Tortolita Mountain Public Access

June 10, 2009

By Alan M. Petrillo, Special to The Explorer

Four property owners along an easement on the west side of Saguaro Ranch have filed a lawsuit in Arizona Superior Court against the town of Marana contesting the town's abandonment of the easement.

The lawsuit, filed by Steven Blomquist, Sharyl Cummings, Theresa Chamberlain and Timothy Blowers, asked the court for a declaratory judgment "determining the easement is still a valid public easement for ingress and egress by members of the public," as well as for a permanent injunction prohibiting the town from citing members of the public for trespassing resulting from attempted use of the easement. The plaintiffs are represented by attorney Stephen Weeks.

"We hope to have the court rule that the effect of the town's quit claiming the easement was a nullity," Weeks said. "If they have no interest in the easement, the town's action means nothing."

The Marana Town Council abandoned an easement off Thornydale Road as part of the consent agenda at its May 21 meeting.

Marana town attorney Frank Cassidy said Monday the town had not yet been served with the complaint and thus couldn't comment on the lawsuit's contents. However, he noted he had earlier prepared a legal argument addressing the possible issues to be brought up in a lawsuit.

Cassidy's memorandum noted the plaintiffs contend the town exceeded its authority by relying on an Arizona Court of Appeals holding in Pleak v. Entrada Property Owners' Association, but that the plaintiffs' reliance on Pleak was misplaced.

"Pleak is addressed entirely to the subject of the validity of common-law dedications to the public," Cassidy's memorandum states. "It is completely silent about the subject of whether those rights, once created, can be vacated and abandoned by the appropriate local government."

The memorandum continued, "The rights of a local government to abandon public roadways, whether created by right-of-way dedications or by easement, is clearly settled in Arizona law. A.R.S. §9-402(E) provides that 'a city or town may convey to the appropriate property owner without receiving payment an easement that the city or town no longer needs.'"

Weeks said he expects action on the lawsuit could take months, depending on the court calendar and Marana's response.

"I intend on asking for an expedited hearing . but there are still time limits involved," he said, "and the time period will depend on how hard they (Marana) fight on the time limits and what the availability is on the court calendar."

Weeks noted the position of the plaintiffs is that the town's action was "a nullity; they did nothing. Their resolution stands as an action that they passed and signed the quit claim deed, but our position is that it's a meaningless act."

In other developments, residents of properties bordering the abandoned easement continued to test the town's resolve in keeping people off the former public right of way.

Blomquist and Cummings were arrested and cited for criminal trespass three times since the council's easement abandonment, while Chamberlain was arrested and cited once. All three also are plaintiffs in a lawsuit against Saguaro Ranch owner Stephen Phinny, who they say began blocking access to the easement in early 2008.

After the council abandoned the easement, the town attorney directed that "effective immediately, anyone walking or driving as a member of the public on the portions of the easement located within the town limits of the Town of Marana will be treated as a trespasser, and will be subject to arrest and prosecution at the discretion of the investigating officer."

Blomquist and Cummings are scheduled to appear in Marana town court on June 16 and 17 to answer their criminal trespassing charges, while Chamberlain is to appear June 17 to answer hers.

Weeks pointed out the easement, essentially a loop road, has been used since the 1960s by the property owners in the area to get into what is now Tortolita Mountain Park. Another access to the park is off Como Road on the east side of the Saguaro Ranch development.

He also noted Marana has acknowledged it doesn't own all the land the easement touches, so through its abandonment action, it eliminated public rights that exist beyond the town's boundaries.

"You can't destroy something that's outside your authority and control," Weeks said.

Blomquist and Cummings were first cited for criminal trespass when they used the easement on May 27, and again, two evenings later. Their third arrest, along with Chamberlain, came on June 1.

Weeks said that until the lawsuit against Marana can be heard, he expects the town to continue to cite people using the contested easement for criminal trespass.

"What we want to do is stop that from happening so the public can feel safe walking along the public easement," he said. "But this is just stage one of this dispute; look for more in the future."

By Alan M. Petrillo, Special to The Explorer

Two arrested for criminal trespass; town looks at new trail access

Action taken by the Marana Town Council to abandon an easement on the west side of the Saguaro Ranch development has led to criminal trespass charges being leveled against two neighborhood residents.

A late addition to the council's consent agenda at its meeting on May 21 sailed through on voice approval, vacating and abandoning "any rights of ingress and egress granted to the public by the easement recorded in Docket 7718, Page 333, Pima County Recorder's Office."

The abandoned easement, which is off Thornydale Road, has been a center of controversy since Saguaro Ranch owner Stephen Phinny began blocking access to the easement in early 2008. In response, a group of neighbors filed suit on behalf of the public to keep the easement open and prevent its abandonment.

After the resolution passed, Marana town attorney Frank Cassidy issued a directive that "effective immediately, anyone walking or driving as a member of the public on the portions of the easement located within the town limits of the Town of Marana will be treated as a trespasser, and will be subject to arrest and prosecution at the discretion of the investigating officer."

