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Assistant City Attorney Kent Reinhold now dismisses that practice as bad bookkeeping. "Unfortunately, under the semantics of the time, it all kind of got lumped together as mountain preserve when some of it was being bought for an entirely different purpose," Reinhold says. "But because it was going to be kept vacant or because it was natural desert, everyone thought it would be included in the preserve."
Including the drafters of Chapter 26 of the city charter; the amendment passed in 1985 to protect the preserves.
"We were trying to cover all the bases so that when we did this we would have some definite boundaries," says Penny Howe, who chaired the drafting committee and who remains on the Parks Board.
The first section of Chapter 26 defines the preserves.
Item (a) reads, "That real property owned by the City at the time of adoption of this Chapter lying within any generally recognized mountain preserve area."
Items (b) and (c) referred to lands bought with the 1979 and 1984 bonds.
Item (d) is "That real property designated as 'Mountain Preserves' by the City Council by ordinance upon the recommendation of the Parks and Recreation Board."
And until this year, there seemed to be no question of what that meant. This March, the Parks department began to help the Phoenix Police Department extend its academy into the boundaries of the Phoenix Rod and Gun Club. Both have leased land on South Mountain from the Parks Department since 1948, long before anything there was designated off limits.
When the board met to discuss the proposal in May, Mike Goodman, an activist who rides herd on South Mountain issues for the Phoenix Mountains Preservation Council, was surprised at what he heard.
"The Parks Department came up with this amazing solution saying that the entire mountain park is not part of the preserve system and therefore it didn't have to deal," he says. "Since it wasn't in the preserve system, they could do what they want anyway."
The City Council in 1988 had passed a resolution keeping South Mountain as preserves, and Chapter 26 required an ordinance. Since only a resolution had been passed, South Mountain was not a preserve--yet--it was a park.
The activists were dumbfounded, and the logic seemed to fly in the face of general understanding.
Former mayor Goddard, whose council passed the resolution, expresses his own surprise at that conclusion. "If that was in any way legally insufficient, we were unaware of it," he says. "And in fact the thought was that this was what was needed to enforce the ordinance. I'm not sure why the city attorney would tell us one thing then and another now."
It was a turnabout conclusion for Colley as well. "I am somewhat amazed that there still remains the concern whether South Mountain Park is a part of the Phoenix Mountains Preserve system," he had written in a 1992 letter to the PMPC. "Let me reassure the Phoenix Mountains Preservation Council (PMPC) that South Mountain Park is a part of, and included in, the Phoenix Mountains Preserve system. The Phoenix City Council, in its resolution of 1988, made it clear that South Mountain Park is a part of the preserve system. I fully support this resolution, as does the staff of the Parks, Recreation and Library Department."
At the May 1998 Parks Board meeting, Colley had dramatically changed his tune, and told the activists that neither the 1988 Resolution nor Chapter 26 categorically protected South Mountain as preserves. "Chapter 26 isn't worth the paper it's printed on," he reportedly said.
"I found that rather offensive particularly since I was the chair of the committee that wrote the chapter," Penny Howe says.
Until the City Council passes an ordinance, according to the city, South Mountain is a park not a preserve.
"The designation hasn't happened," says Parks Deputy Director Jim Burke. "We're not writers of any of that language," Burke says of the charter amendment and the resolution."
Kent Reinhold of the City Attorney's office, says, "The people who may have signed off on that are long gone."
In February of this year, the Parks Board agreed to look into forming an IGA or intergovernmental agreement with the Washington Elementary School District. The school district wanted to build two schools near Seventh and Peoria avenues, where the Charles M. Christiansen Trail 100 spills bikers, hikers and horses out of the Mountain preserves and into Mountain View Park.
Mountain View Park was purchased by the city in the 1960s, before any talk of preserves, and in 1976, three acres on a south corner were filled with lawns and playing fields and parking lots like any traditional community park. The remaining 41 acres were left as natural desert, and when the preserves came into existence, those desert acres were marked with signs saying they were part of it. Even so, the Parks Board decided to develop it further as recently as 1993, but never found the funds to do so.
Enter the Washington Elementary School District. Its schools needed more space for playing fields than they could rustle up on their own and so they came to the Parks Department. Parks had space but no money to develop it; schools had money but not enough space. It could have been a win-win situation except for one legal question: Was the undeveloped portion of Mountain View a free-standing park or had it been absorbed into the mountain preserves? If it were a park, the deal could go through the Parks Board. But if it were preserves, the deal would have be run past the voters.