always the position of the Curd family that the property was a mixed-use development prior to its annexation, and there are efficiency-style single-family detached homes on the primary home site, lot L, and lot 4, and a workshop with living quarters designed into it was constructed on lot M. The property is served by a quality and well-maintained gravel private drive with no curbs or gutters, which has never been dedicated to the City. It sits on a gently sloping hillside, and most of the sites are terraced. The property is connected to City water and sewer service and is served by natural gas, electricity, land line phone, and cable TV as well. The property is very well screened off from view from the nearest city street, Holmes Road.

In 1995, Vernon Curd unsuccessfully sued the City in U.S. District Court in an attempt to force it to extend city sewer service to his property, which had been annexed in 1972. Another unsuccessful suit for damages under 42 USC § 1983, in which Curd was represented by counsel and joined by several of his neighbors, followed. This was the beginning of what appears to be a long-standing animosity on the part of the City against the Curd family.

Through the years, the business continued to operate on the property, managed by Vernon Curd into the 1980s. The business was managed by his daughter Shirley Curd from the mid-1980s to 2009, when the management duties were divided between Shirley Curd and her son, David Brennan. The business has been managed solely by Brennan since 2013. With the passing of Vernon L Curd in 2010, Maxine H. Curd has been and remains the sole surviving trustee of the Vernon L. and Maxine H. Curd Family Trust, which holds the property. The property will transfer to Shirley Curd on the passing of Maxine if not transferred before. The business had been owned by Maxine Curd as a sole proprietorship since Sergeant Curd's passing. She rented only the sites, with Shirley Curd renting several sites from her for mobile homes she owned and rented out.

Over the years, the City and the Curd Family have continually been at odds over the interpretation and application of Ark. Code Ann. § 18-16-108 (the landlord lien statute). When the business took a mobile home valued at $3,000 that was legally abandoned under that statute, the former owners of the mobile home and Searcy City Attorney Buck Gibson sought a prosecution for felony theft of property by then Prosecuting Attorney Chris Raff. He told them he would not prosecute because the Curds had done nothing illegal. Raff had informed both Gibson and then Municipal Judge Phil Shoffner of his opinion that the Curds had merely exercised their rights under the statute. Gibson then chose to proceed with a misdemeanor prosecution, even though he knew full well the value made the claimed theft a felony and outside his jurisdiction and that of the Municipal Court. Judge Shoffner was on board. At trial, it became clear that the Curds would not prevail on the law. Judge Shoffner spun an incredibly strained and flawed legal theory that, wholly without legal support, differentiated a month-to-month tenancy as not being a lease under the statute. Brennan then instructed attorney Jim Petty to re-call the owner and inquire as to the value of the mobile home. Judge Shoffner was forced to dismiss the case for lack of jurisdiction, which clearly angered both him and Gibson. Based on this unlawful and malicious prosecution, the Curds could have sued the City and Gibson in federal court, but they chose not to.

Subsequently the City and the Curds have continued to be at odds over the landlord lien statute, with law enforcement even threatening to arrest Brennan for preventing former tenants from removing property upon which the business had a statutory landlord's lien and which was legally abandoned under the statute. Brennan complied with the orders of the Searcy Police, but, in hindsight, he wishes he had let them arrest him and then sued for the illegal arrest. The entire City establishment has grown to regard themselves as rulers over subjects rather than public servants to sovereign citizens.

Though the language of Ark. Code Ann. § 18-16-108 is clear and unambiguous, there has never been a municipal or district court judge in this town who interpreted it according to its clear language where the Curd family was involved. In no case have they held that the statute means what it says. In the most recent case where the business had disposed of property deemed abandoned under the statute, District Judge Mark Pate attempted to apply a statute that had been repealed years earlier during the time when he had served in the legislature and on the Code Revision Commission. When Brennan pointed this out, Judge Pate stated that it was still in his law books and that he would have to check. Either his law books were woefully out of date and he did not do electronic legal research, or he was grasping for a way to rule against the Curd family. His course was then to simply ignore Ark. Code Ann. § 18-16-108 as if it didn't exist then issue a $12,000+ judgment against the business and Shirley Curd WITHOUT A TRIAL. The plaintiff was not required to prove a thing. Brennan and Curd were expecting and waiting on a trial to be scheduled when a copy of the judgment came in the mail. They had to appeal to Circuit Court and get the judgment reversed. Because he had deliberately ignored the law and rendered a judgment without trial, Brennan filed a complaint against Pate with the Arkansas Judicial Discipline and Disability Committee, which amazingly cleared this terrible judge. Remember District Judge Mark Pate. You will see that name later.

