Wednesday, April 13, 2011

Ash Canyon Update

The Cochise County Board of Supervisors voted on a 2-1 margin on Tuesday April 12 to uphold the appeal by neighbors of Mary Jo Ballator to strike down the decision of the Planning and Zoning Commission to grant her a conditional use permit.

The permit authorized her to use her property to cater to bird watchers and other nature enthusiasts, some of whom are guests of her one-room bed and breakfast (Ash Canyon B&B), and most of whom are members of the general public.

This would effectively end Mary Jo's ability to run a commercial wildlife viewing site at her property.

All, however, is not lost. What I learned at today's hearing was that 13 of her neighbors appeared to be very unhappy with Mary Jo's wildlife viewing operation (while five were in support of her) mainly because of their perception of an increasing use of Spring Road, a private road with an easement expressly designated for ingress and egress to her property and other similarly situated properties.

Legal opinion is that such use is not only appropriate and permissible under Arizona law; it is encouraged by Arizona's public policy that all land be put to socially productive use. There is clearly some mistrust among the neighbors, and much of the data produced at today's hearing was disputed. There is a clear need for accurate data to replace opinions, and some coming together to work out differences.

The Cochise County Board of Supervisors missed a great opportunity today. Not only did they not appear to recognize the economic importance of visiting birders to their county ($26m per annum total economic impact), they missed the opportunity to formally request some kind of process to reconcile the differences between the two sides. Instead, two of the birding community and friends of Mary Jo, namely Tom Wood and Sheri Williamson, have already spoken to the two sides to initiate a reconciliation.

A good way forward would have been for the supervisors to conditionally uphold the decision of their Planning and Zoning Commission, requesting that the two sides work out a solution to the issues raised, which appear to focus mainly on the number and the kind of vehicles that access the road to Mary Jo's.

Vice-Chairman Commissioner English requested of the chair that they attempt some such arrangement, and voted to overturn the appeal by Arthur Douglas.

One potentially sticky situation was set up today. At the outset of the meeting the County Attorney advised the Commission that they should not base their decision upon the legal aspects of the use of the easement: this was the concern of the Superior Court. Yet the clear decision of Commissioner Richard R Searle was based on this: he said in his summing up that coming in to the process today he was in favor of overturning the appeal but was persuaded not to do so based on some uncertainty regarding what the neighbors were telling him about the legal rights outlined in the property deed.

Chairman Commissioner Patrick Call was clear from the outset that he would support the appeal because of the concerns of the neighbors, which focused on the use of the road by visiting birders.

Read the legal opinion provided to Mary Jo (which we will shortly post to our web site), which states: Ms. Ballator and her guests may use the easement so long as their use does not interfere with the ingress and egress rights of dominant estates. Left unresolved, this situation could end up in the Superior Court.

A better solution is a negotiated settlement between Mary Jo and her neighbors that allows Mary Jo to make a living from her property and addresses issues that the neighbors have.

We will continue to advise you on news and ways by which you can help.

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