Deconstructing the Phoenix Mountain Preserve

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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.

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Michael Kiefer