In 2008, the Vernon L. and Maxine H. Curd Family Trust was created, and the property was deeded to the trust. Sergeant Curd and his wife Maxine H. Curd were designated trustees. Though the parcels should have been combined into one parcel and deeded to the trust, they were deeded separately; however, this error was remedied with a correction deed in 2016, which combined the two parcels into one under one legal description on one deed to the trust. The property and business have for approximately 10 years been in a slow but steady decline. The rent that the market will support for mobile homes, especially older mobile homes, is steadily falling in relation to the cost of living and doing business. Maxine Curd has been unwilling to expend the funds necessary to maintain the property other than doing the bare minimum necessary. Shirley Curd has had barely enough income to maintain the rental mobile homes she owns in a livable condition.

The Current Controversy

As a means of preserving the business as well as spending down the cash assets in the control of Maxine Curd in order to make her Medicaid eligible, the family began in March 2016 contemplating dismantling the oldest mobile homes, one of which had been removed from service and was used exclusively for storage, purchasing two to three newer mobile homes, and constructing two two-story sheds to be purchased from Home Depot to replace the lost storage and improve the look of the property in the process. While the family was researching the economic viability of the newer mobile homes as well as the possibility of constructing a number of efficiency-style “tiny homes,” Brennan approached Searcy's Director of Code Enforcement, Mike Cleveland regarding permits for the two sheds. Cleveland told Brennan he did not think the buildings would qualify as sheds or storage buildings (accessory structures). Cleveland stated that he also didn't know if the buildings could be finished out and used as single-family rental units, since the property was used as a mobile home park. It was agreed that Cleveland would look into that possibility while the Curd family looked into its options for the property, which was stated included the option of doing nothing. Cleveland wanted everything to be run through him.

The Curd family quickly determined that the market would not bear a level of rent even for newer mobile homes sufficient to cover the financing and maintenance costs for such homes. The same was found to be true for the possibility of fixing up older mobile homes into a condition on par with newer mobile homes. Because it had always been the position of the Curd family that the property at issue, having been laid out and substantially constructed into numerous sites prior to its annexation and never having been exclusively used as a mobile home park, was a pre-existing mixed-use development/subdivision under City definitions and was thus grandfathered in and could legally continue as such with its existing lot sizes, setbacks, drives, drainage, and water and sewer facilities, the family looked into the possibility of constructing “tiny homes” on its sites ranging from 200 sq. ft. to just over 600 sq. ft. and meeting all requirements of the International Building Code, working off of portable and site-built buildings available from Home Depot and Derksen Portable Buildings. It was determined that, if these were rented fully furnished with all utilities paid, it would be a profitable venture and would vastly improve the nature of the property as well as its appearance and safety. While the family was pursuing financing, Brennan brought the possibility up with Code Enforcement personnel, specifically Cleveland and Phil Watkins as well as with City Planner Jim vonTungeln and, at the request of Cleveland, City Engineer Mark Lane. All seemed to think the idea of moving from mobile homes to efficiency-style homes would be a positive move for the property, the neighbors, and the City.

In the ensuing discussions, City Staff did not acknowledge that the pre-existing nature and use of the property prior to its annexation was as a mixed use development/subdivision. Though the City Planner stated that he did not see anything that was a definite no, there was discussion by City staff as to whether the planned use would constitute a new development subject to the City's Subdivision regulations. They voiced ideas to Brennan that it should be proposed as a Planned Development under the City's zoning code. Brennan explained that, at most, he felt the planned use required a few simple variances. City staff shot this down, with Phil Watkins stating that there would be so many issues that would have to be varianced that this was “not varianceable.” It was clear that no application for variance would be allowed. Brennan explained that the property was so small and the finances of the family were such that the idea of proceeding as a Planned Development (PD) or Planned Unit Development (PUD) was a non-starter. The costs of the required engineering drawings alone would be prohibitive. In addition, the small size of the property precluded the advantages obtained by economies of scale which make the expenses of paved roads, gutters, curbs, and drainage systems retirable. In short, Brennan made clear that a PD or PUD was cost-prohibitive. City staff seemed incapable of comprehending this simple concept and urged him to apply for a PD, and Brennan expressed his opinion that the property and use further did not qualify as a planned development or planned unit development under the zoning code. He contended that the planned use was, at most subject to approval as a conditional use for a use not otherwise listed for the R3 district. In these discussions, Phil Watkins informed Brennan that, as long as he was not spending over $2,000 on electric or plumbing on any one unit, he could do the electrical and plumbing himself, subject to City inspection, but that if he was spending more, the work would have to be done by a licensed electrician and a licensed plumber. Brennan requested an application form to apply for conditional use, and City staff insisted on giving him an application for planned development as well. He was informed that, if he filed his application by April 20, his application would be taken up at the May 3 Planning Commission meeting.

