Town Council Votes To Allow HIllside Construction... Overrides Conservation Easement

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Imagine a year ago that you do your dilligence in purchasing a home.  You walk the neighborhood. You see a vacant lot near to you. You go to town hall to review the plat.

You find that the vacant lot has a conservation (can't disturb) easement running diagonally through the property.

You conclude that anyone building on that property will have to abide by the easement. You conclude that anything built on that property will have to be built away from you.

So you purchase your home thinking that, in good faith, the town will enforce the conservation easement.   You know that you would not have purchased the home or not have paid as much for the property if the conservation easement did not exist.

Imagine, a year later, through an appeals process, all that changes.  Imagine that it turns out that town council can and does allow an end-around the conservation easement such that your worst nightmare occurs.  We're not talking a simple loss of views. We're talking a complete loss of privacy; and with it, a substantial loss in the value of your home.

That is what happened to resident Scott Speder.
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Here's What Happened

Last Wednesday, 4 members of council, Hiremath, Waters, Snider and Hornat, voted to remove a conservation easement restriction so as to allow building on a property.  The approved Item 1 on last week's Oro Valley Town Council meeting agenda.   It was a plat amendment for an open lot in the Sunridge II subdivision located at 752 W. Sedona Ridge Place.

A conservation easement is part of the plat plan.  Among other things, it restricts building on a slope. In this case, removal of the restriction allows a porch to be build into the easement, thus "disturbing" the hillside.  The resulting construction substantially impacts some neighbors.

The developer, Mike Arnold of Kachina Custom Homes, had defined two alternatives.  One, was to build a residence in a manner that satisfied code. This, the builder alledged would require building a smaller home and a guest house.  The guest house would ruin the view of two neighbors.

The second option presented was to build the residence's porch into the easement and not to build the guest house. This would ruin the privacy of two other neighbors, neighbors who had relied on Oro Valley code to protect their home value.

These were not the only options available. There were the only ones considered by council, however.

One neighbor, Lonnie and Heather Nanedovich, presented alternative plans demonstrating that a comparable high value property could be built on this property within the constraints of the conservation easement..  They prepared these plans at their cost.  These plans illustrated how a property equal to what the developer wanted to build could be constructed.

Another neighbor pointed out that it was wrong for Oro Valley to change the "rules." He had experienced similar requests while serving on a board in California.  These decisions for a change can lead to unintended future precedent consequences, he asserted.

Four council members selected the second option, that of relieving the restriction, because they felt it would do less harm to the residents. In essence, they switched the "damage" to neighbors who had assumed that the "law was the law" from those who should have been impacted by the code.

The motion passed 4-3.

Council Members Zinkin, Garner and Burns voted no.

 "This isn't a question of who is or who not going to get hurt," noted Council Member Zinkin.  "We are not going to redesign this house... I think that we have direction from our General Plan. Someone came up [Mr. Spade], said he bought his house knowing that there were rules in Oro Valley. If rules were broken...prior to when this general plan went into effect, I'm sorry that happened but I can't be a party to breaking another rule.  When do you stop? The general plan gives me guidance on this and I can not support..." this amendment.

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The Nanedovich's are shell-shocked by this council decision.  They are perplexed to understand why the council decided to make such a significant decision that hurts people who have abided by the law.  Hopefully, the following will provide some answer to that question.

Our Analysis

Yes, once again, the 4 council members who always vote as a block  (Read "Lockstep" for more) and who always vote for the interest of business, voted, once again, in lockstep in favor of a business interest.

They did this without any consideration of the general plan.  They did this without any attention to the real issue, which is honoring a compact the town has made with its citizens to establish and enforce its zoning codes.

These 4 should have said: "Oro Valley has a conservation easement on this property to protect a slope. This means, the slope can not be built upon or disturbed in any way.   Protecting slopes is part of our general plan.  It is what our citizens want.   Mr. Developer, you knew this when you bought this parcel.    Neighbors, you knew this when you purchased you home.  It is wrong for us to change the rules to benefit some and injure those who abide by the rules.  So, Mr. Developer, build within the rules."

Instead,  four, however, changed the law.  There was no need for them to meddle in this; but they did.

It appeared to us that these 4 council members had made their decision to pass this amendment before ever listening to public comment.   In fact, Mayor Hiremath's comment of approval came so quickly after public comment that he certainly had no time to even digest what was presented.  His justification was that the council had to pick where the residence should be built; that the council had to mediate a judgment.   He was wrong.  The council did not need to pick anything. It simply needed to enforce the code and not approve the amendment. Simple.

This particular 4-3 vote shows the drastic difference between the block of 4 and its newest members.  

The block of 4 put the interest of a business ahead of the interest of law abiding residents by not enforcing the existing zoning code.  A conservation easement was in the way of a construction project, so they removed the conservation easement.  Allow the hillside to be obliterated.  No regard to slope conservation.  No regard for upholding the rights of those who abided by and respected the existing law.

Contrast this to the attitude of Council Members Burns, Garner and Zinkin.  These members put the residents, the code, and, in this case, the environment first.
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