Fears that developers will begin leveling the lush Ironwood desert east of Interstate 10 if the federal government strips the pygmy owl of its endangered species protection has prompted Marana to begin quickly drafting an ordinance that would restrict development of almost two thirds of the land in the town.
Known as the the Bajada Environmental Resource Overlay District, the proposed addition to the town's development code would restrict landowners to disturbing only 40 percent of their property. The overlay would cover an area of about 90 square miles east of Interstate 10 stretching from Cortaro Farms Road on the south to the Pinal County line on the north and the Shannon Road alignment on the east, according to a draft of the regulations obtained from the town.
The restrictions would be imposed on property owners ranging from those holding small five acre parcels to developers considering massive master planned communities, and concern has risen in Marana government that few property owners have been notified of the plan.
Marana's proposed overlay district contains provisions that will allow some developers to escape the 40 percent restriction if they enter into a development agreement with the town.
The bajada overlay also exempts all subdivision lots in existence and is not expected to affect some of the larger developments already planned in eastern Marana, such as Sky Ranch and Saguaro Ranch, which already have development agreements in place.
Marana Town Manager Mike Reuwsaat said the overlay is intended to protect against future development altering the character of the desert areas that the owl's federal protection has mostly preserved.
"It's in case we have a situation where we have someone say 'well, the pygmy owl's gone and I want to blade and grade 100 percent of my property.' That obviously doesn't fit with what we've been able to achieve in the community over the last three or four years. We would be concerned about putting a high density urban development into an area that has been used to lower impact. It just wouldn't fit," Reuwsaat said.
A district court judge in Phoenix is considering a petition filed earlier this month by the U. S. Fish and Wildlife Service to remove the bird from the endangered species list. The petition followed a decision by a federal appellate court in August that ruled the service had acted "arbitrarily and capriciously" in listing the owl as endangered. The judge has not scheduled a date to consider arguments in the case.
Marana's 40 percent disturbance restriction is less stringent than the 20 to 30 percent restriction commonly imposed on developers by the Fish and Wildlife Service in the areas designated in 1997 as critical habitat for the cactus ferruginous pygmy owl. The boundaries of the habitat remain ambiguous after a federal court tossed out the service's original designation in 2001 and ordered it redrafted.
Leslie Liberti, Marana's environmental director, said many of the developments planned for the areas east of I-10 north of Cortaro are already governed by biological opinions from the Fish and Wildlife Service and development agreements. The overlay is targeted at those developers who are not already governed by the agreements.
"A lot of the projects that are coming in and submitting plats to the town have an approved biological opinion, so they're working under the same requirements of the biological opinion regardless if the owl is delisted or not," Liberti said. "Other areas that are potential development areas that are privately owned have already been talking to the town and what's been governing the negotiations is more the bajada overlay and the town's general plan rather than the pygmy owl."
Bajada is a term used used by geologists to refer to the alluvial slope that fans away from a mountainous area, such as the rolling foothills that extend from the Tortolita Mountains south into Marana.
An overlay district is an additional set of guidelines that augment planning regulations for a specific area. They have been used in Oro Valley to regulate scenic corridors, in Pima County to restrict development on hillsides and in Tucson to plan development in historic districts. Marana instituted its first overlay district earlier this month to regulate commercial development in Continental Ranch.
The region east of I-10 had been considered the primary growth corridor for Marana until the federal designation of critical habitat six years ago shifted the bulk of development to agricultural land west of the interstate. Reuwsaat said the town "absolutely" hopes to continue that trend if the owl is delisted.
"There are far less environmental issues in the farmlands and it's important in the Tortolitas to maintain the drainage and riparian corridors," he said.
The largest master planned community in the overlay region is Dove Mountain, which is expected to place possibly as many as 9,000 homes in the areas north of Tangerine Road east of I-10. Many of the individual developments underway there have biological opinions from the Fish and Wildlife Service and development agreements with Marana, but it's unclear how the overlay would effect future development.
Bill Hallinan, vice president of Cottonwood Properties, which is developing Dove Mountain, refused to comment on the proposed overlay and referred questions to the Southern Arizona Home Builders Association.
Alex Jåcome, governmental liaison for SAHBA, said he had heard little about plans for the overlay, but thought the 40 percent restriction was better than the 20 percent often required by the Fish and Wildlife Service and which Pima County is considering implementing for environmentally-sensitive lands.
"We would probably welcome it compared to what Pima County is proposing with their 80 to 20 percent restriction deal. We haven't really sat down and looked at the overlay yet, but at least on the surface it doesn't seem bad compared to the county's plan," Jacome said.
The Marana Planning and Zoning Commission voted 4-2 to approve the overlay plan Nov. 19. According to minutes of the meeting, commissioners repeatedly expressed concern that property owners and the public had not received any information about the overlay.
Town planners admitted they were rushing the process because they felt a need to have the overlay in place before a possible federal court ruling lifted development restrictions in the area and the "blading and grading begins." The town may consider putting electronic message boards in the area to advise people of the proposed overlay, according to the minutes.
Marana Planning Director Joel Shapiro said last week planners are working to address the commissioners' concerns about the lack of notification before the overlay is forwarded to the town council. The council is expected to consider the matter in January or February.