by Cyndy Hardy | Sedona.biz

Sedona, AZ – February 17, 2008 – The next time Oak Creek floods and residents are stranded for days in their Oak Creek Cliffs neighborhood should prove an interesting event for those following the recent City Council condemnation hearings.

The low-water crossing to that neighborhood of about 20 homes has flooded a couple times this winter, but not for several days at a time as it did during the flood of Dec. 29, 2004. After that flood, some Oak Creek Cliffs residents who couldn’t leave their homes pleaded with the City to do something; but the City does not own the road beyond the wastewater lift station.

There was some talk of ‘health, safety and welfare,’ but no one pressed the issue. Nothing was done and the brief outcry quietly subsided like the waters of Oak Creek. Part of Oak Creek Cliffs Drive remains a private road, owned and maintained by the homeowners who live at the end of it.

Behind that neighborhood are three parcels of undeveloped land owned by local realtor Bruce Tobias and Robert and Carol Flynn. Their combined property of about 27 acres is landlocked by U.S. Forest Service land within Sedona city boundaries, including a small strip of USFS land between Tobias/Flynn and the Oak Creek Cliffs neighborhood.

Since 1992, Tobias and Flynn have fought for access to their land. The Forest Service required Tobias/Flynn to exhaust every option before it would grant easement over public land. Two major options were to negotiate an easement with the Oak Creek Cliffs Homeowners Association and to sue USFS for access.

Oak Creek Cliffs would not budge then and continues to refuse to share its road with Tobias/Flynn, maybe because the residents don’t want the added traffic in their neighborhood. The property is zoned for minimum 35,000 square-foot lots. An acre has 43,560 square feet, so that could mean about 33 new homes if Tobias/Flynn choose to fully develop the land.

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.

Unable to negotiate an agreement with Oak Creek Cliffs, Tobias/Flynn moved on and sued the USFS. They won in 2002 and the U.S. District Court for the District of Arizona ordered USFS to provide an access.

Apparently, the court order did not inspire much urgency for the USFS. “Ours is a small project that continued not to be heard,” unless they paid a fee to expedite the matter, Mr. Tobias said. So, more than five years later, Tobias/Flynn await the outcome of a National Environmental Policy Act study required by the Forest Service to determine the best route.

Part of the NEPA process includes soliciting comment from stakeholders, including the city of Sedona, which sparked a new round of interest in Oak Creek Cliffs Drive last April.

The preferred route in the NEPA study is an approximately 3/4-mile road that would parallel Hwy. 179 for a ways before angling west to a proposed 450-foot bridge across Oak Creek. The bridge would be about 70 feet high on one side and 30 feet high on the other because of terrain and the flood plain.

The City Council had plenty to say about the NEPA study, since the forest land lies within the Sedona city limits. Council members said the Oak Creek Cliffs route would cause less harm than the proposed road and bridge. In April 2007 the Council asked Mr. Tobias to try again with the homeowners. They still refused and talk began at City Hall about possible condemnation of the private segment of Oak Creek Drive.

The City had to act soon if it wanted to get the route included in the NEPA study as an alternative to the preferred-yet-less-desirable route. Otherwise, a new NEPA study would have to be done for the small strip of USFS land between the properties. Tobias/Flynn is paying for the current NEPA; the City would probably have to foot the bill for a new one.

So, the City had to weigh all the factors – public need; condemnation costs, including purchase costs and legal fees if Oak Creek Cliffs residents fought the conemnation; and a new NEPA study if they didn’t act in time.

“Is it honorable and is it just to condemn for an investor who bought with a red flag?” resident Constance Loef asked at the Feb. 12 City Council meeting.

Paul Loef said, “Is the City Council willing to cave in to the USFS and sacrifice one riparian area for another? Are you willing to spend money for condemnation and legal fees? The question here is whether it is for public or private use. Basically we have two speculators who knew before they signed the contract they would never have right to cross Oak Creek Cliffs.”

There might also be an underlying motive that hasn’t specifically been discussed in this case: the decades-old debate whether to rebuild a low water bridge at Red Rock Crossing that washed out for the last time in 1978.

On one side, some say having only two roads in and out of Sedona – Hwys. 89A and 179 – cause traffic and safety problems. On the other side, some say a new bridge at Red Rock Crossing will damage the views and environment at one of the most photographed places in the United States.

