April 4, 2005
Preservation advocates are worried Scottsdale is helping destroy the equestrian lifestyle and a planned citywide trail system by wiping out long-held public rights-of-way.
Officials need to reconsider the continued lifting of public easements adjacent to many private properties in north Scottsdale if they want to keep open spaces and trails accessible, said critics of the city procedures.
Debate on the subject erupted recently when the City Council voted 4-3 to abandon easements on four adjoining 5-acre properties near Lone Mountain and Scottsdale Road, an area with a path long used by horse riders.
"This kind of thing is the beginning of closing off trails and washes" that the public has traditionally used for hiking, biking and horse riding, said John Manes, who owns a small horse ranch near the area.
"The issue is the sustainability of our lifestyle," said Tony Nelssen, a former city planning commission and longtime preser- vation activist.
Losing the rights-of-way works against protection of the rural equestrian character, which is a stated goal of city planning policy for north Scottsdale, Nelssen said. The city should keep its options open for linking paths mapped out in Scottsdale’s trails master plan, he said.
"We’ve lost a lot of old trails," he said.
Attorney Lynn Lagarde, who represented property owners in the recent case, said such abandonments are not hindering any of Scottsdale’s open-space preservation or trail-building efforts.
Cities are on solid legal ground in maintaining the rights-of-way if there are approved master plans targeting the land for future roadways or as corridors for public utilities, Lagarde said.
It is routine for a city to lift the easements at property owners’ requests when no plans exist for such projects, she said.
The type of easement involved in these cases dates from the Federal Small Tract Act passed in 1938 that set aside expanses of land in the West for homesteading.
Government land was sold in 2 1 /2-to 5-acre parcels that came with public easements — typically 33 feet wide at the edges of lots. With easements, new land owners could not be blocked from access to their parcels by surrounding private properties, and to ensure roads and utilities could be accommodated in the future.
The act was repealed in the 1970s and the federal government gave local municipalities authority to decide on lifting or keeping the easements on a case-by-case basis, said Randy Grant, chief planning officer for Scottsdale.
The city has since processed more than 100 requests to abandon such easements and has granted most of them, he said.
In 1999, Scottsdale changed how it handles the abandonment requests, stipulating that requests must go through a public-hearing process. That happened because of activists’ opposition to the loss of easements, Grant said.
Scottsdale resident Leon Spiro has for years contended that the federal government did not have the authority to hand over decisions on the easements to local governments. Another resident, real estate broker John Aleo, points to various court cases and related legal opinions asserting that such easements were intended to remain in perpetuity and that municipalities alone cannot fully abandon them. The opinions indicate that utility companies or other parties affected by the easements may have a legally defensible interest in maintaining rights-of-way, even if cities revoke their interests, he said.
In a recent work session, City Council members heard a presentation on the issue by attorney Gary Birnbaum, a land law expert.
Grant said the city was assured it is handling the abandonments properly.
Still, council members remain split.
"It seems pretty clear the purpose of these things is to provide access . . . and once we give the land away, it’s gone. I don’t see a public benefit to abandoning these (easements)," said Councilwoman Betty Drake, who voted against the recent request.
Councilman Jim Lane voted in favor. Since there are no specific plans to use the land for a road or utilities, "it seemed fair" to property owners to lift the easement, he said.