Road Kill

To Ken Parker's father, a cowboy who wrangled dudes in the 1940s, the area south of Sedona was unremarkable grazing land known as Jackass Flats. But to Parker, it was a land of opportunity, and he wanted to cash in.

The time was 1979, before the crystal worshipers had begun talking about vortexes and spiritual energy in the red rocks. But it was already obvious that Sedona was a spectacular place drawing urban refugees and retirees like a magnet.

Parker envisioned a massive, world-class resort on a hillside near the village of Oak Creek, and he bought up 300 acres to make it happen. It would have housing for 800 people, a championship golf course, a hotel, a shopping center and a health club.

In 1983, Parker hired engineer Joe Jones to lay out the first phase of the project--a condominium subdivision--as well as a road that would connect the parcel to Highway 179.

That's when Jones gave Parker a crucial piece of advice. He encouraged Parker to keep the road connecting the condos with the highway privately held, a separate piece of property.

Later--when Parker's stake in the project was sapped by partnership disputes, and outside investors took over the property--Jones' advice would save Parker from losing everything.

The resort property might have slipped through his fingers, but Parker still owned the road, the project's only access to busy Highway 179. And with the road came a strong bargaining position. After all, in Arizona, there are few more bedrock values than the sanctity of private property.

That's what Parker thought, anyway, until one of the largest corporations in the state came to town and decided it wanted his small, curving road.

In February 1995, SunCor Development Corporation, a subsidiary of Pinnacle West, the holding company that owns Arizona Public Service Company, purchased the 300-acre resort for an estimated $13 million.

Two weeks later, SunCor president John Ogden met with Ken Parker to discuss the entrance road.

"'Aren't you ever going to give up?'" Parker says Ogden asked him.
"I told him no. We own this property," he says. Parker then says Ogden told him that if Parker wouldn't relinquish the road, SunCor would play its trump card.

"'We will simply condemn it,'" Parker says Ogden told him.
Parker knew that fighting with the large corporation would be tough. But even the heavyweights at SunCor didn't have the power to condemn his land, he thought. Eminent domain, after all, is one of the government's harshest powers, and even SunCor couldn't buy that power at any price.

So SunCor rented it.
SunCor officials have convinced Yavapai County to condemn the road and dedicate it to the public, ending forever any questions of its ownership.

Yavapai County isn't concerned that its use of condemnation to end the dispute appears to give SunCor a convenient way out of paying Parker a lot of money. The benefit to the public outweighs any concern about appearances, county officials say.

But those appearances are troubling to property owners who say developers are increasingly turning to government and its powers of eminent domain rather than solving such disputes privately.

Yavapai County officials acknowledge the only reason they're condemning the road is because SunCor requested it--and offered to pay for it.

SunCor has indemnified Yavapai County and is paying all of the county's bills in the condemnation action, which could save SunCor millions of dollars.

For county officials, residents and others anxious for SunCor to finish a project begun nearly 20 years ago, concerns about the propriety of the condemnation pale beside a less-abstract concept: silencing that pesky Ken Parker.

Without eminent domain, the government wouldn't have the power to move the proverbial little old lady out of the way of a new freeway or an airport runway.

But increasingly, that power to force the sale of land is being used to benefit private interests. A developer decides to build a skyscraper on a city block, and so begins buying up the lots that make up the block.

"That's assemblage," says Jay Dushoff, an attorney who specializes in condemnation cases but who is not involved in the Ken Parker-SunCor imbroglio. "In the old days, a developer got to the owner of the last parcel, and he might have to pay through the nose. It was the developer's tough luck. Nowadays, the developer just cries to the municipality."

Dushoff says more and more developers are coming up with reasons the entire community would benefit by their ownership of a property. Then the city or county--which must prove a public use and necessity for the condemnation--takes possession of the land and turns it over to the developer.

Dushoff cites a case he's handling in Scottsdale, where a hospital wants to expand onto property that's not for sale, so the city is condemning it on the hospital's behalf.

"That's not what eminent domain was intended for," he says. "It was intended either for governmental structures--schools, courthouses and so on--or for slum clearance."

To show how things have changed, Dushoff describes a case eerily similar to Parker's: A county tried to condemn private property so a road could be built to serve a housing project. The developer indemnified the county and paid the costs of the condemnation, but an appellate court ruled that the condemnation amounted to "constructive fraud," since it was done to benefit the developer.

That case occurred in the state of Washington in 1962. Arizona's condemnation laws, Dushoff points out, are based on Washington's. But 34 years later, it's the private developers who are winning these cases.

Dushoff is familiar with Ken Parker and the controversy over the entrance road--a partner of Dushoff's worked on the case years ago--and says it's another example of the government abusing its powers of eminent domain.

"SunCor has a neat game going," Dushoff says.
SunCor was very explicit about its motivations when it wrote Yavapai County on May 12, 1995, asking the county to condemn the entrance road to the Sedona Golf Resort. "This request is being made due to continued claims by a third party over the ownership of this road," SunCor's project manager, Jim Binick, wrote.

