Town sued over abandonment of easement below Tortolitas
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."