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.