By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
In March, Janet Mohr decided to landscape her property.
What she did won't make the cover of Better Homes and Gardens, but she's a real estate agent, not a landscaper. At the base of Continental Mountain, Mohr rolled pumpkin-size boulders onto an unpaved road, technically called Fleming Springs Road, that crosses her land.
Mohr still hopes to build a dream home on her land. But until last October, she figured the mountain would be her closest neighbor. Now she fears her future home site, located in Maricopa County just north of the municipal boundaries of Cave Creek and Carefree, will be the welcome mat of an unwanted mountainside development.
Mohr bought her 10 acres for about $110,000 on December 31, 1997. At that time, she says, the dirt road running through the property was little more than a rutted jeep track used by tour companies to cart sightseers up to the abandoned Gift Lode gold mine.
Other than the city-slicker excursions, there hadn't been much traffic on the primitive path, says Mohr.
Then, last October, Phoenix developer Wayne Smith began the first phase of what he says will be an upscale 380-acre subdivision called Gold Mountain Estates. Eventually, Smith says, his company, Canyon State Equipment, will create the "premier development" in the Carefree area.
"He said that he wanted permission to cross over my property to take a look at his," says Mohr of her first meeting with Smith in October 1998. "I knew that he was going to be bringing equipment trucks onto his property. I specifically told him not to touch any of the vegetation on my property."
Mohr gave Smith permission to cross her land. The next day, she says she visited her property and was furious to find the jeep track had been widened and graded into what she considers an unsightly thoroughfare.
In the ensuing months, the developer extended the road from Mohr's property up the mountain with an excavator and a hammer hoe.
And now, when residents and politicians in the neighboring towns of Carefree, Cave Creek and Scottsdale step out for a breath of fresh scenery, they don't like what they see.
Road graders have knocked saguaros down the slopes of Continental Mountain. Some cacti are buried up to their armpits in rubble. A few others lie mangled and rotting on the road. Roots from roadside vegetation dangle uselessly where there used to be earth.
Although residents say the road appears to violate county hillside ordinances, which can apply to private property, county officials allowed Smith to grade it anyway. County officials say the road is a "driveway" exempt from the ordinance.
And there are other permitting irregularities.
Even though the "driveway" winds through private property, the county requires flood-control and dust permits before grading can begin. But when county officials discovered that Smith had begun grading prior to getting such permits, they failed to take any meaningful action against the developer.
Maricopa County's failure to prevent the scarring of Continental Mountain has residents frustrated. Some accuse county officials of "colluding" with Smith and bending their own rules so Smith can develop Continental Mountain.
If the county can't save the mountain, both Cave Creek and Carefree officials are exploring the possibilities of annexing the area to prevent further damage.
Dropping the boulders on the road was Mohr's way of telling Smith that his permission to cross her land had been rescinded. Mohr figured her land was private. Smith had no right to gouge a road through it, she says.
Smith wasn't impressed. His lawyer, Noel Hebetz, sent Mohr a letter on March 19, 1999, threatening a lawsuit. The letter claims Smith has a legal right to use her private property for access so Smith's property won't be landlocked. The dispute may end up in court.
This Battle of the Boulders is a skirmish in a larger war. Continental Mountain is a symbol of the simmering dispute between developers and preservationists over growth in Arizona.
Caught in the brawl, Arizona's counties find themselves taking the heat for weak zoning regulations that encourage haphazard growth.
Both groups acknowledge that counties have far less power to regulate growth than municipalities, but have different solutions.
The Sierra Club has an alternative plan, its Citizen's Growth Management Initiative, which is expected to go before voters in November 2000. The CGMI seeks to give counties more clout.
The Growing Smarter Commission, meanwhile, strives for a "balance" between demands of developers and realtors opposed to increased regulation by counties, and residents wanting more county regulation, according to Jack Pfister, chairman of the commission.
But all of this comes too late for Continental Mountain, a nascent martyr for the anti-growth cause.
Damage to the mountain is significant, and it could get much worse.