That directive was tested the evening of May 26 when area residents Sharyl Cummings and Steve Blomquist were warned by police they were not allowed on the easement and could be cited. At the time, Cummings and Blomquist were carrying protest signs on the easement just south of McClintock's restaurant. No citations were issued.

However, when Cummings and Blomquist again used the easement the next evening, police issued them each citations for criminal trespass. The pair are to appear in Marana town court at 9 a.m. Tuesday, June 16.

Asked why the resolution was added as a late item to the council's consent agenda, public information officer Rodney Campbell explained "one of the things neighbors from that area were talking about the other day was 'why the big hurry?' because it was declared an emergency on the agenda.

"The big hurry is our police department having to take numerous calls and go out there and try to work out disputes between the developer and homeowners out there," Campbell continued. "We needed to have a resolution, as far as the town was concerned, one way or another."

Stephen Weeks, attorney for the neighborhood plaintiffs in the case, said Marana's action muddies the waters of the neighbors' lawsuit against Saguaro Ranch.

"A prior judge put the lawsuit on hold because he was concerned whether Marana had any legal right to affect the easement and wanted to find that out," Weeks said. "The town put everything on hold after its February 3 meeting when it discussed abandoning the easement, but then after the election, and despite their promises to the public about having a duly-noticed meeting and the opportunity to discuss it, they threw it onto the consent agenda, which is something that can be passed by simple majority vote without any sort of discussion."

Weeks said his next step will be to sue the town of Marana.

"Unfortunately we will have to file a lawsuit against the town of Marana and get a declaration as to what, if any, effect their action had in preventing the members of the public from using the land," he said.

Weeks noted the easement has been used since the 1960s by area property owners.

"The nice thing about the loop is it goes up to and into Tortolita Mountain Park, so you have both an east and west access," he said. "The east access off Como Road is solely prescriptive, while the west access is primarily public with a small portion of prescriptive."

A prescriptive easement can exist, he added, when the area in question has been used for 10 years or more and the use has not been challenged.

Weeks noted the binding Arizona law stems from a 1990s case, Pleak v. Entrada, where the court said there are three types of roads in Arizona — private roads; public roads, where a town agrees and accepts maintenance of a road after a certain number of things are agreed upon between it and a developer; and roads over privately-owned land with a deeded public access.

"In that third category, the case says the moment some owner creates a public access and turns around and sells a lot, the public access becomes immediate and irrevocable," Weeks said. "It's a deeding of the land to the public."

Weeks maintained the Thornydale Road easement fits into that third category.

Beyond that, Weeks said the town has acknowledged it doesn't own all the land the easement touches, so through its action, it is trying to extinguish rights that exist beyond the town's boundaries.

"You can't destroy something that's outside your authority and control," Weeks said.

He acknowledged there are no Arizona cases that deal with the question of which members of the public have the right to use easements.

"But there's a California case, Kenny v. Overton, that basically says a municipality cannot extinguish rights unless it was deeded to public care of that municipality, and in this case it wasn't deeded to Marana, which came in long after the easement was in effect," Weeks pointed out. "But this is an unusual situation and there is no case law in Arizona on that point. Often Arizona courts will find California and other state laws that interpret similar legal principles and determine if they're applicable here as well."

Weeks noted the Saguaro Ranch bankruptcy filings also have affected the litigation by slowing down the civil action.

"We're in the process of lifting the stay on the case and once that happens, we'll move forward again," he said. "We're not typical bankruptcy creditors, we're not suing to get paid a whole bunch of money from Phinny, we're filing for the access."

Meanwhile, Marana announced it is working with Pima County, the State Land Department and Saguaro Ranch to expedite construction of a multi-use trail to Tortolita Mountain Park adjacent to the Saguaro Ranch development.

Campbell pointed out that a trailhead and multi-use trail on the eastern end of the development was planned in 2003, when Phinny agreed to dedicate a public easement for the trail and land for a trailhead. The town has now taken the lead in talks with the various participants to expedite construction of the trailhead and trail, Campbell said.

That trail's construction was delayed after a route assessment indicated the dedicated easement was steep and potentially challenging for the average hiker or walker, according to a Marana news release, so a modified route was negotiated over a portion of state land and the existing dedicated easement on the east side of Saguaro Ranch.

I wanted to update everyone on the access lawsuit in Pima County Superior Court. - Like all the legal and financial matters filed against Saguaro Ranch and it's developer, the lawsuit had an automatic stay placed on it when Saguaro Ranch and it's developer Stephen Phinny filed bankruptcy. As a result, we had to hire a bankruptcy attorney to petition U.S. Bankruptcy Courts to lift the stay so that our civil case can proceed to trial in state court. Unfortunately, nothing moves quickly, and with seven bankruptcy cases filed by Saguaro Ranch and it's developer it is far more timely and costly than one...