Let’s talk about the legal problems affecting the city of Sedona.
“Which one now?” you may be asking — and that’s the problem.
The current Sedona City Council has a bad habit of ignoring the law, overreaching its bailiwick, going beyond its jurisdiction, getting sued or threatened with a suit it will lose, then caving. It’s not just embarrassing for residents, it’s a horrible waste of our tax dollars to pay our lawyers and other people’s lawyers who sue us.
The city, all seven Sedona City Council members and seven residents are being sued by the owners of the proposed Oak Creek Heritage Lodge over council’s decision last month to overturn a unanimous Planning and Zoning Commission recommendation. Council heard two appeals from two groups: A set of neighbors next to the resort and a new political action committee. Under the rules, council can only consider the basis for the appeal, not revisit the whole project from scratch.
The analogous parallel is a judicial appeal: An appeals court does not re-litigate a whole trial; instead, appellate judges look at narrow points of law to see if very specific issues of the trial were correctly handled, legal, lawful or constitutional. Council instead treated the resort appeal as a fresh zoning meeting, then voted for political reasons, not based on matters of law and fact.
Councils are supposed to write the laws and uphold them, not engage in legal brinksmanship to win petty political points. This utter foolishness was summarized by one of our Facebook comments: “Council put resident concerns before those of the developer. The developer sued. It happens.”
No, it shouldn’t. Nor should city council members knowingly put the city in a position to lose a lawsuit. Nor should council fail to follow the law and then write off that subsequent legal defeat and lawyers’ fees with a giddy “c’est la vie!”
The city’s legal errors and missteps are legion:
When the city planned the Forest Road Extension, the city took forever to use the eminent domain legal process to acquire the needed parcels, conducting work around what it didn’t own yet.
In 2021, a city staffer told a West Sedona property buyer that an office building could be converted into lodging, so he bought it with that intent. In July 2023, that same staffer said now it couldn’t be converted, so the property owner filed a notice of claim asking for a waiver in compliance with the original permission or, alternatively, $1,165,000 in compensation. Realizing their legal error, council quickly granted the waiver.
In June, we asked the city when the council was going to update its accessory dwelling unit ordinance in light of a new state law, House Bill 2720, that gives cities a Jan. 1 deadline to pick ADU restrictions they want — after which all ADUs will be allowed on all parcels zoned residential “without limits.” The city said the ordinance didn’t apply to Sedona or cities under 75,000 residents. But the text of HB2720 is pretty clear [see below], according to the legal experts we’ve asked. Cottonwood [12,029 residents, well under 75,000] updated its ordinance last week. Sedona is going to learn the hard way what the law is.
Last year, the mayor and council tried to ban OHVs on Sedona’s streets, citing tire safety. But such a ban violated state law, as our three state legislators adroitly told council.
Council then scrambled to find other reasons, such as dust outside the city’s jurisdiction, and noise, which city studies said were unsubstantiated. In the end, hours of staff time were wasted, city staffers were paid to conduct pointless work and OHVs still roam our roads unfettered as before, and completely legally, under state law.
This year, council voted to build a homeless car camp at the Sedona Cultural Park. Staff began work before council legally voted to do so. When residents planned a referendum, the city’s housing manager — now no longer employed by the city — used her taxpayer-funded city email to prompt camp supporters and elected officials to prevent the referendum organizers from getting enough signatures to make the ballot, which could be considered election interference via use of city resources — and totally illegal. Council had to be reminded what the law is by the referendum’s supporters, with a possible lawsuit looming.
Now the city is refusing to follow a zoning rule regarding a potential new hotel in Uptown. And yet another lawsuit is on the horizon.
After the Oak Creek Heritage Lodge appeal discussion, Sedona City Attorney Kurt Christianson tried really hard to strongly suggest council go into executive session, likely so he could explain what council should and shouldn’t consider to stay on the right side of the law — but the mayor ignored his lawyer’s advice and moved immediately for council to overturn the recommendation. Now the mayor, his colleagues and we, the taxpayers, are defendants in a lawsuit we all will lose and pay for.
My heart goes out to Christianson — I have three kids under age 6 and they also do dumb things after I say, “No, no, no.” Fortunately, my kids will grow smarter over time. I have no faith this council will.
