By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
All these years we thought we knew them.
The Phoenix Mountain Preserves used to consist of 16,500 acres of South Mountain and 7,000 more acres in the mountains up north--Shaw Butte to Squaw Peak, Shadow and Lookout Mountains.
Now we're not so sure.
They were cobbled together over more than 50 years from large chunks of federal land, city parks and private lands bought with $70 million worth of bonds issued in the 1960s, '70s and '80s.
They are inarguably one of the most remarkable amenities of life in Phoenix--mountains right in the city, a testament to a generation of horsemen and planners who envisioned the urban sprawl that lay ahead and moved to do something about it.
Those tracts of open space are so jealously guarded by Phoenicians that in 1985, after a stream of requests to develop portions of them, city voters decided to lock them up for good with an amendment to the City Charter, which functions as a constitution of sorts. According to that document, by law, there could be no alterations to the preserves without a vote of the general electorate. A year later, after a golf course showed up on South Mountain, the outraged voters went back to the polls and amended their amendment to make double damn sure that no one would touch the preserves again without clearing it with the voters.
So it's protected, right?
Not according to the Phoenix City Manager's Office, the City Attorney's office, or the director of the Parks, Recreation and Library Department.
Two debates this year have tested preserve boundaries.
The first was a squabble over whether the city police department could extend its training facility on South Mountain. Activists attending Parks Board meetings were astounded when James Colley, director of the city's Parks, Recreation and Library Department informed them that South Mountain was not really preserve land, and therefore not subject to the most stringent regulations.
The second fight is going on now over plans by Washington Elementary School District to build two new schools on the north side and extend its athletic fields into a city park, parts of which may be in the preserves. The city says the questionable tracts are on park land, but the Phoenix Mountains Preservation Council (PMPC), a citizen's watchdog group composed of many of the same people who pushed to build the preserve system in the first place, say otherwise. No one opposes a school. But there is a legal technicality that could set a dangerous precedent: If the land in question is preserve land, the deal could not go through without the approval of voters in a general election. And if it is possible to make an exception for school kids here, what situations could arise later?
The PMPC found a lawyer to plead its case to the Parks Board; the City of Phoenix hired a fact-finder to listen to the lawyer, and the Parks Department, and the school district, and the residents of the neighborhood near the park and then advise the Parks Board on who's right. Kent Reinhold of the City Attorney's office represented the Parks Department, and he laid out his client's position.
Astonishingly, the city holds that:
* The definitions of mountain preserves in the City Charter are vague and perhaps unconstitutional.
* What most people think of as preserves and what has been labeled as such on commercial maps, official city quarter section maps and city ledger sheets really consists of parcels bought for various purposes such as parks or flood plains, and may not pass muster as preserves lands.
* The ubiquitous signs announcing that "You are now Entering the Phoenix Mountains Preserve" were sometimes put up on non-preserve parcels just to inhibit use.
* A $950,000 survey of the preserves used to sue private citizens over property encroachments on preserves land didn't really set boundaries.
* South Mountain may not be preserves because the City Council declared it so by resolution instead of by ordinance; the city charter does not define the difference.
The fact-finder, paid $19,000 by the city, sided with the city, and the Parks Board voted to enter into agreement with the school district. The Phoenix Mountains Preservation Council is threatening to take the city to court over that decision. The outcome would redefine the preserves.
If a judge found for the PMPC, then the "generally recognized" boundaries of the preserves would hold. If he found against them, then the city would be free to make that decision without the consent of voters.
That there's any debate at all is a surprise to the people who wrote the charter amendment forbidding preserve development, to the mayor who presided over the amendment and subsequent council resolutions to protect the preserves, and to the retired parks and other city employees who administered the preserves through its formative years.
"They're telling us there's no preserves boundary," says Del Seppanen, who worked for the Parks department for 25 years and supervised the preserves. "I know darn well there is, because I worked there all those years."
Does this mean someone wants to bulldoze the preserves to put up more red-tile roofs?
No. It's about discretion over land. Changes within the preserves have to be decided by the voters. Changes to non-preserve parks are decided by the Parks Board, which is appointed by the mayor to oversee the Parks Department. Land owned by other departments--at issue are water towers and flood control basins, for example--aren't subject to either.
At its simplest level, reclassifying preserves land makes it easier to put swing sets and basketball courts in some parks. In a more sinister light, preservationists worry that it could facilitate deals with developers along the preserves periphery and golf courses in the flood plains. There are no such apparent deals in the works.
