Deconstructing the Phoenix Mountain Preserve

More than a decade ago the creators of the mountain preserves nailed down their boundaries. Now a new generation of city staffers isn't sure they exist.

The school district and the Parks Department said it was park, the Phoenix Mountains Preservation Council said otherwise. There could be precedents set, the PMPC reasoned, and they weren't about to let that happen.

Maxine Lakin, PMPC's current president, and its octogenarian warhorse Ruth Hamilton went to meet with Parks Director Colley and his deputy Burke.

"They said, 'Would you compromise and say this much is preserve and this much is park?'" Lakin recalls. She responded that she didn't have the authority to make that decision--and didn't think they did either. And as the conversation continued, she realized that the Parks staffers were suggesting that adjacent North Mountain Park might not be preserves either.

The nice gray-haired ladies were stunned, and the city held fast.
In a May letter to Leslie Spencer-Snider, another PMPC member, City Manager Frank Fairbanks wrote, "Del Seppanen, a retired 25-year employee of the Parks, Recreation and Library Department, is a member of your volunteer group. Mr. Seppanen has confirmed with Messrs. Colley, Burke, and Swanson his concurrence that the land was purchased for park purpose and is not a component of the Mountain Preserve land."

It was news to Seppanen.
"I never said that," he claims. Seppanen knew it had been bought as a park, but felt it had been another of the seeds that the city built preserves from.

The Phoenix Mountains Preservation Council brought in attorney Jay Dushoff to represent it against the city and school district. The city hired retired Arizona Supreme Court Judge Robert Corcoran as its fact-finder and mediator; paid him $200 an hour for research and $250 an hour for meetings. The clock started.

Dushoff focused on the charter definitions of what was "generally recognized" as mountains preserve to try to prove his case. And to establish those boundaries he asked the city for its maps of the preserves; the city mysteriously told him there was none.

And so Dushoff requested from the city copies of its quarter section maps, gathered reams of commercial maps that had been approved by the city, even Parks Department maps showing hiking trails, all of which seemed to show the same "generally recognized" preserve boundaries that had existed since the 1970s. He also obtained maps of the 1990 survey that the Parks Department had commisioned and that the city used to sue homeowners over preserve encroachments. That map showed a line drawn neatly between the developed and undeveloped sections of Mountain View Park, with one side inside the boundaries and one side out. Furthermore, the contracts to the businesses hired to do the survey clearly specified that they were surveying mountains preserves.

Dushoff also called attention to the ubiquitous signs marking those spots where the preserves meet neighborhoods.

But according to Kent Reinhold in the City Attorney's office, none of it meant a thing. The term "generally recognized" was vague and likely unconstitutional. He held that since Mountain View had been bought as a park, it was meant to be a park and had never been reclassified as a preserve. Furthermore the 27 acres north of that park weren't part of the preserves either because they had been bought as flood control lands. And North Mountain Park just to the east was park as well, not preserves. To become preserves, they, too, would have to be made preserves by ordinance of the City Council.

That alarmed Penny Howe.
"The provision of 'generally accepted' was never questioned by anybody during the time we put together that charter amendment. It wasn't questioned by their attorney, the city attorney, and it wasn't questioned by staff. And now Kent is saying that we don't even know if it's constitutional. Well, I'm sorry. If your office helped to write it, why would your office put something on the books that you claim now is not constitutional?"

The survey, the city claimed, was not a survey of preserves but of city property in general, and could not be interpreted as a firm map of preserve land.

As Deputy City Manager Alton Washington explained to New Times later, "It didn't distinguish between those properties owned by the water department, for example, or the streets department or through bond programs for those particular entities."

And the signs? The Parks Department had mistakenly put them in places that were not preserves, but that they wanted to restrict as if they were.

It seemed another revision of history.
Bernie Freese was a landscape architect in the Parks Department until 1992. He had worked for Paul Van Cleve on the original preserves plans and then had stayed on with the city to see them through.

"As far as we were concerned," he told New Times, "as far as staff was concerned, as far as the public was concerned, those mountain preserves signs were put there to indicate mountain preserves. If something was a few feet off the boundary, that was one thing. But parks staff was pretty careful."

Judge Corcoran sided with the city and school district and opined that Mountain View was park and not preserves. Neighbors had enthusiastically signed petitions in favor of the schools--they need them--and the judge cited that as evidence that they did not generally recognize the area as preserves.

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