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Posts Tagged ‘Construction’

12th January
written by Land Lawyer

In an ongoing series to spell out exactly how unfair and hard it is to get anything done in our region. I am going dig deep into specific projects and let the reader be the judge. Since the Painted Hills project is back on the Board of Supervisor’s agenda for review this week we thought we’d update the readers on the challenge the project has been. Read yesterday’s Star’s article – HERE.

A little history on Painted Hills. Picture a tract of land, with beautiful saguaros and pristine desert that took 1000’s of years to create (never mind that virtually the entirety of Pima County was once such pristine desert). The property totals 283 acres on Tucson’s west side which would turn in to 260 high end homes. The project  is owned by the TDB Tucson Group who represents the Dallas Police and Firefighters’ Pension System and is being developed by LandBaron a Las Vegas firm. Lots of big dollars and professional firms involved.

Here is were it starts to get interesting. Apparently Pima County identified the land as part of it’s open space purchases from voter approved bond money. At one point there was an offer to purchase the property for $4.25 million. The ultimate sale price came in at $27 million well beyond the County’s budget.

The new land owner went through the motions to turn the property into a CLUSTER DEVELOPMENT which is a way to encourage higher density infill. By becoming a cluster development the developer agreed to the Sonoran Desert Conservation Plan requirements and set aside over 200 acres of the total of 283 for open space. The cluster development requires that housing be grouped in clusters on the development instead of checker boarded around the site.  Tough mistake but a mistake none the less. From The Weekly:

Officials from Pima County Development Services say cluster subdivisions allow high-density development on small parcels of land without compromising more open space. Critics use Painted Hills as an example to show that they can also offer a loophole to developers: Cluster subdivisions like Painted Hills effectively create a de facto rezoning with less scrutiny while ignoring the guidelines in the county’s Sonoran Desert Conservation Plan.

Let me see if I understand, buyer buys the land,  understands the rules BEFORE buying the land, buyer goes to work on turning their investment into a profit.  Enter the neighbors, a couple of which happen to be none other than Chuck Huckleberry, the Pima County Administrator and Carolyn Campbell from the Coalition for Sonoran Desert Protection. (learn more HERE, HERE, HERE, and HERE). Probably two of the most powerful environmental leaders in Tucson just happen to be your new neighbors. NIMBY starts taking on a whole new meaning.

Neighbors file suit to block the development. Board of Supervisors take another look at the cluster development problem and fix the loop hole. The Board seeks legal advice about RETROACTIVLY applying the fixed ordinance to the Painted Hills development. 

Silvyn (attorny for LandBaron) warned the county that applying cluster revisions retroactively is “unconstitutional,” because the development has completed its county review process.

What’s a little unconstitutionality among friends.

Lissa Gibbs, left, with Judith Meyer of Tucson Mountains Association:

Lissa Gibbs, left, with Judith Meyer of Tucson Mountains Association:

The Tucson Weekly ran a feature profiling the Friends of Painted Hills discussion.

I’m not taking a position on what, if or how this property does or does not ever get developed.  Leave it as open space, turn it into apartments, section 8 housing you name it I really don’t have a horse in the race so I don’t particularly care.

Here is where I have a major issue; how on earth can a government entity so blatantly disregard private property rights. Unless I missed something we do live in America. Pima County could have cowboyed up and purchased the property but didn’t. The group that did buy the land did their due diligence and knew exactly what they were getting into. The rules were posted and the developer followed them to the ‘T’. In return they’ve  received nothing but grief. I can bet you that the buyer,  Dallas Police and Fire Pension Fund are cursing the day they ever set foot in Tucson.

As of the April 17th, 2008 publishing of the Weekly article  the legal opinion on if the retroactive application of the ordinance fix is waiting a ruling.  But why stop there, let’s hit the project with everything we got.  Oct 21, 2008 the Star ran an article about the City of Tucson, denying water hook up to four new developments located outside of Tucson city limits, you guessed it Painted Hills is one of them.