While preparing the application for conditional use, Brennan and the family decided to stand firm in and reassert the family's position that the property was grandfathered in not just as a mobile home park but as a mixed-use development/subdivision under City definitions and therefore entitled to grandfathering and continuance with established lot sizes, setbacks, drives, drainage, and water and sewer service. He believed such a determination was all that was necessary for the City to issue the construction permits for the “tiny homes.” He verbally requested this determination from Mike Cleveland. Cleveland (remember he is the Director of Code Enforcement) said it was “above his pay grade.” With the decision being above the pay grade of the Director of Code Enforcement, the only other entity that could be responsible for the determination is the Planning Commission. Brennan had planned to discuss the matter with the City Planner (who is merely a contract advisor to the City and not a city official) on his next scheduled day in Searcy, but the City Planner did not show up that day. Because the majority of the financing obtained by the family was on a 6-month interest only basis, time was of the essence, and the family did not have the time to be put off to the June Planning Commission meeting. Code Enforcement staff repeatedly advised Brennan not to spend any money until they could determine the best way to go forward. However, Brennan knows how to read English and felt he was capable of ascertaining the best way to proceed without having it dictated to him by a City staff notorious for dragging its feet. He decided to move forward by applying to the Planning Commission for the determinations needed to move forward.

Brennan complied with the City's requirements regarding notice and publication, and on April 20, he arrived at the Code Enforcement office with a formal application meeting all the requirements of the Zoning Code. The application first and most importantly sought a determination from the Planning Commission that the property at issue was a mixed-use development/subdivision at the time it was annexed and is therefore grandfathered and allowed continuance with established lot sizes, setbacks, drives, drainage, and water and sewer service. In the alternative, the application sought a determination that an efficiency and small home rental community was a conditional use for the R3 district and that the conditional use be granted. Code enforcement staff refused to file the application. Apparently, Code Enforcement staff believe a person does not have a right to apply to the Planning Commission for a determination on the use of his property unless they, in their infinite and unsurpassed wisdom, deem the person, the property, and the request worthy. They stated that Brennan's application would have to be reviewed “to see if this is anything that can even be done” before they would allow the application to be filed and that, if it was, it would go to the June Planning Commission meeting. Brennan strenuously insisted they accept his filing fee and allow him to file his application at that time so he could be on the agenda for the May Planning Commission meeting. Phil Watkins assured Brennan that, after review of his application, he would be allowed to file it and would be on the agenda for the May 3 Planning Commission meeting. After time for review by City Staff, Brennan inquired about the status of his application and was informed that he would not be allowed to file his application and that it would not be placed on the agenda for any planning commission meeting. When asked why, Mike Cleveland turned up his nose and told Brennan that the matter was “not an issue for the Planning Commission.” He stated that the City would send a letter explaining the determination. Brennan then requested that the City issue the permits for the construction of the efficiency homes. Cleveland refused, saying “It's a mobile home park.” He made it clear that the City's position is that only mobile homes can be placed there. This is a restriction of convenience, though, designed to thwart the family in their attempt to make profitable use of their property. They say NOW that the property is exclusively a mobile home park, but they have permitted construction of stick-built structures when it suited them. They are playing fast and loose with their zoning code for the sole purpose of denying the family a profitable use of their property.

Subsequently, City staff informed Brennan that he was not the only one to be denied a proposed land use or to be put on the Planning Commission agenda that month and that Harding University had also been denied that month. That day, Brennan obtained from the City Attorney a copy of an official letter denying access to the process established for the determinations requested by Brennan and the Curd Family. The reasons given in the letter were determinations that are to be made by the Planning Commission – NOT city staff. The letter additionally claimed numerous code violations on the property and stated that any further communication with the City regarding the future of the property would be limited to addressing those violations. Later that day, Brennan filed a FOIA request for any communications with land owners and any minutes of meetings regarding such determinations and was informed by the City Attorney that there were no such records. He insisted that there were, because he had obtained one regarding his application. The City Attorney then said that was the only such record. Somebody is lying.

