The Sedona City Council turned down developer Chris Tortorello’s preliminary plat application for the Refuge at Sedona, an 11-home luxury subdivision proposed for 165 Golden Eagle Drive, by a 5-2 vote at its Dec. 13 meeting due to concerns over short-term rental usage and traffic and fire safety.
While the application had previously been recommended by the Planning and Zoning Commission in a 4-1 vote on Oct. 18, and had met all code requirements or qualified for the necessary waivers, the council said the proposed subdivision presented too many combined problems to warrant approval.
Short-Term Rentals
At the beginning of the hearing, Tortorello’s attorney Tony Cullum referred to Arizona Revised Statute §9-500.39, which “basically allowed the city to control, for the first time, short-term rentals.” Cullum quoted a press release from former Gov. Doug Ducey: “‘The cities are no longer having to look to the developers to regulate the CC&Rs.’”
Both Sedona Mayor Scott Jablow and Councilwoman Jessica Williamson took exception to this statement.
“The state has not given us authority to do anything meaningful with short-term rentals,” Williamson said. “That’s simply not true. The city still has no ability to actually regulate them, to treat them as the businesses they are; 16% of our housing stock is short-term rentals.*”
“I don’t know where you received that information from, but, as Councilor Williamson said, there were a lot of inaccuracies in the information you gave,” Jablow said.
STRs currently account for about 15% of Sedona’s housing stock, not 60%.
ARS §9-500.39 permits cities to regulate short-term rentals to protect public health, to enforce zoning ordinances, to prohibit the use of an STR for a number of legal and illegal activities, to require STR owners to obtain permits and provide contact information, to require public notification of STR conversion and to require insurance for STRs. The city council, including then-Vice Mayor Jablow and Williamson, voted to approve an extensive set of regulations based on this statute on Nov. 22.
“I don’t think that property owners should be restricted without the laws being changed,” Tortorello said. “I’m in favor of following the laws of the land. I don’t intend on building shortterm rental homes.”
“Short-term rental homes are the homes in Sedona,” Williamson said. “Every home in Sedona is a short-term rental home. Luxury homes, non-luxury homes, everything. And while it’s certainly your right not to restrict it, and to maximize the profits that come from, presumably, people who are going to pay top dollar because they will get huge returns on the property … I’m making a plea.”
“I would really urge anybody who cares about Sedona … to consider deed restrictions,” Williamson added. “It is the way to sort of exhibit, actually, a care for and a love of our community.”
“The only real answer is deed restrictions from the developer. As a new development, that is the perfect answer,” Jablow said. “I think that may be something that you want to consider for the benefit of the neighbors.”
Similar comments were made by members of the public.
“Having these types of commercial ventures, which is what a short-term rental is, in these locations, is really not appropriate,” said Mark TenBroek, an Uptown resident. “Given the high volume of renters, there could be up to 70-some cars” in the subdivision at one time. He urged the council to approve the application only if the developer offered deed restrictions.
Maryann Livingstone, of Thunderbird Hills, pointed out that the small lot sizes of the Refuge would effectively double the housing density of the area. “Would adding 11 million-dollar homes and millionaires or Airbnbers into our town be part of the problem or part of the solution?” she asked. “We have limited open spaces in Sedona.”
The city of Sedona occupies 11,712 acres within the 1,856,038-acre Coconino National Forest. No part of the city is more than a mile from open space and most points within the city are within half a mile of open space.
Traffic and Fire Safety
Council members were also concerned by the proposed Refuge’s narrow entry road, lack of a second access point and potential to increase the risk of fires, particularly Vice Mayor Holli Ploog and Councilwomen Kathy Kinsella and Melissa Dunn.
Tortorello pointed out, with respect to the possibility of fire danger, that “all of these homes will be fire-sprinklered” and that the Sedona Fire District does not view the proposal as creating increased risk.
“So your response is that each of the homes will be fire-retardant and therefore they’ll take care of themselves and reduce the risk of fire?” Dunn asked.
“Yes,” Tortorello replied.
“I understand about sprinklers. We still have fires. We have wildfires,” Ploog said. “Sprinklers are not necessarily going to prevent wildfires.”
In reply to a question from Councilman Pete Furman, city Planning Manager Cari Meyer stated that staff had confirmed with the fire district that the proposed road presented no access problems for their equipment.
“They said they require 20-foot clear, and so a 24- foot wide [road] would be sufficient for their needs,” Meyer told council.
