Road Kill

An innocuous road near Sedona is all that remains of Ken Parker's dream of a grand resort. Now Yavapai County is joining megadeveloper SunCor to take that away, too--with the county providing condemnation powers and SunCor paying the bills.

To Ken Parker's father, a cowboy who wrangled dudes in the 1940s, the area south of Sedona was unremarkable grazing land known as Jackass Flats. But to Parker, it was a land of opportunity, and he wanted to cash in.

The time was 1979, before the crystal worshipers had begun talking about vortexes and spiritual energy in the red rocks. But it was already obvious that Sedona was a spectacular place drawing urban refugees and retirees like a magnet.

Parker envisioned a massive, world-class resort on a hillside near the village of Oak Creek, and he bought up 300 acres to make it happen. It would have housing for 800 people, a championship golf course, a hotel, a shopping center and a health club.

In 1983, Parker hired engineer Joe Jones to lay out the first phase of the project--a condominium subdivision--as well as a road that would connect the parcel to Highway 179.

That's when Jones gave Parker a crucial piece of advice. He encouraged Parker to keep the road connecting the condos with the highway privately held, a separate piece of property.

Later--when Parker's stake in the project was sapped by partnership disputes, and outside investors took over the property--Jones' advice would save Parker from losing everything.

The resort property might have slipped through his fingers, but Parker still owned the road, the project's only access to busy Highway 179. And with the road came a strong bargaining position. After all, in Arizona, there are few more bedrock values than the sanctity of private property.

That's what Parker thought, anyway, until one of the largest corporations in the state came to town and decided it wanted his small, curving road.

In February 1995, SunCor Development Corporation, a subsidiary of Pinnacle West, the holding company that owns Arizona Public Service Company, purchased the 300-acre resort for an estimated $13 million.

Two weeks later, SunCor president John Ogden met with Ken Parker to discuss the entrance road.

"'Aren't you ever going to give up?'" Parker says Ogden asked him.
"I told him no. We own this property," he says. Parker then says Ogden told him that if Parker wouldn't relinquish the road, SunCor would play its trump card.

"'We will simply condemn it,'" Parker says Ogden told him.
Parker knew that fighting with the large corporation would be tough. But even the heavyweights at SunCor didn't have the power to condemn his land, he thought. Eminent domain, after all, is one of the government's harshest powers, and even SunCor couldn't buy that power at any price.

So SunCor rented it.
SunCor officials have convinced Yavapai County to condemn the road and dedicate it to the public, ending forever any questions of its ownership.

Yavapai County isn't concerned that its use of condemnation to end the dispute appears to give SunCor a convenient way out of paying Parker a lot of money. The benefit to the public outweighs any concern about appearances, county officials say.

But those appearances are troubling to property owners who say developers are increasingly turning to government and its powers of eminent domain rather than solving such disputes privately.

Yavapai County officials acknowledge the only reason they're condemning the road is because SunCor requested it--and offered to pay for it.

SunCor has indemnified Yavapai County and is paying all of the county's bills in the condemnation action, which could save SunCor millions of dollars.

For county officials, residents and others anxious for SunCor to finish a project begun nearly 20 years ago, concerns about the propriety of the condemnation pale beside a less-abstract concept: silencing that pesky Ken Parker.

Without eminent domain, the government wouldn't have the power to move the proverbial little old lady out of the way of a new freeway or an airport runway.

But increasingly, that power to force the sale of land is being used to benefit private interests. A developer decides to build a skyscraper on a city block, and so begins buying up the lots that make up the block.

"That's assemblage," says Jay Dushoff, an attorney who specializes in condemnation cases but who is not involved in the Ken Parker-SunCor imbroglio. "In the old days, a developer got to the owner of the last parcel, and he might have to pay through the nose. It was the developer's tough luck. Nowadays, the developer just cries to the municipality."

Dushoff says more and more developers are coming up with reasons the entire community would benefit by their ownership of a property. Then the city or county--which must prove a public use and necessity for the condemnation--takes possession of the land and turns it over to the developer.

Dushoff cites a case he's handling in Scottsdale, where a hospital wants to expand onto property that's not for sale, so the city is condemning it on the hospital's behalf.

"That's not what eminent domain was intended for," he says. "It was intended either for governmental structures--schools, courthouses and so on--or for slum clearance."

To show how things have changed, Dushoff describes a case eerily similar to Parker's: A county tried to condemn private property so a road could be built to serve a housing project. The developer indemnified the county and paid the costs of the condemnation, but an appellate court ruled that the condemnation amounted to "constructive fraud," since it was done to benefit the developer.

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