In a private meeting to which Brennan was not invited and was not able to advocate for his family and the business, and at which no minutes were taken, City staff decided that Brennan, Curd Trailer Park, and the Curd family would be permanently barred from access to the process for applying for any determination as to the character of their property or to the future use of their property other than as a mobile home park. (City staff calls this a technical review meeting.) This is an egregious violation of the family's right to due process, both procedural and substantive, and has no basis in the City of Searcy Zoning Code.

The City Attorney's letter completely failed to address the primary purpose of the application – the request for a determination that the property is a grandfathered development or subdivision and allowed to continue with established lot sizes, setbacks, drives, drainage, and water and sewer service. Brennan confronted City Attorney Buck Gibson about this in his office, and he said it is “not a Planning Commission decision.” Given that Brennan had been told by the Director of Code Enforcement that the determination was “above his pay grade,” and given the fact that Brennan is smart enough to do his research and know that, by state statutes, planning commissions are to administer their zoning codes, he asked Gibson to tell him whose decision he claimed it was. Gibson said he could not tell Brennan, because that would be giving him legal advice. Under that ridiculous reasoning, it would be giving legal advice to tell someone where to go to apply for a building permit or pay a speeding ticket. That's just stupid. So, it's a childish school yard game of keep away. It is not a decision for the Planning Commission OR Code Enforcement – the ONLY two entities legally capable of administering the zoning code. This is an egregious example of playing fast and loose with the law. It is also the behavior of a bunch of spoiled rotten kindergarten bullies who somehow made it to adulthood without maturing mentally. When Brennan confronted City Attorney Gibson with a copy of the Zoning Code's requirement that an application for use not listed be determined at a public meeting of the planning commission, Gibson asserted that the planned use technically involved the construction of single-family detached dwellings, which is a use listed in the zoning code, so the application was not a proper application for determination as to use not listed. There would be no consideration of the conditional use. This is an example of the City engaging in hypertechnical interpretations of its zoning code in order to justify a predetermined result.

Brennan proceeded immediately to City Hall in an effort to avoid having to file a lawsuit to force the City to give his family access to the process for these determinations. He merely asked whose job at the city it was to make such determinations. City staff said it was the Planning Commission's job. Brennan then asked if anyone with the planning Commission was present. He hadn't been in City Hall three minutes when City Attorney Gibson entered and ordered him to leave. Brennan protested, saying he had a right to information about the structure of his City government. Gibson accused him or harassing city staff for legal advice and told staff to call the police on Brennan, who was not being disorderly, disruptive, or even loud. Brennan then told Gibson, “I know this is really hard for you, but you might consider trying not to be such an asshole.” Gibson then restated his order for city staff to call the police and accused Brennan again of harassing city staff for legal advice and cursing at them. Brennan insisted that he had not harassed anybody by asking a simple question and that he had not cursed at city staff but at Gibson. He then left voluntarily after a total time in City hall of less than five minutes. The police released him after a brief detainment and without further incident. Something is seriously wrong when City officials feel they have the right to have the police remove a citizen from City Hall simply because they don't want the person getting information. Is this the America we all love, or is it something more akin to the treatment we fought a revolution to get out from under?

Later that day, Brennan filed with the Circuit Court a Verified Complaint and Emergency Motion for Temporary Restraining Order Alternatively for Writ of Mandamus. The relief sought was limited to an order directing the City to place the application submitted by Brennan on April 20 on the Planning Commission agenda for consideration. Judge Tom Hughes denied this in a two-sentence order before the City and the Planning Commission had even signed for the complaints which were served by Certified Mail. The pleading was signed by Brennan in his capacity as property manager for the Vernon L. and Maxine H. Curd Family Trust, which owned Curd Trailer Park, which he managed. Having always been allowed to proceed in court for the business/property as the manager of the business/property, nobody thought twice about having Brennan file the action. After all, Brennan had filed the appeal for the business, proceeding as the manager, when Judge Mark Pate had issued the judgment without trial, and Circuit Judge Tom Hughes had even directed Brennan to prepare the order reversing the order and judgment of Judge Pate and signed that order without change. On behalf of the City, City Attorney Buck Gibson filed motions including a motion to strike based on Brennan not technically having legal authority to proceed in court for the business or the trust. Unlike the City and the City Attorney, Brennan and the Curd Family have the ability to admit when they are mistaken. They agreed to have the entire pleading stricken, thus ending the case. This is no great loss, since it is now clear that the City has dug in its heels against ANYTHING the family wants to do with the property and that going before the Planning Commission would be an exercise in futility.