“I just want everyone to be clear that these questions have been specifically put to Sedona Fire, and I think Sedona police has already considered these aspects as well, and they have expressed their comfort level, their lack of concern, specifically, about egress and exit,” Furman emphasized.
“I have a lot of concerns with the choke point,” Jablow said. “I have some issues with the land development code, and the items that aren’t meeting the standards, but legally, especially in the case of the fire district, they have their opinions.”
Previously, at the Sedona mayoral debate on Oct. 7, 2022, Jablow had rejected his opponent Samaire Armstrong’s criticism of the city’s development codes.
“Building codes keep people from having fires in their house,” Jablow had said at that time.
Jablow also read from a petition signed by 32 residents urging denial of the application due to the number of waivers it would require, “two of which constitute a serious safety threat.”
Definitions
Councilman Brian Fultz referred to the contrast between the Sedona Community Plan’s goal to “encourage diverse and affordable housing options” and the proposal’s emphasis on custom luxury homes.
“I’m just wondering how that lines up with diverse and affordable housing options,” he told Tortorello.
“You really have to define affordable housing if we’re talking about Sedona’s workforce,” Tortorello said. “Affordable to you or me or somebody else that might be retiring is affordable. It’s relative. Affordable in terms of workforce housing, no. I don’t think that’s going to happen anywhere in Sedona.”
Fultz then noted that the application stated it was supportive of a mixed-use walkable district. “What’s mixed use about this subdivision?” he asked.
“There’s a good walkability factor here,” Tortorello said. “In terms of mixed, there’ll be different varied types of housing, from, you know, maybe 1,800 square feet to 3,000 or 4,000 square feet.”
“Mixed-use typically would mean housing, business, more than just one use,” Fultz pointed out.
Ploog inquired as to the expected price range of the finished houses. Tortorello estimated that they would sell for between $1 million and $1.2 million.
“With that being the average home price now, a million dollars, that’s not really necessarily the luxury market,” Ploog observed.
Legal Questions
Neighbor Keith Barnhart, whose property adjoins the proposed subdivision, raised a point late in the proceedings.
“This [property] meets all the requirements of a prespcriptive easement,” Barnhart told the council. “This land has been trespassed on for decades, out of Settlers’ Rest, Thunderbird Hills and, I guess, Keller’s Track as well. People use this pony trail all day long. So I would say the city has leverage with the developer on this thing with the simple threat of pushing through a prescriptive easement. Cause it’s right in the middle of his buildout.”
The council recessed into executive session for legal advice from City Attorney Kurt Christianson immediately after Barnhart’s statement.
“To establish a prescriptive easement requires open, notorious, hostile and continuous use of the land for a 10-year period,” lawyer David J. Hindman explained. “If the owner has given actual or implied permission for the use of the property, then the permitted use will not result in adverse possession or a prescriptive easement.”
While Barnhart’s argument would appear to apply equally to the Sedona Cultural Park, which Sedonans have used recreationally for almost 20 years since its closure, there is no evidence that the city of Sedona used the threat of a prescriptive easement as leverage during its purchase negotiations with the park’s former owner Michael Tennyson.
Declining to Answer on the Grounds
Although Williamson made the strongest representations about the potential STR threat the Refuge posed to Sedona’s quality of life, she nevertheless moved that the application be approved. None of her fellow council members seconded the motion.
Christianson then informed the council that it would be necessary for them to give an explanation of their reasons for denying the application.
“It wasn’t denied,” Kinsella said. “It just wasn’t approved.”
“If it’s not approved, it’s denied,” Christianson explained.
At that stage, Furman jumped back into the proceedings: “Mayor, I’d like to second the motion, if I could, at this time.”
“We already voted on that,” Kinsella protested.
“No, we have not,” Jablow said. After further brief discussion, during which Fultz, Kinsella and Jablow stated their intention to oppose the motion, the council voted 5-2 to deny the application through a formal vote rather than commit themselves to a public statement as a body that they were denying it due to safety concerns and a desire to prevent STR expansion.
Furman and Williamson voted in favor of approving the application. Furman had previously voted to approve it when serving on the Planning and Zoning Commission.
Tortorello did not respond to requests for comment on whether he intended to appeal the decision or submit a revised plan for the site.
Editor’s Note:
This sentence by Sedona City Councilwoman Jessica Williamson originally read “The city still has no ability to actually regulate them, to treat them as the businesses they are; 60% of our housing stock is short-term rentals.” Williamson later contacted us to state she meant “16%” not “60%,” which is how the city transcript also recorded the sentence. We have corrected the story to indicate the number Williamson meant to state.
