Consideration of Proposed Amendment to Observatory Mesa Right-of-Way Easement
 

This summary describes the status of an easement through Observatory Mesa Natural Area to a series of privately owned parcels, known as Right-of-Way 16-88092 (“the ROW”). The ROW is within the boundaries of the City of Flagstaff.  This item was on the City Council agenda on June 25, 2024. The purpose of this agenda item is to briefly refresh the Council on this item, to continue to review private property owners' request to revise the right-of-way easement through the protected Observatory Mesa Natural Area, and for the Council to provide direction on next steps. Private property owners are asking to modify the existing ROW to allow for the construction of a twenty-foot-wide driveway to provide better access to their private properties so they can be developed.
 
Background:

• In 1986, the ROW was purchased from the Arizona State Land Department for the development of “a public roadway.” It has not been developed and remains a primitive dirt road approximately 10 - 15 feet wide. It provides legal access to a series of private properties.
• In 2014, the City accepted a $6 million grant (Grant 231303 - Observatory Mesa: Observatory Mesa Growing Smarter) award from Arizona State Parks for a Deed of Conservation Easement to protect and preserve the Observatory Mesa Natural Area. Because the ROW was created prior to the Deed of Conservation Easement, Arizona State Parks recognizes the rights of the holders of the ROW to access private properties. The ROW allows for the construction of a public roadway on property protected by the Deed of Conservation Easement.
• The City has been informed that certain individuals seek to develop currently undeveloped private properties that use the ROW for access. The landowners of seven parcels totaling 114 acres abutting Observatory Mesa Natural Area (Parcel Numbers 11105002C,11105002E, 11105002F, 11105002H, 11105002J, 11105002K, 11105002L) are seeking improved access to their properties to construct a driveway, which is required before building permits can be granted. The proposed driveway would extend from Hidden Hollow Road approximately one mile through the Observatory Mesa Natural Area.
• According to information shared with the City by the engineering consultant working with the private property owners, the construction of the driveway within the boundaries of the existing ROW would be difficult due to topography constraints.
• City staff have met with the private property owners on multiple occasions and provided recommended changes to their construction plans to reduce the impact to the Observatory Mesa Natural Area, and those changes are reflected in the attached concept plan set.

Fire Access Driveway Design Criteria requires:

• All weather surface certified by an engineering testing lab to withstand a minimum weight of 80,000 GVW. Engineer certification required.
• Minimum width of 20 feet.
• Access turning radius shall accommodate a 47-foot fire truck.
• Minimum overhead (vertical) clearance of 13’6”.
• Grades not to exceed 10% longitudinal, 5% lateral.
• Minimum 45’ on center turning radius (35’ inside and 55’ outside).  These are the minimum dimensions permitted to allow turning and maneuvering through the site.

Area impacted:

• The legal description for the current ROW alignment encompasses 3.52 acres. The proposed revised ROW alignment for the 20-foot wide driveway would encompass 2.7 acres. However, the total estimated area to be impacted during the construction of the driveway is 3.75 acres. The additional 1.05-acre area impacted by construction would be rehabilitated by the private property owners as a condition of the amended ROW easement.
• If the ROW was revised, it would permit a 20-foot wide driveway plus the area needed for engineering the driveway, such as slope cuts and fill. The slope cuts and fill could be revegetated as a condition of the amended ROW easement but would impact the condition of the Natural Area.
• Approximately 48 acres are located to the East of the current ROW easement. A well-traveled driveway could have impacts on wildlife use of that acreage.
• Staff are working with the community to develop a trail plan for the Observatory Mesa Natural Area. The implementation of this trail plan could include new trails, parking, and signage. A well-traveled driveway could have impacts on recreation. 

State of Arizona Involvement:

• AZ State Parks and Trails has asked the City of Flagstaff to review the request and determine its decision on the request to revise the ROW.
• Following City of Flagstaff general approval, the amended ROW and construction plans must also be approved by Arizona State Parks and the State Historic Preservation Office. This application process is administered by State entities and not the City.

