By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Lot-splitting and all the problems that come in tow are exactly what have Carefree and Cave Creek worried.
"We're concerned about wildcat subdivisions," Short tells New Times. "Our council is extremely concerned about that."
Cave Creek and Carefree officials are examining the possibility of annexing the mountain. A successful annexation would subject Gold Mountain Estates to the zoning ordinances of the towns. But that might not be possible -- owners of at least 51 percent of the acreage to be annexed would have to approve it, and Smith owns the majority of the property in the disputed area.
"I don't know what they would require of me," says Smith. "If they said, 'We want to annex you, and our purpose is to tell you that you can't ever do anything up here,' then yeah, I'd be opposed to that.
"If they wanted to annex me and say, 'You know, we really don't like how you've done this, and we want you to do this,' then I'm fine with that. That's part of the development of any property."
Annexation of Continental Mountain became an option after the Town of Carefree hired consultants to review Smith's proposed subdivision. Among the members of the team were Dennis Zwaggerman and Robert Brittain, former employees of the county's planning and zoning department. Brittain helped create the county's hillside ordinance in 1983.
Carefree Mayor Ed Morgan says the town is holding the county's "feet to the fire, to make sure something is done."
On September 8, the consultants submitted their highly critical report to Maricopa County Supervisor Don Stapley, whose district includes Continental Mountain.
"The proposed subdivision plat is incomplete and premature," the report says. "Numerous studies and further planning should be required by the County prior to further review or processing of proposed plat . . . given the massive roadway disturbance already existing on the mountain, the Town of Carefree encourages the county to pursue appropriate up-front mitigation along with financial guarantees as a condition of further review by the County."
Brittain also wrote a June 30 report for Carefree on the grading of the road up Continental Mountain: ". . . a zoning clearance should have been required by the Maricopa County Department of Planning and Development . . . the grading should have been subject to County's Hillside Standards."
The hillside ordinance prohibits grading on a slope of more than 15 percent. The consultants say the average slope for Smith's proposed home sites is 41 percent. The average slope of the driveways is 38 percent. Carefree's consultants say only six of the planned home sites will be accessible to fire and rescue equipment.
County officials maintain that a loophole in the rules axes their authority in this case. In a March 4 letter to the state, Joy Rich, Director of the Maricopa County Department of Planning and Development, claims the road up Continental Mountain "does not fall under the 'Hillside Development Standards' of the Maricopa County Zoning Ordinance. The work that Mr. Smith did was no more than 'courtesy grading' of that easement, therefore, a building permit was not required."
Janet Mohr does not view the slash across her property as a "courtesy."
Even without a planning permit, Smith was required to seek approval from other county agencies before the road grading began. He needed an earth-moving permit from the Environmental Services Department and a flood permit from the Flood Control District.
Smith's company began grading the road in October 1998.
But the county didn't issue preliminary permits until months after the grading began, records show.
The county took no action against Smith's company for obtaining permits after the fact.
"Because of the circumstances with planning, I couldn't use a stop-work order from Building and Safety," says Chuck Feuquay, head inspector of the county Flood Control District. "That's my only real hard tool to get them to stop right now. When zoning said it's not covered, then that left me out here, a rattlesnake without teeth.
"Unfortunately, under the drainage regulations, it was still supposed to be permitted. But the regulations say that because it was an existing roadway that's already cut, there's nothing that says they can't improve on it. So it's a technical thing. Theoretically, yes, they should've gotten a permit."
Grading without the necessary permits isn't uncommon, says Feuquay.
"It happens every day out there," he says. "It's not supposed to be done that way."
While the county claims its hands are tied, another property owner along Fleming Springs Road is alleging foul play. Jack Davis wrote repeated letters of complaint to the county. In one letter, he accuses Supervisor Stapley of intervening on the developer's behalf.
The state Department of Real Estate is currently conducting two separate investigations involving Stapley. In one case, Stapley's connections with a wildcat subdivision near Queen Creek are being probed. In another, Stapley's license application is being scrutinized for alleged false information. Stapley has said the investigations are unfounded. But his alleged involvement in the Queen Creek deal has made him an easy target for opponents of Gold Mountain Estates.
In a December 1998 letter to planning director Rich, Davis accused the county, Stapley, Smith and others of collusion.
"Please consider this letter to be a complaint over what appears to be a collusive effort by Mr. Smith . . . and the County to circumvent the Ordinances that are meant to protect our area from rampant, independent development."