Wayne Smith's 380 acres sit in what the Arizona Department of Water Resources calls an "Active Management Area." All subdivision developers in such areas must prove that they have a 100-year supply of water to serve the proposed community.
Smith has yet to apply for his certificate of assured water supply. If he fails to show he has an adequate water supply, the subdivision cannot be approved by the Arizona Department of Real Estate. And if the state rejects his application, so will the county.
Residents fret that if Smith can't show he has adequate water, he'll take advantage of weak county laws by splitting the property into smaller pieces.
One way to get out from under the county's thumb would be splitting the property into five parcels. He then could sell each chunk of land without county interference, because the county doesn't regulate five or fewer lot splits. Whoever buys each parcel would then, in turn, be allowed to break his property into five pieces, sell those off, and continue the process until, conceivably, 76 five-acre lots are sold.
Or he could break the 380 acres into 36-acre parcels and sell those off. Either way, the end result is what's known as a "wildcat development."
"We have a lot of concern about [wildcat developments] because they're huge contributors to urban sprawl," says Sandy Bahr, the Sierra Club's conservation outreach coordinator. "It doesn't do any good to better manage growth in the cities and towns if you don't do anything in the unincorporated areas, because all you do is push it out to those areas."
Wildcat developments can create problems for both existing landowners and the ones who purchase the lots. There is no assured water supply. There is no electricity. No sewage system. Dusty, unmanaged roads cause pollution hazards and can be unsafe. Flooding can restrict access. And fire and rescue trucks might be unable to reach emergency situations in time, if at all.
Smith, who insists he's going to put a first-class, state- and county-approved subdivision on Continental Mountain, knows that some of his neighbors would like to strap him to a spiny saguaro. He didn't come to Continental Mountain to win popularity contests.
"I think a lot of people are upset with me because I'm the lightning rod," says Smith. "I'm the personification of what's going on up here. But they're more upset with the county, because they didn't understand what you could do in the county under the existing rules and regulations.
". . . People out here in Carefree and Cave Creek are upset because the rule book doesn't agree with what they think it should say."
Smith says, "I think the county is doing a good job."
Mohr has no doubt Smith is ready to pat the county on the back.
"The county is just bending over backwards to help him," she says. "They're acting very favorably for Wayne Smith. They need to make him comply with all the rules that everyone else has to comply with."
On paper, Gold Mountain Estates is a gated community of 56 upscale homes built on 380 acres of Sonoran Desert. Hillside lots offer impressive views of Carefree, Cave Creek and Scottsdale. A platoon of saguaros stands guard over the property. According to the developer, deer, javelina, mountain lion and even a bear will always have a home there.
But for Smith's utopia to exist on more than a plat map, he'll first have to prove that it can work. He must get his subdivision approved by Maricopa County.
On September 21, Smith met with county planning and zoning officials to discuss Gold Mountain Estates. The county officials expressed concern about a variety of issues, mainly the steepness of the terrain and access for emergency vehicles.
Ron Short, planning director for the Town of Cave Creek, didn't mince words when he spoke at the meeting.
"Both Cave Creek and Carefree are extremely concerned," Short told Smith. "We want you to withdraw your application [for a subdivision]."
Short fired off a magazine of complaints about the proposed subdivision: Smith has only one access to his property, and whether he can legally use the road winding through Mohr's land is still debatable; the increase in traffic will have a direct impact on Cave Creek; the roads are steep and unsafe; there is improper drainage on the mountain; there are unbuildable lots with "massive elevations"; sewage problems on the steep slopes could become a health hazard.
Short raised the guillotine that eventually may behead the subdivision -- water.
"Neither Cave Creek nor Carefree private water companies have a 100-year water supply," said Short. "Both towns are very concerned about the water supply and are commissioning a hydrology study on the aquifer they are using, which goes down every year."
Smith says he plans to drill wells. If the wells fail to have an adequate water supply, he says he may try to sign up with private water companies in the area. Or use Central Arizona Project credits.
But the fact remains -- Smith has yet to prove he has sufficient water to build a subdivision.
