Out of Their Trees

The City of Tempe plays fast and loose with a donated downtown park

When Olivia Birchett donated a prime piece of Mill Avenue real estate to the City of Tempe back in 1979, nobody seemed to mind that the philanthropic widow's generous gift carried a few strings.

The property was to be developed for use as a public park in perpetuity, a proviso to which councilmembers readily agreed. And during a 1980 ceremony dedicating the park to the memory of Birchett's late husband, a member of a pioneering Tempe family, the city acted in accordance with another of her wishes. A plaque was installed identifying the leafy little oasis as the Joseph A. Birchett Plazita de Descanso--or "little plaza of rest."

But were she alive today--Birchett died in 1988--the benefactress might consider rechristening the recently revamped park as the "plaza of little rest."

Razed in the summer of 1994 as part of a city redevelopment project at 525 South Mill, the Plazita de Descanso finally resurfaced this fall as part of a multistory complex that includes Crocodile Cafe and Urban Outfitters.

An in-name-only incarnation of Olivia Birchett's conception, the unparklike park no longer even occupies the exact land specified in Birchett's gift. As a result of creative "reconfiguring" on the city's part, the once-rectangular park now snakes backward from Mill Avenue, essentially nothing more than a paved walkway leading eastward from the street toward the inverted pyramid that serves as the headquarters of city government.

Where birds once flitted among bushes, customers at a chain cafe's outdoor patio chatter away over moo shu chicken calzones and passion-fruit iced tea. Where cinema hipsters once critiqued the flicks they'd just seen at Valley Art Theatre next door, now minions hawk tee shirts from a city-owned souvenir kiosk. And opposite the former location of a custom-designed sundial, Crocodile Cafe employees trundle garbage cans to a Dumpster compound.

If there were any park benches available (the unfinished plazita has no seating yet), passers-by could grab ringside seats for the latest controversy to hit Mill Avenue--a spirited debate pitting the redevelopment-happy city against Olivia Birchett's surviving family members and others with interests on Mill Avenue.

There's no way to know for certain how Olivia Birchett would react to what the city redevelopers now call "improvements" to her bequest. Family members, however, insist an outdoor cafe and a tee-shirt stand weren't exactly what "Aunt" Olivia had in mind when she decided to turn over the pricey--and highly visible--piece of realty as a way of memorializing her late husband, Joseph, who was fatally shot in his downtown Phoenix law office in 1962 by a disgruntled handyman who'd been dropped as a legal client.

"If my aunt had wanted to see a restaurant there, she would have sold the land [to a restaurateur], not given it to the city," argues Olivia Birchett's "nephew," family spokesman John R. Birchett. (The "aunt/nephew" relationship is just genealogical shorthand; Olivia's husband was actually a first cousin of John's father.)

"Now the city has granted an easement orsomething to the Crocodile Cafe in direct violation of those wishes," continues Birchett, an environmental consultant. "Well, this is not right; this can't go. We want it to be a place where people can sit down and enjoy--just a downtown park. What they've got there now is not a park; it's a gravel-covered parking-lot extension."

Members of the Birchett family were unaware that the original park had been razed until they were alerted by a family friend in mid-November. Paperwork concerning Olivia Birchett's gift was reportedly uncovered by Mill Avenue business owners who were hoping to quash the city's plan to place a souvenir kiosk in the park on a trial basis.

When several people (including Valley moviehouse mogul Dan Harkins, who sent a representative to the meeting) called for an investigation into the propriety of the park/restaurant/kiosk conflict, councilmember Carol Smith assured everyone that "the family is aware of what we're doing ... and they don't seem to have a problem with that."

"Hearing that kind of griped us, because we do have a problem with that," says Birchett. (Reached for comment, Smith explained she was merely repeating what "someone" had told her.)

Documents regarding the original park would seem to support the proposition that the city has misused Olivia Birchett's gift.

City records show that, in a city council resolution dated October 26, 1979, members unanimously voted to construct a park on the site specified in Birchett's deed and, furthermore, to maintain it as a park in perpetuity.

But members of the Birchett clan may be in for a surprise if they're expecting a loud "oops!" to echo from the upside-down pyramid off Mill Avenue.

City records show that, during a January 20, 1994, council meeting, members approved a lease with Crocodile Cafe in the to-be-built 525 building--an agreement that called for initial monthly rents of $18 a square foot on the 2,950-square-foot restaurant, or a percentage of gross sales, whichever is greater. Apparently, no one on the council was bothered that blueprints indicated the Crocodile Cafe patio encroached on the original park area. According to redevelopment head Dave Fackler, the old park wasn't really that great to begin with.

"Basically, what you had before was a brick area with some seating, a few trees and some bushes," explains Fackler. "[It] was sitting there basically unused. The opportunity to energize the park and make it part of the city hall, as well as the buildings on either side, presented itself.

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