Baffling Buffer 

Apartment Project Spoils Teacher's Retirement Dream.

WHEN MARIAN Munsinger retired from her 33-year teaching career with TUSD last year, she hoped to live out her dream of breeding horses on her five-acre homesite just off La Cholla Road north of Magee.

In recent days, the dream's been more of a Kafkaesque nightmare, complete with mounting legal fees, ephemeral zoning conditions and a maddening odyssey into a realm governed by Robert's Rules of Order.

The trouble began in February, when bulldozers arrived to scrape a 33-acre patch of Sonoran desert bordering her property. A shocked Munsinger soon discovered that Club Carmel, a 200-unit apartment complex, was being built next door to her--with one block of units rising about 10 feet from her fence line.

"It was a surprise," Munsinger says--particularly to one of her mares, who had just given birth. The horse was so traumatized by the steady pounding of the construction, Munsinger had to move her to a vet's facility across town.

"They had these big cranes and stuff," Munsinger says. "And she's just like right there. She was a basket case. Her eyes were like saucers."

Club Carmel's convoluted history dates back to 1982, when the property was rezoned for a condominium project. As a condition, the Ryerson Company agreed to not build in a 150-foot buffer on the north and east sides of its property.

Munsinger bought her property shortly before the rezoning was passed. Back then, she remembers, La Cholla was still a dirt road; today, the Foothills Mall sits just around the corner.

The Ryerson Company never got its project on the neighboring land off the ground. The property changed hands as the years went by, falling into the hands of the RTC, which eventually auctioned it off. Finally, earlier this year, an outfit called TriVest began the Club Carmel project.

When the county approved the project, Pat Thomas, Pima County's chief zoning inspector, determined that the buffer conditions set by the 1982 rezoning didn't apply to Munsinger's property, but only to the properties north of her. In other words, Munsinger says, "I was the buffer."

Thomas did not return a phone call from The Weekly.

Thomas' ruling on the buffer requirements sent Munsinger on a journey into the labyrinth corridors of Pima County government. Munsinger's first traveled to Superior Court, where she asked for a temporary restraining order to stop construction and enforce the buffer restrictions. The developer, through his attorneys with the high-powered firm of Lewis and Roca, argued that every lost construction day would cost $7,000. Munsinger lost that round.

Her next stop was the county Board of Adjustment, where she hoped to overturn Thomas' ruling that the buffer conditions didn't apply to her property.

It was only then that Munsinger began to learn about the board's arcane meeting rules.

In her first appearance before the five-member board, only three board members showed up: Chairwoman Margaret Kenski, Dolores Kazantzis and John Soper. The vote went 2-1 in Munsinger's favor to overturn the chief zoning inspector's decision, with Soper dissenting.

Munsinger departed the June meeting believing she'd finally won a round--only to discover a few days later that overruling the chief zoning inspector required a supermajority, which amounts to a unanimous vote from three members.

She returned to the Board of Adjustment a month later, on July 5. Again, only three members showed: Kenski and Soper were back, along with Angela Weir. And again, Munsinger won two of three votes, with Soper dissenting. Munsinger had the support of enough board members to overrule Thomas and enforce the buffer requirement--but since they hadn't been at the same meeting together, she was out of luck.

"Basically, three members of the board agreed with Miss Munsinger, but since we weren't all present at the same meeting of the board, it didn't matter," says Kenski. "One of the difficulties on any board in the summer is getting enough people there.... People are on vacation and so forth."

It probably didn't help that Munsinger's attorney, Drue Morgan-Birch, had won a five-figure settlement a few years back in a lawsuit against Soper, a developer who did not return a phone call from The Weekly.

"I'm sure he's not very fond of me," says Morgan-Birch. "I suggested that (he recuse himself)."

Because she believes Soper has a bias, Morgan-Birch has requested another hearing before the Board of Adjustment. "It would be unusual," she says. "I'm surprised the other side has not made a stink about that yet."

Kenski is skeptical that the board can hear Munsinger's case again. "She would have to sue in Superior Court," she says. But she adds that the case has inspired the board to review its supermajority requirement.

"We do intend to have a discussion about our decision rules in the future, but it's too late in her case because the rules that apply are the ones that are in place at the time," says Kenski.

It's scant comfort for Munsinger, who says she's shelled out nearly $10,000 in legal fees. And attorney Si Schorr has asked that the court award the developer the legal fees for Lewis and Roca's work on the case. Morgan-Birch says she doesn't know what that will total.

"I'm afraid to find out," Morgan Birch says. "They had two attorneys from Lewis and Roca, and we're talking $200 an hour each or more. Si Schorr has been around a long time and he's got to charge a lot of money."

Meanwhile, back at the ranchette, Munsinger's days are filled with the steady pounding of hammers and the roar of machinery as workers scrambled to complete the unit that abuts her property.

Munsinger's final resort is a lawsuit against the county to establish that the buffer conditions should have been respected. But even if she wins, she doesn't expect the court will order the apartment building torn down. Instead, her best hope is a finding that the county is liable for having reduced the value of her property.

"It was a mistake. They shouldn't have overlooked the conditions," she says. "It's pretty sad."

More by Jim Nintzel


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