BY LINDA BENTLEY | MAY 11, 2011
Las Ventanas files $10 million Notice of Claim against town
‘[T]he town … hid the true nature … of the WWTP by giving it a
name most would associate with a water amusement park …’
CAVE CREEK – Last week, property owners within the Las Ventanas subdivision, an 80-acre development located at the northeast corner of Carefree Highway and 44th Street, comprised of 23 residential lots plus three separate tracts: A, B and C, filed a Notice of Claim against the town for $10 million, $1 million for each of the 10 lots.The claim alleges the town named the newly completed waste water treatment plant, located on a 76.45-acre site adjacent along the western boundary of Las Ventanas, “Water Ranch” instead of the “more factually accurate ‘wastewater treatment plant, (WWTP)’” and stated it created “confusion among residents and prospective residents in the area and in a very tangible way mislead the public and misdirected public attention away from the true nature of the use of the site and the sewer disposal operations contemplated thereon.”
The Notice of Claim also points out, as a condition for final plat approval, the town required the project’s developer, Ventanas Development Partners, LLC, to include the following language on the recorded final plat:
“The subdivider shall provide the town of Cave Creek free and clear title to the Tract C in consideration of a sum of $46,000. The subdivider shall give public notice to all purchasers that Tract C may serve as a future town wastewater treatment site.”
Tract C is approximately five acres, located at the northwest corner of the subdivision, about which the notice states, “It goes without saying that the size of Tract C pales in comparison to the 76.45-acre WWTP site adjacent to the Las Ventanas subdivision.”
What is curious, however, the owners of the nine homes and one vacant parcel, represented by Alvarez and Gilbert, purchased their properties after the town held public meetings that included discussion of the state land site being considered for a WWTP.
This view of the town’s wastewater treatment plant was taken from Las Ventanas, showing not only the setback from the subdivision but the difference in elevation.Seven of the properties were purchased after construction of the WWTP was well underway, the majority of which were bank-owned, while the vacant lot was purchased by the adjacent homeowners in January 2011, after the WWTP was completed.
The public report for Las Ventanas, which was made available to original buyers in the subdivision but not necessarily provided to subsequent purchasers, stated:
“Purchaser is advised that the subdivder is obligated to transfer Tract C of the subdivision to the town of Cave Creek for the potential expansion of the town’s wastewater treatment facilities. While there are presently no plans to expand such facilities, purchaser is advised that Tract C is not subject to the Covenants, Conditions and Restrictions to be recorded against the subdivision and that Tract C may be utilized for municipal purposes, including but not limited to wastewater treatment facilities.”
The claim goes on to state, “Nowhere in the public report or the final plat approved by the town is any mention or reference to a 76.45-acre wastewater treatment facility to be constructed and operated immediately adjacent to the Las Ventanas subdivision.”
According to the claim, Las Ventanas received final plat approval in September 2004, and began selling lots within the development in March 2005.
It states the town purchased the 76.45-acre WWTP site from the Arizona State Land Department in December 2006.
However, the town made its application to the Arizona State Land Department for the purchase in January 2005, which means the subject would had to have been discussed by council prior to that time.
In fact, the engineering firm CH2M Hill presented the findings of its “Town of Cave Creek Wastewater Treatment Plant Feasibility Study,” dated Oct. 28, 2004, to council on Nov. 15, 2004.
That study included four options for addressing the town’s impending need to increase its wastewater treatment capacity.
One of the options presented was to utilize the 5-acre parcel the town obtained from Ventanas Development Partners, LLC to construct a new plant.
Another option was to acquire the 160-acre parcel immediately west of Las Ventanas from the Arizona State Land Department to accommodate a new WWTP.
So, the possibility of the town constructing a WWTP at its current location was discussed publicly in November 2004.
While the minutes reveal numerous questions from council and the public, no representatives from Ventanas Development Partners, LLC, expressed any objections during that meeting, nor did Ventanas voice any objections from the time the state land parcel was under consideration for the purpose of building a new WWTP through the time the application was made to the state land department in January 2005, the land was purchased in December 2005 or even much later when the design/build contract for the WWTP was approved by council.
The notice claims a prospective buyer of an $800,000 home cancelled the purchase contract when a WWTP operator told the buyer “if he thought the plant smelled bad now (February) he should wait to smell it in the summer, implying the offensive odors coming from the plant would intensify as the days grow warmer.”
Such conversations, which the notice attributes to the WWTP operators, are said to have created “additional anxiety and heightened community fears that further loss of use and greater diminution in property values are likely to occur.”
Attorney Donald Alvarez of Alvarez & Gilbert, PLLC asserts the town has created an “ongoing nuisance by virtue of the operation of the WWTP and the unreasonable interference with the use and enjoyment of property owned by their clients within the subdivision.
Alvarez also claims the town “failed to provide reasonable notice in the area of the WWTP of the proposed construction and operation of a sewer treatment plant designed to treat and dispose of future sewage flows generated within the next 40 years of the town’s development and growth.”
At the Water Ranch’s open house in February, citizens leaned over to see the finished product – treated effluent, which is pumped up to the Rancho Mañana Golf Course. He also alleges the town’s “mischaracterization of the WWTP as a ‘Water Ranch’ lulled residents and prospective property owners into a false impression that something other than a sewer treatment and disposal facility was being proposed at the WWTP site.”
Alvarez goes on to state, “Not only did the town fail to provide notice to the Las Ventanas owners of the change in plans for Tract C, the town undertook a notification campaign that hid the true nature and magnitude of the WWTP by giving it a name most would associate with a water amusement park or municipal swimming pool rather than a massive sewer plant.”
When the town held an open house in February at the Water Ranch, which had been operational since November 2010, not only did the plant not emit any odor, people sat down to a catered barbecue lunch on the grounds.
It would be interesting to learn if any of these same property owners would have purchased their homes if they knew a water amusement park or municipal swimming pool was going in next door instead.
Photos by Linda Bentley
