An Arizona Zoning Board Tries To Muzzle Free Speech

Arizona was the last of the contiguous 48 states to join the United States, adding its star to the flag in 1912. For many Americans, the state typifies the Wild West: towering saguaro cacti, the Grand Canyon, the O.K. Corral. But today, like most places in America, Arizonans can’t simply purchase some desert land and carve out a living without first getting a permission slip from their local government.

Joshua and Emily Killeen found this out the hard way. The couple moved from California with the dream of opening up a simple, rustic retreat for weddings and wellness getaways. This would let them use their respective skills in photography and yoga instruction while also living out their ideals about self-reliance and environmental sustainability. They put up a tiny home and a solar-powered barn.

Although they may have thought of themselves as pioneers, even putting up simple structures on 10 acres of desert land means complying with a host of zoning regulations. After receiving an anonymous complaint, Yavapai County Development Services initiated an investigation into Joshua and Emily’s property. In June 2018, the couple were informed that they would need to either get permits for their structures or return their property to its original, undeveloped patch of desert.

If Yavapai’s instructions had ended there, Joshua and Emily’s story would be unremarkable. While the wisdom of using zoning to micro-manage property rights has come into question across the country, legally the couple have little choice but to go through the permitting process. But Development Services also banned them from advertising their coming retreat and banned them from having friends and neighbors over for “Wellness Wednesdays.” This weekly event is a free, open-air time to partake in yoga and a vegetarian meal.

This means the county’s punishments impact rights guaranteed by the U.S. Constitution, rights that cannot be lost for mere zoning infractions. Joshua and Emily have a First Amendment right to communicate about their business. And they have a right to associate on their private property that is guaranteed by the 14^th Amendment. To protect these rights for themselves, and ensure that the county doesn’t seek to punish other Yavapai property owners in the future, Joshua and Emily launched a federal lawsuit, represented by the Institute for Justice.

Few beyond those in the government would question that their right to advertise their coming retreat is protected speech. It is routine for storefront businesses to hang large “coming soon” banners long before permits are issued and the store can open for paying customers. It is also increasingly common for companies to launch a website while a location is still under construction.

Yet Yavapai told Joshua and Emily to stop advertising. This is especially hard on their business because wedding venues are often booked months and sometimes years in advance. Not being able to take reservations now means missing out on future revenue.

The First Amendment protects Joshua and Emily’s right to truthfully advertise their coming business. If they want to operate a website, or a Facebook page, or post videos detailing their plans; the county has no authority to stop them.

When the county banned the couple from having friends and neighbors over for potluck dinner and yoga, it stomped on their 14^th Amendment rights. Joshua, Emily, and their friends have a right to associate on private property and engage in common, non-commercial activities. Shelter in place orders issued during the pandemic have lifted in Arizona and the county doesn’t have a clear health or safety reason to make the couple stop having people over for free food and fellowship.

The Institute for Justice has gone up against abusive zoning boards across the country. Unfortunately, courts have often sided against property owners trying to do simple activities that every American should be able to enjoy. In South Florida, for example, the town of Miami Shores banned residents from growing vegetables in their front yards. While courts failed to protect homeowners, the Florida Legislature passed a law banning towns from preventing municipalities from stopping residents from growing their own food on their own property.

Joshua and Emily are being prevented from communicating and socializing in ways that don’t threaten anyone and that don’t require a permit. The power to regulate land is not the power to strip people of other constitutional rights. Zoning authorities—just like all government officials—are limited in their powers. And Joshua and Emily plan to remind Yavapai County Development Services of that fact.