Private road on USFS land is imminent, condemnation is not

by Cyndy Hardy
Appears in the March issue of The Noise. Available for reprint.

SEDONA, Feb. 12 – The Sedona City Council backed off a possible eminent domain action amid high cost estimates and doubts a condemnation could pass legal muster. As a result, U.S. Forest Service land may be razed in an area southeast of Airport Mesa and west of Hwy. 179 for a private 400-foot bridge over Oak Creek and ¾-mile road to a new gated subdivision.

Since about 1992, Sedona residents Bruce Tobias and Robert and Carol Flynn have sought access to their three undeveloped parcels, totaling about 27 acres, which are landlocked by USFS and private land, including that owned by residents of the Oak Creek Cliffs subdivision.

The city of Sedona owns part of Oak Creek Cliffs Drive, from Hwy. 179 to the city’s wastewater lift station. The rest, including a low-water crossing on Oak Creek, belongs to the neighborhood homeowners association. The road terminates east of the Tobias/Flynn site with a small strip of USFS land in between.

“The USFS required us to exhaust all other options before they would consider an easement,” Mr. Tobias said. Two major options were an agreement with Oak Creek Cliffs residents and suing the USFS.

Oak Creek Cliffs residents will not allow Tobias/Flynn access through their neighborhood. Its residents do not want the added traffic likely if the landlocked property is fully developed. Oak Creek Cliffs has about 20 homes; Tobias/Flynn is zoned for minimum 35,000-square-foot lots, meaning its owners could build up to 33 homes. Mr. Tobias and Mr. Flynn have said they intend to build their own homes and a few others.

Roderick Rawlins has been an Oak Creek Cliffs Homeowners Association board member since 1986. “We know so little about this project, you couldn’t get an intelligent question to ask the board,” he said at the Feb. 12 City Council meeting.

Moving on with their options, Tobias/Flynn successfully sued the forest service in U.S. District Court for the District of Arizona in September 2002; the court ordered the USFS to grant access. Not much has happened in nearly six years. “That’s why I want more government control over my forest,” Vice Mayor Jerry Frey said, sarcastically.

Use of forest service land requires a National Environmental Policy Act study to compare a proposed route to other options. The NEPA study did not begin until 2007. “Ours is a small project that continued not to be heard,” unless they paid USFS a fee to expedite the matter, Mr. Tobias said.

The preferred route being studied lies within city limits. The proposed bridge would be about 70-feet high on one side and about 30-feet high on the other. Part of the proposed road would parallel Hwy. 179.

As part of the study, the USFS sought comment from the city. In April 2007 the City Council brought up concerns about environmental impact of a new road through virgin forest land when a more suitable route was available through Oak Creek Cliffs. The city estimates a lower profile 460-foot bridge could be built that would be 12-feet high on one side and 16-feet high on the other. The road would be about 0.25 miles, a third as long as the road proposed by USFS.

The City Council, aware of its role as joint custodian of public land, considered condemnation to force access through Oak Creek Cliffs. If the council acted quickly, its preferred route could be included in the current NEPA study. Otherwise, USFS would require a new study for the small strip between the private parties’ property.

Condemnation presented several problems, though. The proposed USFS route will cost about $7.5 million, according to city estimates. The city’s proposed bridge and road would cost about $6.6 million for condemnation, construction and legal fees, not including the costs if homes were condemned. Mr. Tobias said he would contribute to the city’s costs, up to what he would pay for the USFS route, which is unclear.

Also, condemnation would surely result in legal action from Oak Creek Cliffs residents, driving up the city’s costs and potentially delaying the project during negotiations, litigation and appeals.

The council discussed public safety as a justification for condemnation. When Oak Creek floods residents and emergency vehicles cannot cross the low-water bridge. The bridge was impassable for several days during the Dec. 30, 2004 flood. Some Oak Creek Cliffs residents asked the city to improve the road, but the city does not own the part that needs fixing.

“[The Oak Creek Cliffs route] is better environmentally and it makes better sense, but if the residents are happy with a low-water crossing, they don’t see it that way,” said Councilwoman Nancy Scagnelli. Deciding that condemnation did not “rise to the benchmarks” for condemnation, the City Council ended its deliberations without action.

Residents said the USFS has a duty to find a suitable route. Paul Loef lives in Oak Creek Cliffs and opposes an easement through his neighborhood to Tobias/Flynn.

“If you wanted to proposed route that raised ire you could hardly do a better job,” Mr. Loef said.