The City is in fact not simply obdurate but is indeed actively belligerent to the interests of the Curd Family. The City is actively oppressing the family in clear contravention of their constitutional rights. Two lots on the property have for a time been rented to tenants who live in unimproved portable shed buildings. As stated, the business is on the brink of foundering, and it must rent to anyone who shows up with the money. The legality of the buildings as habitable structures is between the tenant and the City. When Mike Cleveland toured the property with City Planner Jim Von Tungeln in feigned consideration of Brennan's application, he took issue with the portable buildings, stating that they “aren't mobile homes” and making it clear verbally that it was his position that they had to go. Brennan complied and evicted the tenants in an effort to stay in the good graces of Code Enforcement. Under Arkansas law, he had to give them a full term to get out, so he gave them until the first of June, 2016 to be out. Both buildings had been rented by the tenants from Derksen Portable Buildings on rent-to-own contracts. The tenants have left, but the company has not seen fit to retrieve the buildings. Because Derksen's purchase money security interest supersedes the landlord's lien under Arkansas law, Brennan has no effective legal recourse. He cannot seize the buildings under the landlord's lien and abandonment statute and has no mechanism other than lengthy and costly court proceedings to compel the company to retrieve the buildings. Since the company never leased the spaces, they cannot be made to pay rent. Besides, the buildings are no longer occupied by tenants and are not being used as dwellings. They are at this point nothing more than unimproved sheds.

On May 9, 2016, Maxine Curd decided to terminate her business and lease the land to her daughter Shirley Curd and grandson David Brennan. Curd Trailer Park no longer exists. Shirley Curd conducts her business under the name NorthRidge Village, leasing spaces as well as the mobile homes she owns. Brennan is co-lessee and in addition manages NorthRidge Village. Curd and Brennan, who are now the real parties in interest concerning this property decided to place tiny homes for rental on the spaces as they become vacant. Because the City has dug in its heels on the issue and will not consider the placement of anything other than a mobile home on the property, Curd and Brennan developed a plan to construct, on unused areas of their property, tiny homes which meet the Zoning Code's definition of mobile home by obtaining portable buildings and building them out into tiny homes and delivering them complete to their final sites where they are to be occupied. This meets the technical requirements of the City's definition of mobile home, and the City insists it does not regulate mobile homes in any way. Because Curd and Brennan can read English just fine and know that the units they planned meet the definition of mobile home in the Zoning Code, they did not notify or seek permission from Code Enforcement, which has vigorously insisted it does not regulate mobile homes. For four or five months prior, Searcy builder Steve Ghent had been constructing a tiny home which also qualifies as a mobile home under this definition in a residential district in Searcy. The only difference is that his has wheels, and the ones planned by Curd and Brennan have skids. This is a difference which is irrelevant as to the City's definition of mobile home. Ghent's construction of his mobile home has been conducted with the knowledge and approval of Code Enforcement. This was discussed at Brennan's first meeting with Code Enforcement Director Mike Cleveland, where Cleveland said they couldn't stop Ghent because they don't regulate mobile homes and stated that he had asked Ghent not to sell his mobile home / tiny home to anyone in the city limits.

It is important to note that the property is on a private drive and is very well-screened off from the nearest City street. On May 17, the Inspection Department (Code Enforcement) issued two warnings and violation notices on the property. One concerned several areas that Code Enforcement said had become overgrown and needed to be cut. These areas are small compared to other areas of overgrowth in the city limits and not as bad as areas in the only other trailer park of any size in the city limits. The other concerned an active mobile home demolition and salvage operation that began April 12 and claimed that the mobile home had been demolished with all debris left on the ground for months. This is absolutely not true. The demolition was not even begun until mid April. Therefore no debris could have possibly been on the ground “for months.” The warning contained a bald-faced lie. This lot was at the time of the warning an active demolition/salvage site, and the City knew this. The longest the site has gone without work being done is three days, due to weather delays. Brennan sought a demolition permit in mid-April and was told by Mike Cleveland that no permit was required to demolish a mobile home because the City doesn't regulate mobile homes at all. When Brennan inquired about a time limit for a demolition, Cleveland informed him that there was none but that they didn't want it dragging on for a year. The City knew the demolition had not even begun until mid April! There is photographic proof that this was still an active demolition/salvage site at the time the citation was issued and that the mobile home was not even brought to the ground until May 1. The City is grasping at straws to cause the Curd family trouble. The City has, for some reason, decided to oppress this family and try to drive them into the ground.

