American Dream Denied

as told by George Kosmides & Family 

In 1996, my Father (who has a PhD in Engineering) and I, along with the aid of my computer began to design a solar powered earth sheltered home. This has been a dream of our family for years. My wife’s family has come as far as Vietnam to reside in Phoenix. This self-efficient home being built north, in the Phoenix desert, (north of Carefree Hwy, District 19). Towards the end of 1996, we hired an Arizona licensed Engineer to begin the drafts & drawings for our home. He comprehends all that is involved in underground homes/shelters, for he is the very same gentleman who engineered the Geodome/Biosphere near Tucson. 

We had decided against a contractor for a number of reasons, one being that all that I spoke to knew very little about concrete and steel construction and residential home building. Our family made a conscious decision that I would “manage” the home’s construction with the consultation and aid of specific professionals when the need arose for those specific and critical areas. I submitted the engineered and architectural plans soon after the plans were complete to the County Planning & Development Office. 

Over a 20 month period of time, I had made at least one dozen trips to the County, revising our home plans as requested, supplying everything they asked for each and every time, no matter how unreasonable I thought it was (airplane photographs). When the final revision was made according to the County, they finally told me that I had met all their demands and gave me our permit # 950-24074, telling me to come back in a week to pick up the paperwork. I began construction around this time. 

I went down to the County office located at 411 N. Central (602 506-3201) a week later. They pulled out my file. It was 2 inches thick of plans, details, maps, a seismic study, soil analysis, etc… everything they had asked for and required of me. I was so proud and exuberant that we were on our way to building our dream home. This entire process took about two years to facilitate, so as you can imagine, I was excited to proceed to the next step. To my dismay, the man at this office told me that Maricopa Planning & Zoning has denied our permit for the following reasons:

1. The driveway is twelve (12) inches wider than allowed.
2. The area is 3% larger than allowed. 

The permit was denied, just like that! When I asked for an official denial on there office letter head, the man working behind the counter told me, “You don’t need that” and proceeded to call “next” and as far as he was concerned, finished with me. I was shocked and taken aback, but stayed calm. I explained, “nothing has changed since last week, why wasn’t I told anything these past 2 years?” I proceeded to explain, “the so-called “driveway” is a strip of dirt out in the desert that we have no control over. They said, “It doesn’t matter.” I explained that the home would be covered with earth and only 4% of the total area will be disturbed. The remainder of the area will be re-planted desert with water for wildlife and there will be a natural habitat. The P & Z rep replied, “It doesn’t matter”. A helpless felling came over me. 

As I was leaving the building, I met a gentleman (I later found out that he was an inspector for the County) that told me that since our house will be naturally heated and cooled, there would be much higher fees involved and many more inspections. “We don’t want people building homes that are so good…” he replied with a chuckle, at the same time admitting he knew nothing about this design or the structural needs of an earth sheltered home, yet he would be one of the inspectors of our home. I found out later that this was a “chief inspector.”

We are hopeful that the reader will begin to see that the process of procedure to retaining a building permit for our safe, well-built home has become a nightmare. After years of applying, we are ordered to reduce 12 inches from the Arizona desert, our driveway. How do you do that? A sane person would think there is an active and persistent conspiracy to stop this type of home - that my family is being denied, for irrational and illogical “violations” that don’t make any sense. A concrete and steel home that is naturally heated and cooled does not pose a threat to the public; on the contrary, it benefits both the community and nature. For a time, after the denial, I was not sure who to see or what to do… At this point I knew I had to learn of our rights as citizens.

I feel we are being penalized for using solar and wind for energy as well as building “in the earth” rather than on it. You would think that Maricopa County would embrace a citizen who wants to replenish the ecology and environment rather than destroy and pollute it. We place a great emphasis on the environment and respecting our neighbors, realizing property values would only increase by our home being built. We will eliminate the hanging of power and phone wires and the placing of poles. We should be rewarded for such acts of civic awareness. After all the effort that has been placed to fulfilling County requirements, to revoke our permit for deficiencies I could not even get in writing is unreasonable. The line typed on blank piece of paper saying, “DRIVEWAY 12 INCHES to WIDE” 18% area disturbed (allowable 14%). Not taking into account the areas, terrain, and circumstances as they will be applied is unreasonable. The house will be “unseen” and the area pristine within months of completion. Total disturbance less than 5%. 

An example of the area we are in: 12th Street, the main street that this property lies off of was “abandoned” by “County Road Act”. This road is barley drivable by truck. The driveway, desert “path” on our property is 12 inches wider than allowed. I did and do not know were to turn. After spending all of 98 and through today researching, trying to understand, I brought my findings to the County - with a request. Through the freedom of information act, I asked for a copy of a simple document granting them such power and authority. According to United States Constitutional law, a “suit to cancel” must be in place in order that the County has lawful jurisdiction over our land, without this amendment/suit , not only abrogates our rights and undermines the US Constitution and its laws, but places our family property in a 3rd party contract, revealing what amounts to a “collateral attack”. Since asking for the document back in 1998, I was mainly ignored, but in the last 3 weeks, I have been threatened with 6 months in jail and thousand of dollars in fines, if I don’t correct the “deficiencies”. 

What was found?

Private land here in Arizona was purchased under and is bound by a Federal Land Patent. In order to pass and hold lawful jurisdiction from 1 party to another, there has to be a “suit to cancel” to remove the Federal Land Patent. Back in early 1999, I wrote a letter to the County Supervisor Carolyn Long asking for a copy. Here is why:

After consulting an attorney, he guided me to other lawful requirements: The “suit to cancel” is needed to protect the property by lawfully requiring the patent to be cancelled properly protecting all. By implying a third party contract by, collateral attack confuses the landowner and the future heirs and/or purchaser. Also, abrogation of 5th Amendment rights, unknowingly, may be implied or construed.

“A patent to land is the judgment of the Land Department and the conveyance of the title in execution of it to the party adjudged entitled, and, when the land described was in the jurisdiction and subject to the disposition of the Land Department, it is impervious to collateral attack.”  Neff v. United States, 165 F. 273, 277, 91 C.C.A. 241.