Theoretically, it also allows the city to sidestep the voters. If Mountain View Park were preserve land, the city could still deal with the school district if the voters approve it. But would they? The more expedient approach has already been demonstrated with Sumitomo Sitix and the downtown parking garage, where technicalities were invoked to avoid having to appeal to a stingy voting public.
Reclassifying land could also change how decisions are made regarding the telecommunications towers on top of South Mountain, in a period when the City of Phoenix is approving new phone services and otherwise accommodating the burgeoning digital and fiberoptic industries. If the park leading up to the towers is not deemed preserves, it's easier to run new cables up and over the mountain. More than one high-tech corporation is looking at exploring such issues with the city.
And that there's debate at all casts doubts on the sanctity of the proposed Desert Preserve that Mayor Skip Rimzsa and certain councilmen and preservationists would like to carve out of the city's northernmost reaches with help from Governor Jane Hull's Growing Smarter initiative. What protections will that land have? And how much will Phoenicians trust the city if the preserves they have already are being scrutinized?
The City Manager's office says don't worry; a solution is in place. The Parks Department will analyze every parcel of land to decide if it is preserves. They'll run that past an ad hoc citizens committee and make recommendations to the Parks Board, a group of political appointees, who will make recommendations to the City Council.
The City Council will decide what are preserves and what aren't, pass an ordinance declaring final boundaries; and then, after the politicians have redefined the boundaries, only a vote of the people can change them.
The battle lines are forming along generational lines. One generation of Phoenicians established the preserves and thought it had locked it up for good. And now the new generation of power brokers wants to unlock the safe, take out the family heirlooms, figure out which they want to keep and which they want to give away.
The older generation says that's not legal.
Ruth Hamilton, now 86, helped build the preserves and fought in the 1980s charter amendment wars; Governor Hull handpicked her to spearhead the Growing Smarter Initiative. And she's hopping mad over the city's plans to redefine the preserves.
"If they break the law, how the hell are we going to deal with the rest of the world?" she says.
Jim Colley, the Parks Department director, who has worked on the preserves almost as long, sides with his employer.
"This department is not going to do anything--because I've been here 20 years--to hurt the preserve."
The first 13,000 acres of South Mountain were acquired by the City of Phoenix from the federal government in a screaming deal during the Depression. Ever since, South Mountain has been touted as the largest municipal park in the world. In 1960, the city managed to annex Squaw Peak and North Mountain parks from Maricopa County, and horsemen's and citizens' groups were already worrying that development was making its move toward the desolate desert mountains north of the city limits.
In 1966, the City Council passed a resolution to buy and preserve "open space," but had no money to back up the desire. Four years later, the city hired a planner named Paul Van Cleve to recommend lands for purchase, and his 77-page report identified about 10,000 acres roughly corresponding to the current preserves. But the city still didn't have the money to actually buy any land and, instead, started cobbling together parcels in any way it could--acquiring federal mining claims and using bonds from other sources--and then tried to stack the deck against developers.
The council, in 1971, started imposing moratoriums on building in the areas designated for preserves. Ultimately, the moratorium produced a lawsuit by a young lawyer named Jay Dushoff, who represented landowners near Squaw Peak Park, and the city backed down.
But the ante was upped. After enthusiastic public hearings, the council passed a resolution in 1972 to approve the Van Cleve recommendations, then a year later passed $22.5 million in bonds to buy open space. A second bond issue failed in 1975, and the city scaled back the Van Cleve plan, dropping pretty parcels at Lincoln Avenue and 24th Street and north of Thunderbird Road to Lookout Mountain. The city passed three more bonds in 1979, 1984 and 1988 for another $40 million and continued buying.
However, the accumulating preserve land was not protected, and the council and the PMPC found themselves frequently fending off the advances of well-meaning developers or bureaucrats who wanted to build rodeo grounds or ramadas or golf courses or restaurants in the preserves. And so in 1985, a citizen committee wrote Chapter 26, the amendment to the city charter that was supposed to end such notions.
Chapter 26 defined the mountain preserves, then asked the Parks Board to establish its uses consistent with a number of preservationist criteria. It also let in those city departments that needed to do work there. It forbade sale of the preserves and established those situations in which land could be traded for the betterment of the preserves.
Penny Howe has been a Parks Board member since 1985. She also chaired the committee that wrote Chapter 26. And as she recalls, on the eve of bringing the finished language to City Council, her committee was approached by then-mayor Terry Goddard, who had a request.
