Water War

A Sierra Vista lawmaker launches an assault on sustainable strategies in Tucson

At first glance, it's tough to imagine Painted Hills as the source of a protracted fight over Tucson's water future. Hushed in the afternoon calm, slopes dotted by saguaros, these hills could be a poster child for Sonoran Desert tranquility.

But they're also bone-dry. And that's the whole point.

Back in 2005, the Dallas Police and Fire Pension System spent $27 million for the Painted Hills property, which covers 289 acres near the westside junction of Anklam Road and Speedway Boulevard. That whopping price tag, wildly beyond the appraised value, left local real-estate wags scratching their heads.

Seven years later, the pension fund seems stuck with a pricey white elephant. The developer, Land Baron Investments of Las Vegas, has yet to build a single house at Painted Hills, for reasons that may mostly be due to its own sloppiness.

In a nutshell, the developer let its service-assurance letter from Tucson Water expire. In the meantime, the city clamped down on its ever-expanding service boundaries, leaving Painted Hills out in the cold.

Enter the lawyers.

By 2008, attorneys with the law firm Lewis and Roca had notified the city of their intention to sue for damages totaling $46.25 million. Two years later, that case was dismissed in Superior Court. A year after that, it was also rejected by the Arizona Court of Appeals.

Amid this litigation, the Tucson City Council temporarily caved, voting to annex Painted Hills and thereby ensuring municipal water service. But the council reversed itself a week later, requesting that Pima County consider acquiring the area through a land trade, and then bring it into nearby Tucson Mountain Park. The county, however, claimed it had no property available to swap.

Not that county officials weren't quite familiar with Painted Hills. In 1997, taxpayers approved a bond package that included $1.8 million to purchase the property for open space. Another bond election, in 2004, boosted that amount to $4.5 million. But the county and Painted Hills' previous owners could never settle on a price for an area ranked among the largest tracts of virgin Sonoran Desert near town.

Eventually, it was the pensioners of Dallas who found themselves vested in a picturesque property completely devoid of water. Which brings us to an especially timely axiom: When all else fails, go to the Arizona State Legislature—particularly if there's the chance for a poke at Tucson or Pima County.

In February, Republican Rep. David Stevens of Sierra Vista ushered in House Bill 2416, a measure that would force Tucson Water to service Painted Hills. The legislation has since been sliced and diced under pressure from opponents including the cities of Phoenix, Scottsdale, Yuma and Casa Grande. Obviously, they sniff the potential for developer-driven mayhem on their own water-service boundaries.

And it all could have been so easily avoided. After all, the Painted Hills developer was given that water-assurance letter in February 2007, guaranteeing access to city water if the project began within 12 months.

By December of that year, Tucson had implemented an interim policy restricting water service to current boundaries. "There was some concern about the long-term viability of the city's water supply if it kept expanding the service boundary area outside the city," says Tucson Water attorney Chris Avery.

Two months later, Painted Hills let its water-assurance letter lapse. In fact, the developer "did not come in and do anything with respect to water service until late September or early October of 2008," Avery says. "They had every opportunity. When they got a water-assurance letter in the first place, they could have submitted a master plan by February 2008, and they would have been grandfathered in."

Richard Tettamant, top administrator for the Dallas Police and Fire Pension System, didn't return a call seeking comment about why the assurance letter was allowed to lapse.

Given this convoluted history, the chutzpah of Rep. Stevens truly rankles local officials. As it stood when we last checked, his measure would force the city to serve any property lying within 1,500 feet of an existing city water line, or adjacent to utility pipes on a public right of way.

Stevens didn't return a phone call seeking comment. Nor did Lewis and Roca attorney Keri Silvyn, a prime cheerleader for his legislation. Silvyn is also board chairwoman for Imagine Greater Tucson, a sprawling, collaborative project aimed at creating a "shared regional vision" for our community.

Unless that vision includes more sprawl—as in forcing Tucson Water to expand its service boundaries ad infinitum—Silvyn's twin roles might be a tad contradictory. That's certainly the opinion of Ward 1 Councilwoman Regina Romero, who has pushed to have Painted Hills preserved as open space.

"I just think it's such hypocrisy," Romero says of Silvyn. "She's the attorney who went up to the state Legislature to do this bill, which would potentially dismantle our water policy, and make us service anyone who asks for water outside of the city."

Should that bill pass—its fortunes were up in the air as of our press deadline—Painted Hills would be probably be first in line. And to Ivy Schwartz, that would be a crime. "In two bond elections, the voters approved the area to be bought for open space," says Schwartz, president of the Tucson Mountains Association, a neighborhood group long opposed the development. "So the Legislature is doing an end run around the citizens of Pima County, and even doing an end run around the courts, to try to force the city to provide water to a development there.

"It's really very sad," she says, "because not only is that incredible property—along a scenic highway that goes over Gates Pass to the Arizona-Sonora Desert Museum—but they would also take out 900 saguaros. They would blade the desert. They would disrupt wildlife linkages.

"There are all those conservation reasons why that would be a terrible thing to happen. But in a broader sense, the Republicans who vote for these kinds of things are the same ones who are constantly saying that they believe in local control. ... And then they turn right around and tell the cities and counties what to do."

Carolyn Campbell is executive director of the Coalition for Sonoran Desert Protection, which works to preserve open space such as Painted Hills. "The people from Dallas," she says, "who speculated on a piece of property in the Tucson Mountains, and spent about six times more than it's worth, are leaving no stone unturned.

"They've gone to court and lost twice. The court decisions were both pretty clear. So when all else fails, go to the Legislature, because the Legislature will do anything—regardless of whether it's legal or constitutional."

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