The battle with Parker over control of the road had eaten up enough of everyone's time, SunCor and Yavapai County say, and it's more efficient to condemn the property and end Parker's claims forever.

That explanation bothers Dushoff. "I knew Ken Parker a little," he says. "He can be a royal pain in the ass. But so what? Efficiency is no excuse for bypassing constitutional rights."

Thirteen years after carving out the fateful road, the thing Joe Jones remembers most about Ken Parker is his energy: "He's a 33-and-a-third record played at 78 rpm. It was nothing for him to call me at 1:30 in the morning. That was Ken."

Parker still hasn't slowed down. The 51-year-old Carefree resident explains his case with the enthusiasm of a salesman pitching a new product. Out come maps and diagrams, and soon Parker has worked himself into a fever pitch. "It's scandalous!" he says every few minutes.

Parker's histrionics are more amusing than vexing, and it's easy to see why even his foes hold a grudging admiration for the boyish dynamo.

"The road is a really valuable piece of property that was the second property we ever purchased. And we have told God and everyone that we own it and we have never ever deeded it away," he says excitedly.

The "we" he refers to is his family; it's his elderly parents who actually own the entrance road, he explains, the result of a 1987 stock transfer. But it's the son who is the energy behind the fight to keep the road.

Ken Parker knows that some people believe he is quixotic, a desperate man whose quest to retain the road has been strung out with endless litigation and a series of attorneys.

But Parker maintains that he always intended to hold private ownership of the road and didn't just begin fighting over it when things turned bad.

Parker says the record shows that he's always considered the road a separate, private entity. The road was taxed separately, for example, and he produces records to show that his company was the one paying those taxes. He improved the road, building the median, patching asphalt, paying to light it and forking over money to build a fountain and a guardhouse. Both have been torn down; SunCor demolished the guardhouse this year.

SunCor vice president Steve Gervais says that the company was aware of Parker's claim on the road when it purchased the resort in February 1995. Analysis by its own experts, Gervais says, convinced the company that Parker's claims were invalid. (SunCor president John Ogden declined to speak about the project with New Times.)

"Ken is obsessed with this issue and he's going to take it to the extreme. He's emotionally attached to it. It's unfortunate that the resort didn't turn out the way he envisioned it," says Gervais.

It was the county's idea, Gervais says, to condemn the entrance road and make it public.

"The county said it wanted to shut Ken up because they were tired of him going into these meetings and constantly arguing to the Board of Supervisors that he owns the road. That's why we agreed basically on this condemnation order," Gervais says.

Later, Gervais corrects himself, saying that the decision to condemn was one made mutually by both SunCor and the county--neither side originated the idea.

But public records and other documents acquired by New Times indicate that SunCor not only approached the county about condemning the entrance road--and not vice versa--but has pursued an aggressive and comprehensive campaign to line up support.

Nearly every official, expert or entity involved in the condemnation--from traffic engineers to attorneys to Yavapai County itself--has been indemnified, contracted or otherwise compensated by SunCor.

And SunCor's aggressive pursuit of the condemnation occurs even though bankruptcy Judge Charles G. Case agreed in January that Parker's claims of ownership of the road were invalid.

Parker has appealed Case's ruling, but, for now, SunCor legally owns the road. Yet SunCor remains anxious for the county to condemn the road.

Ken Parker believes that SunCor continues to press for the condemnation because the company is afraid Judge Case's decision will be overturned. And he says SunCor has plenty to worry about.

In his ruling, Judge Case acknowledged Ken Parker's argument that no deed explicitly transferring title of the road exists.

But Case ruled that Parker, by his behavior, had clearly intended to dedicate the road to the condominium owners in the resort. The judge cited a document that SunCor's attorneys entered as evidence--a 20-page questionnaire supposedly filed by Ken Parker with the state Department of Real Estate in 1983. The document indicated that Parker intended to dedicate the road to residents of his resort.

Parker says he'd never seen the document before it turned up in SunCor's filings in 1995. Parker says he asked that Department of Real Estate staff find the document, but the search was fruitless. Ed Ricketts, deputy real estate commissioner, signed an affidavit that not only stated the department had no record of the questionnaire, but also that the documents the department does have in its files are consistent with Parker's version of the facts.

Parker also questions the nature of the questionnaire itself, pointing out unexplained scribblings and incorrect page numbers.

He claims the document is not only a fake, but a sloppy fake.
"I categorically deny that. There isn't a doctored document in the entire case," says Lawrence Dunlavey, an attorney who represents the homeowners association, which was a co-litigant with SunCor in Parker's bankruptcy. Dunlavey says he found the questionnaire in the Department of Real Estate's files in 1992 while gathering evidence in the bankruptcy case. The document was eventually submitted to Case last year by SunCor's attorneys.

"If it's not there now," Dunlavey says, "then you'll have to ask the folks at the Real Estate Department what happened to it."

Parker is confident he'll convince an appellate that Judge Case erred in relying on the questionnaire--and made other errors in judgment--and will give Parker back his road.