The second warning and violation notice also addressed several piles of tree limbs and debris on the property which have been there for several months. Brennan is continually collecting downed limbs and other debris in piles that are either eventually hauled off or used for recreational bonfires for the tenants. Code enforcement officers have been on the property several times with these piles in existence. Brennan has even stopped them to see if they had any issues. They never said they did. In fact, piles such as these have been in existence on the property as an almost constant since it was annexed. In fact, when Vernon Curd owned and controlled the property, much larger piles persisted for much longer periods of time – even in clear view of the nearest City street. They only decided to take action against the property after Brennan sought to use the family property without kissing the right ring or greasing the right palm and after Brennan and the family attempted to exercise their constitutional rights.

There is no condition complained of currently existing on the property or existing on the property at the time of the warnings that hasn't existed in continuity since the property's annexation 44 years ago. Small areas of overgrowth and piles of limbs, leaves, and other debris have been a fixture on the property since annexation. Areas are periodically cleared, and piles are periodically hauled off or burned in recreational bonfires, but the City has never had a problem with the conditions on the property until the Curd family attempted to exercise it's constitutional rights. The warnings gave the ridiculously short period of seven days to complete the cleanup. This is not a required time period in the Code of Ordinances but a minimum time. Given all the other work which must be done to take the property forward and ensure its financial viability, and given the fact that these conditions have existed continually for the last 44 years on this property without action and are not in view of any City street, a 60-day time frame would have been more reasonable. The family was hit with the bare minimum because Code Enforcement staff resented Brennan and the family standing up for their rights and wanted to punish them for it.

Still, Brennan began work on cleaning up the property. Several piles of debris are gone, and all of the overgrowth except for Brennan's blackberry patch (which is allowed) is gone. All the piles would have been gone had it not been for the fact that the first five of the buildings which are to be made into tiny homes which qualify as mobile homes under the Zoning Code arrived much early than expected.

In the meantime, on June 8, 2016, Searcy Code Enforcement came onto the property with the police in tow to check on the claimed violations. When there is NO HISTORY OR INDICATION THAT VIOLENCE COULD OCCUR, bringing the police is only a strong-arm tactic less reflective of a free country than it is reminiscent of Mussolini's Italy, Stalin's Russia, or Hitler's Nazi Germany. During that warrantless search of this private property for evidence of city ordinance and zoning code violations, Mike Cleveland noticed that the copy of the sign at the front of the property had been changed to reflect the new business name and to advertise tiny homes/cottages and took issue with Brennan about this and also inquired as to the stacks of concrete blocks and 2x8 lumber on the property. Brennan explained that the blocks were for jacks for the new tiny homes and cottages and that the 2x8S were for skids that would enable them to be moved via trailer. He explained that they were all mobile homes under the City's definition. Mike Cleveland stated that “it has to have wheels to be a mobile home,” which is not true under the City's definition. Brennan told him to check his definition in the Zoning Code.

On June 9, 2016, Brennan hand delivered a letter to Mike Cleveland explaining in writing about the new mobile homes and even quoting the pertinent part of the Zoning Code. The Zoning Code defines mobile home as follows:

A single-family living unit designed for transportation after fabrication on streets and highways on its own wheels, or on flatbeds or other trailers, and arriving at the site where it is to be occupied as a living unit complete and ready for occupancy, except for main and incidental unpacking and assembly operations, located on jacks or permanent foundation, connected to utilities and erected in accordance with prevailing city laws.

A dwelling unit constructed in a factory before the enactment of the federal standards.

City of Searcy Zoning Code p. 10

The first paragraph takes up five lines in the Zoning Code. The second paragraph takes up one line. Because any idiot knows that, there being two paragraphs, the definitions are separate and distinct, and one does not control the other, in his June 9 letter to Cleveland, Brennan quoted the Zoning Code in pertinent part – the first five lines. He explained that the units being built on the property will meet this definition. He also explained that, having knowingly allowed Steve Ghent to build a tiny home that meets this definition in a residential zone within the City, Code Enforcement could not prohibit him from building his.

On that day, Mike Cleveland and Phil Watkins showed up on the property and witnessed the delivery of the first prefabricated cabin that is to be made into a tiny home qualifying as a mobile home under the City's definition. Later that day, Kenneth Shoemaker showed up and took pictures of the cabin and saw that a second was being delivered. He also took pictures of the lot across the street where the demolition/salvage operation was ongoing.