Resort developer Robert Gosnell had been negotiating a golf course on South Mountain next to his Pointe Resort, and the deal had to go through. For expediency, the committee caved in and the charter amendment went through the council with a grandfather clause allowing Gosnell's trade.
The ensuing ruckus--the voters had proscribed development and it was going through anyway--went all the way to the state supreme court. Gosnell got to keep his golf course, but the voters pushed through a referendum, led by Ruth Hamilton, that cut off all trades in the preserves.
Goddard took a political pounding.
"The main item was very profound outrage that any part of the preserves would be used for recreation," he says now.
But the improved charter soothed the outrage. Donna Larson, who was assistant to Parks Director Jim Colley at the time says, "It was almost like a peace treaty. The impression of this document was, 'We don't have to worry any more.'"
They worried anyway. In 1988, as a master plan was being written for South Mountain, the City Council, again under Goddard, passed a resolution affirming that South Mountain was preserves.
"It's unequivocal," Goddard says. "There should be no question about it."
Actually, there were minor questions. In the late 1990s, a city councilman discovered that his backyard jutted into the preserves and so the Parks Department put aside other matters to get surveyors out to compare the preserves' boundaries on the city quarter section maps with the preserves' boundaries on the ground.
The survey cost $950,000 to complete and identified about 250 encroachments.
In a 1992 letter to Jane Beach, who was then president of the PMPC, Parks Director Jim Colley referred to that project as "the official survey of all mountains preserve lands." Then he went on to write, "Project is complete with final maps and boundary points identified."
About 50 lawsuits were filed. Homeowners were forced to move walls and shrubbery or buy the property from the city. Then,in 1995, when all the lines were settled, the changes were put before the voters and approved.
In 1995, in order to compile an oral history of the mountain preserves to keep in a new parks education center at South Mountain, Jim Colley interviewed two of his former lieutenants, Del Seppanen and Bernie Freese, on folding chairs at North Mountain Park. Freese and Seppanen are both retired, but they had both been key to the building and maintenance of the preserves, and the point of the video was to capture their recollections for future generations.
Late in the interview, Jim Colley, who is a big and good-natured Southern gentleman, waxes philosophic. "My concern is that as the population continues to grow and people keep coming here, that they see these mountains and not understand."
Freese and Seppanen seem not to follow him.
"What I'm saying," Colley continues, "is that as the population continues to grow, even though we have a charter amendment that says people have to vote on what happens, the population may be willing to make that decision to change it."
Clearly, the possibility bothered Colley, who has long run an efficient and creative Parks Department.
But the changes he feared didn't seem to come from the new people. Within three years his official comments regarding the preserves' boundaries would reflect a new official city policy whose origins are unclear.
There had been no question within the minds of Colley's employees while they were building the preserves.
"When the more or less final establishment was done," says retired Parks supervisor Seppanen, "that line was put on quarter section maps, and every one of those parcels inside those lines has a number. And regardless of what monies those lands were bought with, they were based on those numbers."
"The mountains preserve boundary was defined when I was buying," he says. "I bought mountain property for 14 years and I worked off the quarter section map as my real authority on the boundary written there. I had to buy to the boundary line."
There were often questions of where the money to buy those lands would come from. The city owned some already, annexed some, patented claims, and bought what it could. And indeed Tomich's ledgers from that time reflect the various sources of the monies used to buy preserves land. One document labeled "Source of Funds Through 12-31-83/ Phoenix Mountains & South Mountain Preserves Program" shows park bonds, storm sewer bonds, and federal grants in addition to those bonds issued solely for open space or preserves land.
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.
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.
The Parks Board was to vote on October 29. That morning the Arizona Republic ran an editorial that shouted, "To those who will argue tonight that 10 acres of less than pristine desert is inside the boundary of the sacred Phoenix Mountains Preserve, we have a bit of advice. Save your breath."
Even the board members uncomfortable with the fact-finder's opinion saved their breath.
Parks Board member Eric Gorsegner concurred that the land in question was less than pristine, but says, "Sure it's a crappy piece of land, but if you set that precedent, you've got a new crappy piece of land in the future. You just keep pushing the boundary back."
But he was absent on the night of the vote. And Penny Howe, the preserves' longtime protector excused herself, because, as luck would have it, her husband teaches eighth grade literature in the Washington School District.
