Camino de Oeste isn't exactly a stranger to self-indulgence. Not so long ago, this dusty road in the Tucson Mountains meandered mostly among cactus, critters and graceful open space. But drive the camino today, and you'll find the stucco and asphalt trappings of folks who built here because they love the desert.
And that's why Robert Gersten was surprised when so many of his mountainside neighbors grew upset because he wanted to grade his own access road--albeit over a lovely and protected ridge.
Still, there are plenty of reasons folks despise Gersten's idea. For one, the ridge crests over Tucson Mountain Park and elbows the David Yetman Trail. Then there's the plan's breathtaking bluntness. It simply calls for an ugly little road right over the ridge, with no bells and whistles--careful angling or naturalistic riprap--that might produce less of an eyesore.
"It's gonna be messy," Gersten says, on the phone from his home in Fort Worth, Texas. "It's going to cut in through that peak, and it's not going to be pretty. That's just how it is."
Then he softens a bit: "I just want to have access to the land I've owned for 37 years. I'm willing to gain access there in a way that's the least offensive for the area and the park and everyone else."
Gersten's pair of 10-acre parcels are landlocked by the property of others, leaving him little opportunity for reaching Camino de Oeste. He says he's contacted neighbors, urging them to grant him an access easement. So far, he says, none are interested.
None, that is, except for Randall Davis. Like Gersten, Davis is a former Tucsonan who now lives in Texas. And like Gersten, his land is also undeveloped, though he hopes to build there someday. The easement he's offered Gersten is the very strip running over that protected ridge.
"Nobody cares about the desert more than I do," Davis says. That's why he can't understand criticism from neighboring property owners. "I think while (those critics) do love the desert, too, once they get their fence up, they don't want anybody else out there."
But according to one of those neighbors, Gersten's plan could spell disaster. "This project would open the area above the Yetman Trail for development," says Roger Carpenter. "It would be counterproductive for the county to approve something like this when they've spent so much money trying to retain open space."
That logic apparently clicked on Monday, Aug. 20, when county supervisors voted against Gersten's special permit. In good conscience, they didn't have much choice: Pima County's peak protection ordinance, adopted in 2003, strongly discourages degrading a Level One peak--which this is--unless it's tied to a development plan, such as building or expanding a home. Even then, permission is only granted roughly 50 percent of the time, say county officials.
Gersten's plan was denied largely because he hoped to upgrade his property, hiking its market attractiveness and value. That fact--and noisy neighbors--scuttled the deal. "It's something we've been wrestling with for a long time," says Supervisor Richard Elias, whose district includes the protected peak. "I think the constituents have made (their positions) clear.
"I think it's for all our own well-being," he says, "that we continue to protect the ridges we still have and don't open ourselves up to an onslaught of requests for changes."
Not that the board's denial was much of a surprise, either, following a blistering county staff report. The review raised serious concerns over drainage on the property, as well as all-weather access to Gersten's land, which would involve crossing a wash.
"The proposed access easement," says the report, "does not include a physical connection to Camino de Oeste as it exists today, only to its right-of-way. There is a wash that runs parallel to Camino de Oeste and crosses it immediately north of the terminus of the proposed road."
In the report, U.S. Fish and Wildlife Service officials also worried about harm to the endangered, lesser long-nosed bat.
But in the end, Gersten and Davis helped sink themselves. So says Chris Poirier, administrative project manager for Pima County Development Services. "They are claiming that they're landlocked, and that without board approval, they can't sell their properties."
But rather than producing a top-shelf plan that might gain approval, "what they did is really unique," he says. "They made little to no effort to mask their proposed encroachment. They could have come in and given us a nice landscape plan to go along with the plan of a cut. In previous requests, (applicants) were able to angle the road so it wouldn't be as visible a scar. They were able to use rockwork from the rest of the existing parcels, to really blend in the color with the riprap supporting the road."
But Gersten's plan did none of that. "They made little or no effort to screen what they wanted. They simply requested to cross the ridge, via a straight line, to get to their parcels."
Contacted before the county vote, Gersten said even a board denial wouldn't stop his plans. "You cannot deny someone the use of their land when you give the community the right to protect a peak. I'll certainly have to pursue other avenues."
Those avenues could lead to court. Theoretically, he might sue adjacent landowners, forcing them to provide easements. Or he might sue the county for restricting his use of the land.
Potentially, this could even become the Proposition 207 test case everyone's been itching for. Passed last year, the so-called "eminent domain initiative" requires compensation to property owners affected by zoning changes. It could potentially hobble government preservation efforts.
According to a source at the Arizona Secretary of State's office, however, the law isn't retroactive.
That probably safeguards the county, says Poirier, "since this protected peak has been on the map since the 1970s." But on the other hand, "it could be a Prop 207 issue in that our new regulatory action (the board vote) denies the crossing of the peak."