To pick B, C or D. Or not to pick B, C or D. That was the question.
The Sedona City Council was asked to give input into a long-standing issue of 27 landlocked acres across Oak Creek from Poco Diablo Resort. After nearly two hours of discussion, council gave direction to staff on Tuesday, Sept. 12, to pen a letter to the U.S. Forest Service listing its thoughts and concerns.
For more than a decade, the Coconino National Forest has been assessing options for a proposed permit/easement for the construction, operation and maintenance of an access road to the private land parcel under the National Environmental Policy Act, a city report states. The proposed action would provide access across Coconino National Forest land to private land in accordance with a judgment rendered by the U.S. District Court for the District of Arizona in September 2002.
This issue has been discussed by council six times since 2007 — the last time being in 2011. No current council members were serving at that time.
Throughout the city’s involvement with this issue, council has consistently encouraged land owners — Bruce and Natalie Tobias and Carol and Robert Flynn — and the Oak Creek Cliffs Homeowners Association to work out an access arrangement using the existing private crossing and private road at the Oak Creek Cliffs Drive alignment, a city document states. This included council making a formal request to that effect in 2007.
The Oak Creek Cliffs Homeowners Association subsequently provided a letter indicating it would not reconsider granting access through its properties. In 2008, council considered condemnation to provide access through the Oak Creek Cliffs Drive alignment. Council ultimately decided not to pursue condemnation at that time to allow the environmental assessment process to play out.
The city document states that should council now elect to consider using condemnation to acquire access through Oak Creek Cliffs Drive alignment, additional analysis and legal review would be necessary.
The topic of condemnation was brought up by a few of the members of the audience who spoke during public comments. After the meeting, City Attorney Robert Pickels addressed the issue.
“Because condemnation was only brought up by the public and not discussed with council [during the meeting], it is not even an option being considered at this point,” he said. “However, if that concept were to emerge as a suggested course of action, there are obvious legal obstacles to pursuing it. Without going into detail, I am not convinced at this point that it would be a viable option for the city. It would require a thorough legal analysis to arrive at a definitive opinion on that subject.”
The USFS, which is in the midst of an environmental assessment, is proposing three access alternatives. In the end, the federal government will choose what it feels is the most suitable alternative. They include:
- Alternative B: A road approximately 0.85 miles on USFS land to the property and would start from Oak Creek Cliffs Drive. The route would include a two-lane, 24-footwide bridge approximately 450 feet long and 60 feet high that would cross Oak Creek just above the upper end of the “swimming hole,” and cross one ephemeral natural drainage tributary to Oak Creek. By comparison, Midgley Bridge is 375 feet long.
- Alternative C: A road approximately a half-mile to the subject property. It would cross Oak Creek upstream from the above alternative and cross one ephemeral natural drainage tributary to Oak Creek. A 24foot-wide bridge approximately 650 feet long and 80 feet high would cross Oak Creek downstream from another informal swimming hole.
- Alternative D: A 1.4mile-long access road plus 1,850 feet of reconstructed Chavez Ranch Road, to the private property starting from the road. It would cross a total of approximately nine small ephemeral natural drainages and washes that are tributary to Oak Creek.
The parcel owners attempted to negotiate for access through non-federal land to the parcel several times over the years. When negotiations failed, the parcel owners sued to condemn a private way of necessity in Coconino County Superior Court. The state court denied the parcel owners motion for failing to carry their burden of proving reasonable necessity for the easement because the parcel owners might obtain access over National Forest land.
Subsequently, the report states suit was filed by Tobias and the Flynns in the U.S. District Court for the District of Arizona. In 2002, the court issued in favor of the plaintiffs, finding that an easement by necessity exists.
Council requested that the following input be included in the letter to the USFS:
- The preferred alternative is the one that best mitigates environmental impacts and mitigates aesthetic impacts.
- The city believes Alternative D should not be considered because it has significant environmental and aesthetic impacts. Additionally, this alternative is the most challenging for emergency responders and constitutes unnecessary impacts to health and safety of any potential residents of the property.
- Access directly from State Route 179 should not be considered because of the potential conflicts with other access points in the immediate area.
- Alternative B includes a preferred point of origin for access from Oak Creek Cliffs Drive.
- Alternative C includes a preferred point of terminus for access to the property on the south end, instead of extending the road beyond the south of the property and around to the west side of the property as in Alternative B.
- It appears on its face that combining Alternative B and C — as suggested by Councilman John Currivan — best mitigates environmental and aesthetic impacts.
Aside from condemnation, residents of Oak Creek Cliffs also brought up concerns about additional traffic turning on and off of SR 179; parking near the bridge by those accessing the creek; if the 27 acres will have more than one ingress/egress; the impact on their property to have access through it; and what a bridge and adjacent housing development would have on their view shed.
“We’re the human equation in this,” Oak Creek Cliff resident Constance Loef said. “Do we matter? Does our private property and our way of life matter? We’d like to think it does. It matters to us and it will matter to us until our hearts stop beating, because that’s where our home is.”
Natalie Stetz-Tobias spoke and said that like the nearby residents, they have hoped that access to their property would have as little impact as possible. She said the option they have sought all along is to have access to their property using Oak Creek Cliffs Drive.
“If there is anyone here who objects to any of the proposed Forest Service alternative routes, and you think the possibility of using Oak Creek Cliffs Drive would be the least damaging route to the 27-acre parcel, I ask that you talk to the residents of Oak Creek Cliffs, talk to our City Council members and implore them all to consider the overwhelming benefits for the entire Sedona community to using the access that already exists,” she said.