Deed of Conservation Easement Parameters for the Observatory Mesa Natural Area

• Given the acquisition process, Arizona State Parks holds a deed of conservation easement over the entirety of Observatory Mesa Natural Area. This deed of conservation easement dictates what types of improvement projects are allowed within the Natural Area. This is a legal mechanism to protect the natural resources and baseline documentation conditions of the property (condition of the property at the time of acquisition). According to the deed of conservation easement, Arizona State Parks is required to approve all improvements and development on the property in writing. Arizona State Parks has 60 days to review these written requests and provide a response. If a response is not received, it is considered a denial. Additionally, the City is allowed to improve up to 20 acres of the Natural Area with trails, trailheads, parking areas, signs, etc.
• Observatory Mesa Natural Area is deemed to be used for a) protection of wildlife habitat; b) preservation of rare native plant communities; c) environmental education; d) scientific research; and e) provision of controlled public access for passive recreation such as wildlife viewing and non-motorized use of trails as well as continuation of traditional uses including hunting.
• Facility development will consist of low-impact trails, interpretive facilities, and the most basic visitor amenities such as a parking area and restrooms. In the long-term, an educational facility may be developed to support education and research activities on Observatory Mesa.  In accordance with the conservation easement held by Arizona State Parks, no more than 10% of the acquired land, up to a limit of 20 acres total, may be eligible for alteration or development, and no changes may be made to the parcel that would seriously or negatively affect its conservation and open space values.

The Open Spaces Commission has reviewed this item and formulated a recommendation for City Council consideration. Open Spaces Commission Recommendation:

• The Open Spaces Commission recommends that the request to amend the right of way easement #16-88092 be considered by the City Council subject to the conditions in the current ROW easement and the following additional conditions:
  • Require the creation of an HOA to provide a legal entity responsible for maintaining the conditions.
  • Require a performance bond for the adjustment of the dirt road to ensure that the work will be completed and to warranty the work for three years to ensure proper construction.
  • Require all construction on Observatory Mesa Natural Area Observatory Mesa Natural Area property to go through the Arizona State Parks and Trails Conservation Easement review requirements, which include but are not limited to an archaeological survey, Arizona State Parks and Trails review, and State Historic Preservation Office review before construction can begin.
  • During the road construction, require a revegetation specialist (i.e., ecologist, botanist, vegetation specialist) who is experienced in restoration ecology and local native plant communities be included in the project team to assist with project planning, direction, construction observation, monitoring, to document any impacts to the Natural Area, and provide prior notification to the open space Section impacts and planned mitigation efforts.
  • All sections of the existing roadway that are not utilized in the proposed alignment must be decommissioned and restored to open space standards cited in the Restoration Guidelines.
  • Require the road to be constructed on the private property where the ROW easement currently parallels the Observatory Mesa Natural Area property on the east boundary.  
  • Require the parcel owners to revegetate the road’s cut and fill locations and abandoned alignments to open space standards cited in the Restoration Guidelines.
  • Require ongoing road (driveway) maintenance.
  • Require all future utilities to be placed underground in the ROW so as not to interfere with the viewsheds on Observatory Mesa Natural Area.
  • Require Dark Skies Compliant Lighting on all light sources within the parcels.

General questions and answers the Commission fielded and considered:

1. How did the City become involved in this situation?
   1. The ROW easement was in place when the City acquired Observatory Mesa Natural Area from the Arizona State Land Department. The City of Flagstaff inherited the ROW easement as part of the acquisition process and is now responsible for administering the easement.
2. What public outreach efforts were associated with this request?
   1. Letters and postcards sent to Hidden Hollow residents.
   2. Open Space Section sent out an email notification to their list.
   3. HOA notification for neighborhoods abutting the Observatory Mesa Natural Area.
   4. Informative flyers were posted at the Observatory Mesa Natural Area's main entry points and on notification boards throughout the community.
   5. Community calendar notifications.
   6. PROSE Facebook event was created.
   7. Open Space Commission public participation (12/11/2023, 01/22/2024, 03/25/2024, 04/22/2024).
3. What are the primary City staff concerns associated with this request?
   1. Respecting the legal rights outlined in the existing easement.
   2. Ensuring the Deed of Conservation Easement for Observatory Mesa Natural Area is not violated.
   3. Minimizing any impacts to the conservation values, ecological resources, and recreational experience of Observatory Mesa Natural Area.
   4. Ensuring community direction and property purposes are upheld.
   5. Ensuring any new construction meets access requirements outlined in the Fire Code and Flagstaff Zoning Code.        
4. What are the primary Open Space Commission concerns associated with this request?
   1. Respecting the legal rights outlined in the existing easement.
   2. Ensuring the Deed of Conservation Easement for Observatory Mesa Natural Area is not violated.
   3. The proposed ROW amendment and ultimate road construction are not a benefit to the Observatory Mesa Natural Area property. Originally, the ROW easement was written in 1986 by the Arizona State Land Department. Nearly 40 years later, we now know that things have changed and that the purpose of the property is stated through voter-approved funds used to purchase the property, City directives for managing the property for the benefit of the community, preservation and recreation, and the deed of the conservation easement.
   4. The importance of the Commission’s recommended conditions being carried forward to help limit impacts to the Natural Area.
   5. Isolation of approximately 48 acres of habitat by the driveway alignment.
   6. Impacts from traffic at full development on recreation, wildlife habitat, and overall ecology.
   7. Impacts to Hidden Hollow residents.
   8. Impacts on the property during construction and restoring the property after the temporary construction easement ends.
5. What is the process for Arizona State Parks to approve this project within the Natural Area?
   1. The private landowners must submit a proposal for consideration to Arizona State Parks and Trails and the State Historic Preservation Office. This written proposal and request must include engineered drawings of the roadway and outline the acreage associated with the new alignment of the roadway. Specifically, Arizona State Parks and Trails is interested in any acreage that will be impacted within the Natural Area if construction requires the private property owners to construct outside of the legal description of their existing easement. Per the terms of the deed of conservation easement, Arizona State Parks has 60 days to review the request and provide a written response. If a response is not received, it is considered a denial of the request.
6. What is the maximum number of units on the parcels that could be accessed by only one route for ingress/egress?
   1. This question can only be accurately answered once the City receives an application as different standards apply based on the proposed use. 
7. Do these city parcels have any other existing legal options for utilities and ingress/egress?
   1. It may be possible for the property owners to work with abutting private property owners to gain access.
8. Would the City of Flagstaff be compelled to provide utilities to the parcels and, if not, would they permit septic?
   1. The developer would be required to provide utilities. The City allows septic systems for rural properties, subject to Arizona Department of Environmental Quality (ADEQ) approval.
9. If the City of Flagstaff allows only one ingress/egress, how many splits could occur given that the current zoning is RR 5?
   1. The current zoning is RR-Rural Residential. Because the parcels in question are larger than 2.5 acres, they cannot be divided using the lot split process. Any future division of land will require a subdivision plat application.
10. What is the process for the City of Flagstaff to approve the project and amend the easement?
    1. The Open Spaces Commission reviewed the request and made a recommendation to the City Council.
    2. City Council will be asked to review the request to amend the ROW easement to gauge if Council would entertain an amendment to the ROW easement.
    3. The private landowners would have to submit the project for review to the Arizona State Parks and Trails and the State Historic Preservation Office.
    4. If Arizona State Parks and Trails and the State Historic Preservation Office approve the project the private property owners would be required to develop a final concept for submittal to the city’s review process

General questions and answers from the City Council, June 25, 2024 agenda item:

1. What is the purpose of requiring private property owners to form an HOA?
   1. Creating an HOA would share road maintenance and other responsibilities among all property owners to ensure accountability is shared.
2. What are the possibilities for the city to get a new request to connect this driveway to another location?
   1. Connecting the proposed driveway to another location would not align with the city property’s intent. The city and Arizona State Park’s processes must review and approve all groundbreaking developments. Making additional connections would likely not align with the Conservation Easement parameters.
3. What would the private property development look like?
   1. This question can only be accurately answered once the city receives an application, as different standards apply based on the proposed use. The current zoning is RR-Rural Residential. Because the parcels in question are larger than 2.5 acres, they cannot be divided using the lot split process. Any future division of land will require a subdivision plat application. Current code and utilities allow the construction of duplex units plus accessory dwelling units (ADU).
4. How would the individual private property owners access their properties?
   1. Private property owners stated that they would provide easements to the various property owners through their private property.
5. Does the Forest Service plan additional roads in the Observatory Mesa area that would connect to this location?
   1. The city does not know future plans for additional Forest Service roads in this area.

There is no financial impact.

There is no policy impact.

There has not been a previous Council decision, however the Council heard the item during a work session discussion on June 25, 2024.

• Make no changes to the existing easement
• Recommend amending the easement with the conditions provided by the Open Spaces Commission
• Recommend amending the easement with Council determined conditions

Effective governance

There is no connection to the Regional Plan

There is no connection to the Carbon Neutrality Plan

There is no connection to the 10-year Housing Plan