After nearly six years of planning, staff reviews, public hearings and litigation, the Arizona Water Co. has been cleared to proceed with its plans for installing a 1.5-million-gallon water tank and pumping station off State Route 179.
The Project
AWC applied for a conditional use permit in January 2017 “to provide a water storage and pumping facility in the east Sedona area to support adequate water supply and fire protection” on a lot the company had purchased in 2012 at 55 Bell Rock Trail.
To meet the requirements of Sedona’s planning code for residential neighborhoods, Water Works Engineers of Scottsdale prepared a design for AWC intended “to minimize visual impact,” according to AWC’s planning submission.
The drawings submitted with the application show the tank itself to be almost invisible below grade. Only the pumping, electrical and chemical storage rooms atop it, which have an area of about 2,600 square feet, are visible in the plans. AWC also specified in its submission that the buildings would feature minimal signage and dark skycompliant lighting, and that they would be surrounded by trees “to soften the lines of the building and structures, and to blend it with the surrounding natural terrain.”
Community Concerns
AWC held three public meetings to enable local residents to provide comment on the tank proposal, with construction traffic and noise, stormwater runoff and the location of the tank in a residential neighborhood being the main concerns that emerged.
“This tank does not belong in our neighborhood. Your plan is flawed,” Carol and Duane Roland told AWC at the first neighborhood meeting.
“We don’t want a commercial water facility in a residential area,” Carole Hampton agreed. Multiple residents, including Al Beaudin and Ron Minzer, expressed concern that the tank would lower their property values.
Other neighbors proposed alternatives.
“Understand the need but not in [the] residential area of Mystic Hills,” Tom and Sharon Foulds commented. “Consider smaller tanks in the middle of every roundabout on 179.”
Marlene and Ron Hanson suggested expanding the Little Horse Trail parking lot and putting the tank underneath it.
Larry Kane denied that there was a need for the tank in the first place: “I have lived in Mystic Hills for over 20 years and never had a water shortage,” he said. The Mystic Hills Homeowners’ Association also protested that the siting would be a “hardship … unfairly forced upon our development.”
Vincent and Michelle McGeary of 20 Cathedral Rock Trail emerged as the strongest opponents of the proposal.
“A project of this magnitude simply does not belong in a small, residential community,” Michelle McGeary said, describing the tank as a “hazardous chemical storage and treatment facility” that would destroy the “residential sanctity of a neighborhood.”
“The project is no simple water tank,” Vincent McGeary stated in a letter to the Planning and Zoning Commission on Aug. 2, 2018. “In reality, the Company intends to build a massive underground and above ground tank surrounded by an industrial facility for storing hazardous chemicals, maintaining an office, and operating pumps and treatment equipment … This is not a permitted conditional use.”
“Sedona lacks the legal authority to grant the permit,” McGeary argued in a subsequent letter on Oct. 15.
In spite of the concerns of residents that their views or property values might be affected by the tank’s construction, or that it was an inappropriate use of residential lots in a high-end subdivision, the Planning & Zoning Commission approved the conditional use permit for the tank on Oct. 16 by a vote of 4-1.
P&Z Appeal
On Oct. 31, 2018, Vincent McGeary appealed the Planning & Zoning Commission’s decision to the Sedona City Council, arguing that it was “arbitrary and capricious” for the commission to issue a permit for “an industrial water treatment plant with hazardous chemical storage” that could not be permitted in a residential zone according to the building code, and that the commission had not made the findings it was legally required to make under the zoning laws.
By “hazardous chemicals,” McGeary was referring to sodium hypochlorite, or chlorine bleach. His 44-page appeal included 33 uses of the term “sodium hypochlorite,” not counting its appearance in the safety data sheet for sodium hypochlorite that he attached — but did not use the term “bleach” once.
McGeary’s appeal also included two letters from engineers George Sudol and James F. Murnane II, stating that “an engineer would not consider this a water tank project. This is a water plant and treatment facility.”
Sudol stated in his letter that he was a mechanical engineer employed at the Picatinny Arsenal in New Jersey, working on countermine devices; Murnane is also from New Jersey and appears to have been similarly employed based on his patent applications, which include one for a propeller for a grenade.
The City Council heard the appeal on Jan. 23, 2019, and denied it unanimously.
McGeary then filed a special action in the Coconino County Superior Court to block the permit. The court concluded that the commission’s decision “lacked any findings of fact” required by the land development code, and remanded the permit to the city to have it explain its findings on April 14, 2021.
The commission subsequently reapproved the permit unanimously on May 18, and the City Council did the same on Sept. 29. After receiving replies from both the city and McGeary, the superior court vacated the CUP on Dec. 7.
McGeary, an intellectual property attorney from New Jersey, represented himself throughout the process. He was the sole plaintiff.
Reversed on Appeal
On Oct. 6, 2022, the Arizona Court of Appeals unanimously reversed the Superior Court’s judgment.
“If there is credible evidence to support the [Planning & Zoning] Commission’s decision, it must be affirmed,” the court wrote. That the commission had adopted the findings of city staff was sufficient to establish the required finding of fact because there was “no provision of the Development Code that expressly prohibits the commission’s method of making the required findings.”
The Court of Appeals also found the commission had conducted thorough and “robust” discussion of the permit application during the planning process, contrary to the argument that the granting of the permit had been arbitrary and capricious.
“The [superior] court abused its discretion by failing to find credible evidence supported the decision to grant the permit,” the judgment stated. “Because there is substantial record evidence to support the appellants’ decision to grant the permit, the superior court had to affirm. The court abused its discretion by vacating the appellants’ decision.”
Furthermore, the Court of Appeals ruled that “the [superior] court abused its discretion by entering judgment for McGeary despite concluding that he did not meet his burden.”
“The superior court recognized that the decision to grant the permit was presumptively valid and that ‘one who attacks it … carries the burden of showing the decision to be against the weight of the evidence, unreasonable, erroneous, or illegal as a matter of law,’” the Court of Appeals ruling stated. “The [superior] court found that it could not ‘determine from the record … if the commission’s decision and the council’s decision to grant the [permit] was or was not arbitrary, capricious, unlawful, or not supported by substantial evidence.’ Yet the court entered judgment for McGeary. This was legal error.”
Consequently, the Court of Appeals wrote, “We reverse the superior court’s orders vacating the appellants’ grant of the conditional use permit.”
McGeary declined to comment on the outcome of the suit or on whether he intended to appeal the latest decision to the Arizona Supreme Court.
Now that the permit has been reinstated, AWC president Fred Schneider stated that the company is planning to put the project out to bid by the end of the month, with bids expected by March 2023.
“The plans are a little old, so we’ve updated the plans already,” Schneider said. “We’re hoping to be able to award the winning contractor probably sometime in April.”
Schneider expects construction to last approximately 18 months, with preliminary work beginning in the summer of 2023 and completion due by the end of 2024.
AWC previously stated in its proposal that the excavation stage of the tank’s construction was expected to take three to four months. The company plans to use blasting in place of jackhammers and excavators as much as possible in order to reduce noise and cut construction time by several weeks.
Schneider does not expect any further delays to hold up the process. “My understanding in talking to the city and the other folks is that everything has been worked out,” he said, adding that McGeary’s deadlines for filing further legal appeals have passed.
“This is a desperately needed project for that area of the community,” Schneider concluded.