If council is going to ignore the advice of its legal counsel, then it should abolish the position and just act as its own lawyer.
It already has a fool for a client.
Christopher Fox Graham
Larson Newspapers
House Bill 2720
Introduced by Representatives Carbone, Aguilar, Biasiucci, Cook, Grantham, Hendrix, Hernandez C, Livingston, Marshall, Ortiz, Peña, Quiñonez, Schwiebert, Smith, Willoughby, Wilmeth; & Senators Borrelli, Farnsworth, Fernandez, Gowan, Hernandez, Petersen, Rogers, Shamp
An Act
amending title 9, chapter 4, article 6, Arizona Revised Statutes, by adding section 9-461.18; relating to municipal planning.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 9, chapter 4, article 6, Arizona Revised Statutes, is amended by adding section 9-461.18, to read:
9-461.18. Accessory dwelling units; regulation; definitions
A. A municipality with a population of more than seventy-five thousand persons shall adopt regulations that allow on any lot or parcel where a single-family dwelling is allowed all of the following:
1. At least one attached, detached or internal accessory dwelling unit as a permitted use.
2. A minimum of one additional accessory dwelling unit as a permitted use for each accessory dwelling unit on the lot or parcel that is a restricted-affordable dwelling unit.
3. An accessory dwelling unit that is seventy-five percent of the gross floor area of the single-family dwelling on the same lot or parcel or one thousand square feet, whichever is less.
B. A municipality may not do any of the following:
1. Prohibit the use or advertisement of either the single-family dwelling or any accessory dwelling unit located on the same lot or parcel as separately leased long-term rental housing.
2. Require a familial, marital, employment or other preexisting relationship between the owner or occupant of a single-family dwelling and the occupant of an accessory dwelling unit located on the same lot or parcel.
3. Prohibit or require kitchen facilities in an accessory dwelling unit.
4. Require that a lot or parcel have additional parking to accommodate an accessory dwelling unit or require payment of fees instead of additional parking.
5. Require that an accessory dwelling unit match the exterior design, roof pitch or finishing materials of the single-family dwelling that is located on the same lot as the accessory dwelling unit.
6. Set restrictions for accessory dwelling units that are more restrictive than those for single-family dwellings within the same zoning area with regard to height, setbacks, lot size or coverage or building frontage.
7. Set rear or side setbacks for accessory dwelling units that are more than five feet from the property line.
8. Require improvements to public streets as a condition of allowing an accessory dwelling unit, except as necessary to reconstruct or repair a public street that is disturbed as a result of the construction of the accessory dwelling unit.
9. Require a restrictive covenant concerning an accessory dwelling unit on a lot or parcel zoned for residential use by a single-family dwelling.
C. This section does not prohibit restrictive covenants concerning accessory dwelling units entered into between private parties. The municipality may not condition a permit, license or use of an accessory dwelling unit on adopting or implementing a restrictive covenant between private parties.
D. This section does not supersede applicable building codes, fire codes or public health and safety regulations, except that a municipality may not require an accessory dwelling unit to comply with a commercial building code or contain a fire sprinkler.
E. If a municipality fails to adopt development regulations as required by this section on or before January 1, 2025, accessory dwelling units shall be allowed on all lots or parcels zoned for residential use in the municipality without limits.
F. For the purposes of this section:
1. “Accessory dwelling unit” means a self-contained living unit that is on the same lot or parcel as a single-family dwelling of greater square footage than the accessory dwelling unit, that includes its own sleeping and sanitation facilities and that may include its own kitchen facilities.
2. “Gross floor area” means the interior habitable area of a single-family dwelling or an accessory dwelling unit.
3. “Long-term rental” means rental use in which the tenant holds a lease of ninety days or longer or on a month-by-month basis.
4. “Municipality” means a city or town that exercises zoning powers under this title.
5. “kitchen facilities” means a sink, refrigerator and a significant cooking appliance, including a range, stove, oven or microwave oven.
6. “Permitted use” means the ability for a development to be approved without requiring a public hearing, variance, conditional use permit, special permit or special exception, other than a discretionary zoning action to determination that a site plan conforms with applicable zoning regulations.
7. “Restricted-affordable dwelling unit” means a dwelling unit that, either through a deed restriction or a development agreement with the municipality, shall be rented or sold to households earning up to eighty percent of area median income.