Even if Corcoran uses the title of judge, he was acting as a fact-finder. His opinion was an opinion to the Parks Board and not a legal decision.
The Phoenix Mountains Preservation Council has decided to retain Jay Dushoff and is considering taking the city to court. No case has been filed. If and when it is, the decision would decide the shape of the preserves. If Dushoff won, the generally recognized preserves would be reinstated. If he lost, the boundaries would be up for grabs.
Ever efficient, the Parks Department is already working on Plan B.
One recent evening, Deputy Parks Director Jim Burke lays a color-coded computer-generated map in front of the Desert Preserves Citizens Advisory Committee. The committee is a collection of hikers and bikers and interested professionals that the department has appointed to provide citizen input on a variety of decisions ranging from the new desert preserves envisioned for North Phoenix to trail work on Camelback Mountain and now on the mountains preserve boundaries as well.
Burke's map this evening shows a diagram of Lookout Mountain, the northernmost outpost of preserves in the city; if Van Cleve's 1972 plan hadn't proved too expensive it would have been connected to the bulk of preserve land to the south. Instead it sits as a tiny island in a sea of red-tiled roofs.
On the map, the parcels that were obtained to make up the larger unit have all been numbered and identified as to what monies and what City Council actions brought them together. There's a section of green that Burke identifies as a city park of similar status to Mountain View--not preserves. There's a patch of blue that he identifies as a water tower, the road leading up to it--not preserves either. The rest of the parcels are brown and labeled as to the various bond issues that purchased them. Those, he concedes, should be preserves.
Granted, he's chosen this tract of preserves and park as an example for simplicity's sake. There is far more question due south toward Mountain View Park: land that was once mining claims obtained from the feds, the flood plains, North Mountain Park, some more water properties, all of which Assistant City Attorney Reinhold maintains are not yet officially preserve lands until City Council declares them such by ordinance. Carried to an extreme, if all of those lands were permanently excluded, the preserves would be a tiny and fragmented memory of itself.
Curiously, Chapter 26 uses the word ordinance in its definition section. Section 3 of Chapter 26, "Uses," sets out a single task to the Parks Board, which is to recommend acceptable preserve uses along a set of criteria to the City Council, which the council would then codify in an ordinance. The Parks Board started that job in the late 1980s and then interrupted itself to tend to the boundary encroachments.
City staffers talk as if Chapter 26 also demanded the boundaries be declared by ordinance, and that is why they claim that what happened before is irrelevant.
"In 1985, when Chapter 26 was passed, it became a different ball game," says Colley. "Because to implement Chapter 26, you had to do a boundary survey [and make] recommendations about the boundaries from the Parks Board to the council."
The chapter doesn't say that--it says the council is to ordain uses--but the city interprets the chapter as if it asks for boundaries as well.
"What we're working toward is filling in the obligations of Chapter 26," Burke concurs, "getting an ordinance to council that designates the boundaries."
To get there, this committee will look at Burke's maps, and the city staffers will recommend to the Parks Board what should and shouldn't be included in the preserves. The board will make recommendations to City Council. The City Council will craft its resolution. And as politics go, it will make its decisions based on how popular or unpopular those decisions will make council members with their constitutents and campaign contributors.
Kent Reinhold from the city attorney's office assures New Times that in sorting out the preserves boundaries, the city would err on the side of the preserves. "Let's put it this way," he says. "Lands which the city acquired by some means other than purchase from private sources--the mining claims, from the county through annexation, which would be North Mountain Park--if the city declared those to be mountain preserves through ordinance, then I don't think there's any question about it."
Nor does the Parks Department have draconian plans for the preserve lands. "If as we go around, if the Water Department land can be officially incorporated into the preserves and still make an exception where the Water Department can still maintain those facilities, then I'm going to urge that it be put into the preserve boundaries," says Jim Colley.
But Chapter 26 already gives the City Council full access to the preserves to make sure that the water department can already maintain those facilities.
So what's the point? Discretion over city properties: The city could rebuild its water towers without even considering the Parks Board or the pesky oldtimers from the PMPC who seem to be hovering over its every move, staking out its meetings and taking notes. One supposes, though, if the water properties are cut loose, down the road, the city would be more free to explore private-public partnerships to manage them without Parks Board interference.
Theoretically, if lands along the edges were written out of the preserves, the city would be more free to deal with developers, who still loom large in the fears of the mountain preserves activists.