On June 13, 2016, Code Enforcement came to the property with the police in tow and delivered Brennan and Curd a letter from Code Enforcement Officer Kenneth Shoemaker. In that letter, he accused Brennan of misstating the definition of mobile home by quoting it in pertinent part. He included the last sentence in his definition and held that last one-line sentence to render the first five line paragraph superfluous and meaningless. The letter represents that the only part of the definition which has any meaning is the last one-sentence, one line paragraph. If that were true, then the first separate paragraph – the first five lines – have no purpose whatsoever. No court will interpret the definition that way. It defies logic, reason, common sense, and the canons of statutory interpretation. The separate paragraphs are clearly in the disjunctive rather than in the conjunctive. If they were in the conjunctive, it would create an ambiguity for any reasonable person reading it. In that letter, Curd and Brennan were informed that, if they did not remove the new units within seven days, they would, in the belligerent eyes of Code Enforcement, be in violation of the Zoning Code. Mike Cleveland handed Brennan a “stop work order,” which is meaningless, because this is still America, and a person cannot be compelled to do or not do a thing on the whim of a local government official but only by a court order after due process. Brennan informed Cleveland that he thought this was personal between the two of them and that he was likely to find himself named personally in a federal lawsuit. He stated that he was “just doing his job” and that he “has a boss” and was just doing as he was told. Brennan asked Cleveland repeatedly to tell him who was ordering him to take the action and who was making the determinations involved. He refused to say who, so Brennan told him he was apparently not man enough to say who was calling the shots. Cleveland also handed Brennan and Curd a warning / violation notice regarding the sheds on lots H and 8 which had been rented from Derksen by tenants and used as dwellings demanding that they be moved within seven days or Curd and Brennan would be cited. Kenneth Shoemaker took pictures of the next three tiny home mobile homes under construction on lot 10.

Not only did the Warning / Violation Notice wrongly refer to lot 10 when lot 8 was clearly the lot involved, but it contained the word residents where it should have said residence twice. How is anyone supposed to give any credence to this Code Enforcement Department's interpretation of the Zoning Code and City ordinances when they can't get lot numbers right and appear to be bordering on functional illiteracy? It is quite clear that Code Enforcement is using an embarrassingly contrived and unsustainable definition of mobile home in a belligerent effort to oppress the Curd family and deny them any profitable use of their property.

The Code of Ordinances and the Warnings / Violation Notices served by the City regarding the growth and the debris provide ONLY FOR FINES as penalties for violating the city ordinance regarding the maintenance of property. One cannot be jailed for violation of a City ordinance or the Zoning Code. Though one can be imprisoned/jailed for failure to pay fines, one cannot be jailed for mere violation of the ordinance. It is a well-known legal rule that where a statute or ordinance lists specific remedies, all others are excluded. Nevertheless, and despite the fact City Code provides that Code Enforcement Officers may issue citations and summonses to appear in court for violations, Searcy Code Enforcement chose instead to have Shirley Curd and David Brennan arrested by the Searcy Police for the ongoing demolition/salvage operation of which they were well aware. Yes, they were ARRESTED for non-jailable offenses! They were ARRESTED for doing exactly as they had been given permission to do! There is no call to ARREST someone for an offense that they cannot possibly go to jail for! This is outrageous. What's even more outrageous is having someone arrested for debris on the ground when you know the debris is incident to an ongoing demolition/salvage operation of which you had been informed. Now, Shirley Curd was read the warrant and issued the citation and released on her own recognizance because she is her aged mother's caregiver and no temporary caregiver could be arranged for on such notice, but the police did show up with the intention to take her in. David Brennan was allowed to post his bail and have the warrant read to him at the Searcy Police Department. Had he not been able to post the $250.00 bail, he would have been held in the White County jail until he was able to post it. He would have been jailed until he was able to post $250 bail on an offense which does not carry jail time as a penalty. THAT is messed up!

These warrants for Brennan's and Curd's arrests, which were sought by affidavit of Code Enforcement Officer Kenneth Shoemaker, were signed by … wait for it … wait for it … Judge Mark Pate – the judge Brennan had recently tried to have removed from office for issuing a $12,000+ judgment without trial. That is at the very least the appearance of impropriety. Judge Pate was required by Canon 1 of the Arkansas Code of Judicial Conduct to have nothing to do with these affidavits for warrants of arrest.