By then, however, Yavapai County probably will have made the victory hollow.
"It's very simple," Parker says. "SunCor knows we really own the road, and the only way for them to gain title is to condemn it."

In order to do that, SunCor and Yavapai County have danced a complex tango--the county dips when SunCor wants it to, and SunCor picks up the tab.

Among the most willing to be led is Yavapai County Supervisor Carlton Camp, who represents the Oak Creek area and who has helped push through rezonings and agreements necessary before the county could condemn the road. (Camp refused to talk with New Times, deflecting all questions to the county's principal planner, Richard Parker--no relation to Ken.)

First on the list of necessary tasks: The resort had to be completely rezoned, and that meant reversing decisions about the roads and traffic that the county had made only three years earlier.

In 1992, Yavapai County decided that private roads with one major outlet--onto Highway 179--would best suit the resort and the community around it.

Three years later, the same county officials concluded just the opposite--that public roads with several access points were the way to go.

Many people disagreed. The county received 200 complaints about the zoning plan from residents, and only one letter in support of it--from SunCor employee Jim Binick.

While the county claimed the zoning served the interests of Oak Creek village, some locals thought otherwise.

"The only benefit is to SunCor," says Jake Webber, an Oak Creek village grocery-store owner who has attended many of the county's meetings about the resort. "It really comes down to dollars and cents, and it doesn't get much bigger than SunCor. That's APS and Pinnacle West. The county obviously has more interest in what SunCor wants than in what Ken Parker is saying."

After the county had approved the zoning which called for the road to be public, it could then move to condemn the entrance road.

County officials say condemning the road is necessary to keep the public road system open and intact. But that wasn't enough incentive for the county to start condemnation proceedings on its own.

Only after SunCor requested the county's assistance to quash Ken Parker's claims of ownership did the county decide it was in the community's best interest to step in.

Yavapai County planner Richard Parker spreads out a large map of the Sedona Golf Resort and explains that he's been dealing with the Ken Parker matter since he took the job in 1986. By then the resort had already been a headache for the county for several years. It's been Richard Parker's headache ever since.

But even though he's repeatedly locked horns with Ken Parker, Richard Parker can't help admitting to some admiration for the developer.

"Ken Parker is the most resourceful, tenacious individual I have ever met. He's never given up on this."

The planner disagrees, however, that the county's relationship with SunCor is inappropriate. "Yavapai County doesn't take this lightly, let me tell you that. The county does not rent this power out."

And until recently, that was true. According to minutes, when the Board of Supervisors ratified the condemnation pact with SunCor, both Richard Parker and Supervisor Carlton Camp remarked that the county had never entered such an agreement before.

SunCor's Steve Gervais says that such agreements may be rare in Yavapai County, but they're much more common in Maricopa County. As an example, he points to Phoenix's downtown baseball stadium--an ironic citation, given widespread public antipathy for the stadium project.

Many Oak Creek locals are just relieved that something, anything, will be done to complete the long-planned resort. Bob Brandin, president of the homeowners association at the condominium complex, points out that only a large and respected builder such as SunCor could come in and straighten out such a convoluted mess.

"It's going to be a great development," Brandin says. "[Ken] Parker lost a lot of money on this place. This is his last gasp of getting money out of it. And I don't blame him for that."

But Brandin and the homeowners association have endorsed SunCor's development agreement with the county. The homeowners took that step, however, only after SunCor sent a letter promising to indemnify them against litigation.

The road Ken Parker built has drawn a dozen people to the courtroom of Maricopa County Superior Court Judge Jeffrey S. Cates. The condemnation case has been moved to Phoenix because Yavapai County is one of the litigants.

Ken Parker is waiting for the proceedings to begin. On this day, he and his attorney, Chuck Hultstrand, will try to convince Judge Cates that the entrance road is worth millions of dollars. Yavapai County, on the other hand, has an appraiser who will testify that the road's only worth about $126,000.

Yavapai County--and SunCor, which is paying the bills--hopes to convince Judge Cates that the road is worth the appraiser's $126,000 estimate. If it succeeds, Cates will set a bond at that amount, which the county will have to pay. Of course, SunCor will actually provide the money.

When possession of the road is taken by the county, the money will be paid to the road's owner. According to the bankruptcy court, that owner is SunCor. So SunCor may end up paying itself $126,000 for its own road, which would then be dedicated to the county for public use.

But if Ken Parker can prove in his bankruptcy appeal that he's the rightful owner of the road, then he'd get the $126,000.

It's a far cry from the $5 million Parker says the road is worth.
But by the time Parker could win such a bankruptcy appeal, the road will have been condemned, and he won't be in a position to negotiate.

SunCor has the upper hand.
But Parker is undeterred. As he awaits his turn to testify, he pulls out his wallet to show off the copy of Psalm 35 he carries with him. It's surprisingly litigious in tone:

"Plead my cause, O Lord, with them that strive with me: Fight against them that fight against me."

At this point, divine intervention may be Ken Parker's best chance for victory.


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