Of the four projects at stake, Painted Hills is the most controversial…..In its legal claim filed Oct. 8 at City Hall, Painted Hills developer TDB Tucson Group said city officials ignored three requests for comment on water service when Pima County officials were reviewing the developer’s application for approval of its subdivision layout. ….
Tucson Water lines already exist along West Speedway and Anklam roads next to the Painted Hills property, and Tucson Water already serves properties on three sides of this parcel, Iurino wrote. The letter quoted a 2007 memo from Assistant City Attorney Chris Avery saying the city cannot arbitrarily refuse to provide water to “infill” development within an existing service area.
“We’re not really protesting anything. All we’re doing is saying this is one of those situations where city has a clear obligation to serve,” said Keri Silvyn, another attorney for the developer.
The city’s stance was welcomed by neighbors who have fought the Painted Hills project.
“I think that the City Council and mayor understand the value of the natural environment, that it is an irreplaceable asset to the character of life and quality of life and are supporting (a) clear mandate voters made by approving bonds to buy that land,” said Lissa Gibbs, a neighboring resident.
Ward 1 Councilwoman Regina Romero. “It’s not about Painted Hills — it’s about the future and planning of all our development.”

Yeah right!

You may want to read a little about Prop 207 which passed in AZ with a 64.8% margin. It’s about a little thing called Private Property Rights.
We’ve published the techniques used by the environmentalist in a previous post HERE but it’s worth a reprint;

It goes something like this;

1. Elected representatives approve a zoning plan for up zoning on a piece of property. Usually the lots are zoned for 3 acres to 25 acres or restricted to agriculture or churches. The developer often buys the land contingent on these zoning changes. With the vote from the elected officials in hand the transaction is completed.

2. Environmental activists learn about the impact of the development on the SDCP or on the habitat of a pygmy owl or the (insert plant or animal name here – try the Gila Chub, Tucson shovel-nosed snake, the Pima Pinaple Cactus, Southwest Willow Flycatcher or whatever). Their efforts go into full court press.

3. The Enviro’s drum up support from the adjacent neighbors. This plan includes door to door marketing to each neighbor. The goal is to stress the traffic impact of the new development  or just about anything that will stoke the fires of the NIMBY crowd. Petitions are signed, special elections are demanded, court actions are started. The Enviro’s use some or all of these efforts to over rule the original zoning or council approved  vote.

4. The cycle goes on costing the developer untold dollars and more importantly TIME. The Enviro’s are organized, they know the rules and they pull every legal lever they can.   Usually the cost of legal engagement is minimal because the federal species acts are set up force the government to do the heavy lifting. Whether it’s getting federal designation of the Santa Cruz as navigable, or forcing a mining company to go through the federal process to cross a small wash leading to their quarry, the Enviro’s use the laws and our taxpayer funded court system to do their work.

5.  If the petition process isn’t the best fit, the Enviro’s can  pit one jurisdiction against another. You see that in State Land Department wedged between Pima County and Oro Valley, or the developer in Sahuarita that was being played between the county and the Town of Sahaurita. Using political leverage with the help of an  Enviro friendly jurisdiction against one another is common place.  These power player jurisdictions use future annexation of land  as a tool to get municipalities into line.  (Oro Valley and Marana recently adopted the SDCP.)

6. Building in requirements to all developments are another tactic.  Enviro’s have successfully built in requirements for future developments to include;  native plant preservation, rain water harvesting, water shed and rainwater retention basins, 100 year assured water supplies just to name a few. Some of these new development design specifications are useful and important. Many are simply pandering to a special interest and down right ridiculous. All of these added requirements cost money. Guess who ultimately pays the price for these extra steps? The developer? Absolutely not, the cost gets passed directly to you and I the end consumers.

7. When all else fails and probably the Enviro’s greatest ace in the hole is there ability to count votes from elected officials. By picking, supporting, funding and working to get the elected officials in office the Enviro lobby wields tremendous influence with elected officials in towns, cities and the county.


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