On June 24, in response to affidavits filed by Code Enforcement Officer Kenneth Shoemaker, Judge Pate issued warrants for the arrest of Brennan and Curd for not removing all the buildings on their property which Code Enforcement obdurately refuses to see are mobile homes in the making and for engaging in the construction of these units without permits. This is wrong on many levels. First, how can you arrest someone for “building without a permit” when you refuse to issue them a permit to build? Second, two of the buildings Brennan and Curd were arrested for not removing are buildings they have no control over whatsoever. They were arrested for not doing something they have no legal right to do – remove buildings they have no right to or interest in. This is completely messed up! Brennan had explained to Code Enforcement that the two buildings which had been used as residences by tenants who rented spaces on the property were rent-to-own buildings over which he and Curd had absolutely no control, but this didn't stop them from having him and his 68-year-old mother arrested for not removing them from their property.

Argument - the Constitutional Violations

The City of Searcy and its staff have violated the family's constitutional rights in several ways. First, by barring the family from access to the process to secure the appropriate determination that their property is a grandfathered development/subdivision, they have violated procedural due process. They are refusing the family access to the process that is due. Their actions in denying the family all uses of their land other than as a mobile home park without a meaningful opportunity to be heard constitute a seizure or taking without due process of law. Second, by acting arbitrarily and with improper motives, they have violated substantive due process. They are almost completely impeding the family's profitable use of their property, constituting a taking without procedural or substantive due process of law.

Though there has been no official determination that the property was not a development/subdivision at the time of annexation, the actions of Code Enforcement appear to be grounded in such a determination. The city staff position that the property is not now a development or subdivision but would be a new development or subdivision if the character of structures on the lots was changed is ludicrous. The idea that one type of single family home does not make the property a development/subdivision while another does lacks support in law and common sense. That the property was populated principally but not entirely with mobile homes instead of stick-built homes is irrelevant. To say a property entirely under one ownership with one family living in one home on each lot is a development or subdivision when the homes are stick-built but that same property with one family living in one home on each lot is not a subdivision when the homes are mobile homes or manufactured homes bends logic and reason to the breaking point. So does saying that a property can be either a development/subdivision or a mobile home park but not both. That is like saying a person can either be an American or an Arkansan but not both. An Arkansan is a subclass of American just like a mobile home park is a subclass of development/subdivision. The NorthRidge Village property is a development and was when it was annexed. It was never dedicated totally to use as a mobile home park, and the presence of at least one site-built home on the property since 1968 makes it a mixed-use development/subdivision.

The enforcement actions against Brennan and Curd are not only selective prosecution in violation of equal protection and due process but also malicious prosecution involving false arrest. The charges against Curd and Brennan are not things a person can possibly go to jail for. The only penalties enumerated in the ordinances are fines. So, how do you arrest someone and hold them in jail until they post bail when the charges against them cannot possibly result in jail time? Luckily, Brennan and Curd were able to make other arrangements, but the intent of Code Enforcement and Judge Pate was that they be held in jail until able to post bail of $250 each per charge. The evidence of selective prosecution based on improper motives is monumental. The other mobile home park of size in Searcy has worse violations than the Curd family's property, yet they are not hit with enforcement actions. They have weeds growing eight or nine feet high, and there is a non-running vehicle with weeds growing up all around it. There are property maintenance ordinance violations all over town in much more obvious areas, and they persist. Also, there is no condition on the property that hasn't existed continually for 44 years and often been much worse. Why prosecute now? Retaliation for the exercise of constitutional rights. To make the family pay for having the nerve to think and read the Zoning Code for themselves and plan and act according to their understanding rather than being dictated to by their local government, which has zero capacity for creative thought. Does anybody think it odd that Code Enforcement wanted to tell the family how they should proceed with applications concerning the future use of their land? Wouldn't that be giving legal advice? Buck Gibson thinks merely telling who is responsible for a certain determination is legal advice.

The City has violated its own public policy just to thwart the efforts of this family to improve their property and the neighborhood around it. Not only have the actions of the City and its Code Enforcement staff been wholly inconsistent with the mission statement on the Code Enforcement home page and the objectives and goals set out in the City's Comprehensive Plan, they are at extreme odds with the American political theory. We fought the revolutionary war to get out from under treatment like what this City seems Hell-bent on doling out. In America, we are not supposed to be subjects under rulers. We are supposed to be citizens, and our government is supposed to be composed of public servants. The City of Searcy, specifically its Code Enforcement Department, has taken the position that it has the right to rule with draconian strictness over the residents of Searcy as subjects to their rule. This should leave a bad taste in any American's mouth. Under Arkansas case law, zoning codes must be interpreted in favor of the property owner. Searcy interprets its zoning code in every instance without exception in favor of its own twisted interest in being the sole and unquestionable determiner of what the Curd family may do with their property.