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High court helps define public road

Michael Kiefer
The Arizona Republic

When is a private road not private?

When the public has been using it for years.

The Arizona Supreme Court drove that decision home last week when it ruled on a 4-year-old civil case from Pima County.

The case involved a dispute between homeowners in two developments in southern Arizona. The dirt road between the two sets of properties belonged to one side, but it was used by residents on both.

The story begins in 1988, when a title company platted out a potential development near Sahuarita, a small desert town south of Tucson. It divided the ranch land into 40-acre parcels and sketched in a public road following a barely drivable Jeep trail along one end of the property.

A developer came in, bought the land and called it Entrada, which means "entrance" in Spanish. They bladed the trail to make a passable - albeit dirt - road and offered it to Pima County.

The County declined ownership of the new street but gave it a name to identify it for police and fire departments. It became Kolb Road.

Later a second development arose on the other side of Kolb Road. The developer of Sycamore Canyon cut holes in a fence along the road and traced out paths leading from the new homes to the street.

Residents of Sycamore Canyon used Kolb Road for the next several years to get to their homes.

The legal owners of Kolb Road wanted to deny access to outsiders because of the dust and the hazards the traffic caused. They also were not thrilled because they said the newcomers did not want to pay to help maintain the road.

Developers, real estate agents and private landholders do business based on assumptions about easements. If a road closes after the contracts are signed and the homeowners moved in, there could be chaos.

"This is a question of statewide concern," said attorney Charles Wirken, who represented the people who used - but did not own - the road. "There are scores of developments around this state that were created in just the same fashion."

Only way in
In Phoenix, the word "development" conjures images of tract homes or gated communities. Not here. These homes were ranchettes, more modest houses and manufactured homes.

Audrey Pleak and her husband, Robin, moved into Sycamore Canyon in 1998, the year after Kolb Road was improved, and they built their manufactured home on a road that turned off of it.

"We couldn't get home any other way," Audrey Pleak said. "It is the only access to our property."

When they moved in, Pleak said, she and her husband - and the other homeowners in Sycamore Canyon - were assured that they had legal access along Kolb.

But the traffic never pleased the homeowners in the Entrada development.

"The dust storm was unbelievable," from the heavy usage, said Jack Mann, former president of the Entrada Homeowners Association.

He said residents complained about the new roads from the time they were built. He worried about school buses and other vehicles that used the road.

"We tried to get the 57 homeowners over there to agree to a road maintenance contract and move forward," Mann said. "They said no."

Navigating the courts
With the prospect of being fenced out, the Sycamore Canyon residents instead went to court.

Pleak v. Entrada reached the Pima County Superior Court in March 2000. A judge ruled in favor of Entrada, saying that the road remained private because the county had not accepted responsibility for it.

The Pleaks and their neighbors appealed the decision up to the Court of Appeals. Those judges reversed the decision to limit access to the road.

The Appeals Court judge wrote that the title company had indeed created a public easement to attract purchasers to the property, even if the county did not want to take ownership.

If the lower court decision had been upheld, "That could have invalidated a number of rights of way and could have implicated a number of title policies," said Michael Rubin, an attorney who entered an amicus brief on behalf of the Land Title Association of Arizona. "And it would have created a nightmare. A whole bunch of people who had previously just accepted it might have taken the position that they had the right to deny access."

Roads that had been well traveled could suddenly be declared private.

The appellate decision came out of the Appeals Court in Tucson, which meant it only affected southern Arizona. When Entrada appealed to the state Supreme Court, the justices took the case to establish law for the state as a whole.

"The Supreme Court took it to tell the world that if you're going to have a private road, you better keep it private," Phoenix attorney Tom Irvine said. "We're not going to start range wars and let people cut off roads that have become historic access points. The whole point is, if you want to have a private road, don't let the public use it for 50 years."

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