If the city decides to hold the 27-acre flood control land above Mountain View Park out of the preserves, what's to prevent them in the future from building much-needed facilities such as soccer fields there?
And what of the communications towers on top of South Mountain? Their pads sit on South Mountain Park land. The federal patents that gave the land to the city in the first place say that they have to stay there for "public convenience." Some of the 101 tower licensees provide governmental communications, the rest commercial TV, radio, pagers and a whole array of telecommunications that defy distinct boundaries.
Jim Burke ponders whether the land beneath the tower pads will be judged to be preserves in spite of its grandfathered use. "And if that happens, what does that mean?" he asks. "Does that mean we can never build another tower there or fix their road or bring up another generator?"
SRP and US West both have been allowed to replace their old-fashioned wires with fiberoptic cables.
According to Dale Larsen, assistant parks director, those cables are not used for commercial purposes; the phone lines merely provide phone service to the tower facilities and the SRP cable mostly connects that company to its service fleet. Furthermore, the Parks Department worries those cables could be used for other purposes, and indeed, enterprising telecommunications firms have already asked if they could piggyback on them.
Cox Communications has looked into running fiberoptics up to the towers and down into Ahwatukee to provide back-up transmission power for local broadcasters in the event of a power failure. So far, the Parks Department has not figured out if that would be legal to install under Chapter 26.
Good question. It would be easier to accomplish if South Mountain were deemed to be park and not preserves, though that is not likely to occur.
Last week, a Cox affiliate received a license from the City of Phoenix to incorporate telephone service into its array of telecommunications offerings. According to Cox vice president Ivan Johnson, that service does not require a cable over South Mountain, but he admits that the company could find other uses for that cable if it were there.
If such uses were deemed beneficial for the city, there is a mechanism to get them done: a vote. But if the towers were separated altogether from parks, as if they were property of some other department, that would make other decisions easier.
The Parks Board's official position since 1972 has been that it will remove the towers as technology permits. So far, technology is moving toward towers and not away. And the board and the city are already fighting over the paltry $850,000 a year that the towers bring in. The board wants it to be redirected to South Mountain rather than into the city's general fund, where it now goes.
Barring a successful lawsuit by the Phoenix Mountains Preservation Council or any other group, according to the city interpretation of Chapter 26, the Parks Board will make recommendations to the City Council, and then the City Council will decide the preserves' boundaries once and for all--with no voter input.
The Parks Board is very much aligned with the Arizona establishment and very politically connected. Eric Gorsegner is an SRP lobbyist; former Department of Environmental Quality director Ed Fox is a high-profile Republican and an employee of APS. Both are quick to excuse themselves when their employers' names come up. Chairperson Ramonia Thomas is a prominent Republican and an executive in the state Department of Economic Security.
Board member Kevin DeMenna's connections are a bit more disquieting. In the past he has lobbied on behalf of organizations seeking to put a toll road through or around South Mountain, and for Sumitomo Sitix, whose north Phoenix plant the City Council smoked past the voters in 1995. Although DeMenna claims he no longer represents many of those clients, they are still listed after his name in the database of the Arizona Secretary of State. Which may not suggest ill intentions.
DeMenna also lobbies for the City of Phoenix, and to his credit, he is a bright and vocal advocate of smart money management, pushing his fellow board members to try to maximize department revenues and do more market and technological research before making their decisions.
Money talks, we all know, and sometimes talks too much. But it chooses who it will talk to and whose pockets it jumps into.
But the boundary decisions, and ultimately the decision of what we want to sock away into preserves and what we want to have control over rests with the City Council. Three council members contacted by New Times claimed not to know too much about the boundary disputes yet. The mayor's office shifted calls to the city manager's office.
At last Thursday night's Parks Board meeting, Assistant Parks Director Dale Larsen addressed the board on whether it should hire a consultant to advise it on the telecommunications industry.
He related the history of the towers on South Mountain, and then reminded the board and the other staffers that South Mountain was part of the Mountain Preserves by order of a City Council resolution in 1988 and was therefore restricted by Chapter 26. Director Jim Colley waited politely until Larsen had finished. Then he quietly reiterated that the 1988 resolution had no legal bearing and that South Mountain was still not preserves.
Penny Howe bristled.
"I think it's pretty dangerous to say that South Mountain is not preserve when we're talking about these matters," she sputtered.
"That's a legal issue," Colley shot back.
Chairperson Ramonia Thomas stepped in and tabled the discussion.