Sedona elections have been won and lost in part over Red Rock Crossing – often called the 'alternate route' issue – as each side has jockeyed for power and representation on the City Council. Five of the seven city council seats are up for grabs in the March 2008 election. Council members Nancy Scagnelli and Ramon Gomez are seated until 2010.

In the election of 2006, the alternate route was a major campaign issue. Ms. Scagnelli resigned her presidency from Citizens for an Alternate Route when she won election to the council. None of the candidates won that year who were sponsored by Keep Sedona Beautiful, perhaps the most organized and visible opposition to an alternate route at Red Rock Crossing.

For the first time in recent history, all seven council members stated strong support to uphold the previous council’s Dec. 15, 2004 resolution to find an alternate route – not necessarily at Red Rock Crossing. (Several possible routes were identified in a NEPA study initiated in 1996. Many of those routes are no longer available due to development.)

The issue has seemingly been dormant since the 2006 election, however, the Tobias/Flynn property sits awfully close to the eastern termination of an alternate route the City once proposed in 2005 to win construction money from the Northern Arizona Council of Governments.

Note the proximity of W. Mallard Dr. to Oak Creek Cliffs Drive above and to the Proposed Red Rock Road Extension in the diagram below.

The City Council withdrew its NACOG application, in part, because the City hadn’t done enough research on that route to move forward in the time allotted if the money was granted. Also, some residents near Airport Mesa threatened to sue if the City continued down that road.

So much happens outside of public meetings compared to what is actually said on the public record. Parties meet with legal counsel, city staff and council members, aiding in due process and wooing decision-makers. That’s how the ‘machine’ works.

Since the City Council members have stated support for an alternate route, it is reasonable to assume they considered it during deliberations of the Tobias/Flynn issue, which have been on the table since at least April 2007. If the City proceeded with condemnation at Oak Creek Cliffs the City would own the road. Wouldn’t that possibly create a foothold for the alternate route?

When asked whether the alternate route was a possible motive, Mr. Tobias said it had not been discussed. Ms. Scagnelli said the alternate route was not relevant to possible condemnation at Oak Creek Cliffs. Vice Mayor Jerry Frey said, “It could be.”

At its October 23, 2007 and January 8, 2008 meetings, the City Council scrutinized the implications of condemnation – weighing the potential benefits and harm to the approximately 20 home in Oak Creek Cliffs and Tobias/Flynn with the potential costs of acquisition, construction and litigation.

In the end, the City Council completely backed away from the project on Feb. 12, taking no action and effectively washing its hands of custodial responsibility for now.

Ms. Scagnelli said Oak Creek Cliffs Drive was better environmentally and makes better sense, “but if [the Oak Creek Cliffs residents] are happy with a low-water crossing, they don’t see it that way.”

Mayor Pud Colquitt said there is not enough public benefit to condemn because this mainly benefits the developer.

What of the 77 percent of Sedona residents who, according to the city’s 2004 National Citizen Survey, support an alternate route? What of the City Council’s 2004 resolution? Was the city’s 2005 proposal for NACOG construction money just a line drawn in the sand?

“Well, we got involved over the effect on land we’re sworn to protect. The best solution is if [Tobias/Flynn] paid for the improvements,” Councilman Harvey Stearn said at the Feb. 22 meeting. “I never did believe City should spend a nickel [on this option.]”

“It’s up to the USFS and Tobias to find a route [for Tobias/Flynn] that is acceptable to all of us,” Ms. Loef said.

Tobias will come to realize what it will cost him, Mr. Stearn said. The council seemed to believe he will come back to the city with a better alternative.

“Why would we ever go back to the City and start the process over?” Mr. Tobias asked. He did not approach the city, the city approached him, he said. “All we ever wanted was to be able to drive to our property,” he said.

Theoretically, the Tobias/Flynn NEPA study will move forward without Oak Creek Cliffs Drive as a potential route and, if no other action intercedes, the 400-foot bridge could become a private, gated reality.

At least Mr. Tobias, Mr. Flynn and residents of their project will be able to leave home the next time Oak Creek floods.

© 2008 Cyndy Hardy. Printed by permission. All rights reserved.