Without water, Smith might take the lot-splitting route. He says that because of the choice location, he'd have no trouble selling the parcels of land. But it's an option he doesn't want to pursue.
"I prefer not to do that because at the end of the day, whoever you sell them to is just going to split them," says Smith. "I'd rather take the whole parcel, and plan it, and know what you have, and have some semblance of control over it, rather than just sell it to a bunch of different people and hope they do a good job."
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."
Rich denies either she or Stapley was bending any rules.
"Supervisor Stapley has kind of taken a hard stance on this property," says Rich, noting that Stapley delayed a technical meeting on Gold Mountain Estates. "That would have the opposite effect of facilitating it. That's the only request I recall along those lines from the supervisor. Matter of fact, he was pretty upset about the grading."
Stapley claims he has no financial interest in the project and has never spoken with or met Smith.
But he's been active in the area.
In April, Stapley took a step that had unfortunate consequences for Janet Mohr. Records show he approved abandonment of a long-standing easement that Smith could have used for access to his property. Now, Smith's only current access is the road across Mohr's land.
Contrary to Davis's accusations of a "collusive effort" with the developer, Stapley says he doesn't approve of all of the methods employed by Smith's development company.
"I think it's unfortunate that under the current law, as it exists today, that road could be built," says Stapley. "I believe there could have been a better way to do it and accomplish what the property owners wanted to accomplish without scarring the mountain as significantly as they did. From a health and safety perspective, what was built there is a threat to the safety of the people."
With no authority to halt the subdivision, Stapley says he encouraged Carefree to hire its own consultant team and examine the possibility of annexing the mountain.
So is Supervisor Stapley speaking from the heart?
Don Sorchych, editor of the Sonoran Desert News, has been critical of the proposed subdivision. The crusading editor has earned the nickname "Don Sore Cheeks" from developer Wayne Smith.
Sorchych thinks Stapley's line is "bullshit."
"[Stapley] said he was going to force them to get a permit," says Sorchych. "What they got is a dust-control permit only, and then they never enforced that, ever. That was all just for frosting on the cake. Furthermore, nobody's ever seen a water truck [to control dust] up there. Matter of fact, it would be unsafe for a water truck to go on that road."
Wayne Smith is the eye of a tempest raging around him. The opposition rattles his cage over the project, and Smith calmly tries to allay its fears. When critics point out gaping wounds in his plan, an unfazed Smith offers Band-Aids.
There is no question that damage has been done to Continental Mountain. Smith admits "tremendous scarring is visible."
"But it's the only way up the mountain," he says.
Yet, when he walks along his controversial road, Smith says that he has taken every measure to maintain the beauty of the area.
"The trouble is, anybody with a preservation mindset is going to come up here and say, 'What are you doing to the side of the mountain?'" says Smith. "If you start from that basis, there's no way you can come up here and say, 'How did you save all these cactus?'
"The Desert Sonoran News calls it carnage. The truth of the matter is, we spent a lot of time and money carving this road out of the side of the mountain. Each bucket of material that was taken off of this road was placed where it is so that it didn't knock over a bazillion cactus or a bazillion trees. There's aesthetic value in looking over the mountain and seeing saguaros that look like grass."
The vista from the top of his mountain shows Smith plenty -- even the other side's point of view.
"I just think the Town of Carefree saw this road going in place and said, 'This guy up here's going to do some lot splits and turn this into a wildcat subdivision, and we don't want that to happen,'" says Smith.
"If you're Jack Davis or Janet Mohr or any of those people, the idea that 56 [homes] are going to be behind you really stinks. You know what? I understand that. But when they bought their property, they knew there was private property back there."
Janet Mohr is the antithesis of Wayne Smith. She's an in-your-face slugger who won't stop swinging until she's won the fight.
At one point, Smith's company offered to swap 10 acres on its property for Mohr's land.
It wasn't even an option.
"I don't want to do any kind of business with him," says Mohr. "I've got the best piece on the mountain, is what I think. I don't want any of that stuff back there. All I want him to do is stay the hell off my property."
Contact Matthew Doig at his online address: email@example.com