Pima County faces a potential lawsuit after denying a permit to build a home on a protected ridge last November. The decision came roughly a month before the supervisors OKโd a comparable request in another protected area.
Dr. Sam Moussa thought he had found the perfect incentive to bring his three daughters closer to him when he purchased a package of three lots in the Tucson Mountains in 2009. The plan was to give each daughter a piece of land for a home.
โI could never imagine that you could buy a piece of land you couldnโt build on and that you can be restrained in what you do with it,โ Moussa said.
In protected peaks and ridges areas, development can proceed only with a special-use permit approved by the supervisors.
While Chris Poirier, development services planning director, said the information about the restrictions was available all along in the plat of the property, Moussa said they didnโt find out about them until about three or four years ago from an architect.
Though two of the lots were fine, daughter Renee Moussaโs needed the supervisorsโ consent. The property is north of West Speedway and east of North Camino de Oeste.
On Nov. 22, the Board of Supervisors went against the recommendation of the development services staff and voted 3-2 to deny the permit. Supervisor Richard Elรญas moved to deny it with little discussion; Supervisors Ally Miller and Ray Carroll were the no votes.
โMy architect worked with Pima County staff and whatever they told him to do he did,โ Moussa said. โItโs purely political because they know there is no way they can prevent an owner in the free world who has ... land and pays property taxes from using it.โ
Architect Richard Burton worked with the Moussas and Pima County to create a design intended to minimize impacts to the protected ridge, and also presented it to the supervisors and would-be neighbors, who were largely opposed.
Peter Chesson, president of the Tucson Mountain Association, said that while his group is not entirely opposed to development, the ordinances must be followed. Along with a number of nearby residents, the association sent a letter to the supervisors formally objecting to the permit.
โThe residents in the local region, and letโs face it, people outside the region, donโt want to see houses all over the hill,โ Chesson said.
According to Chesson, the main concerns with Moussaโs proposed development are potential aesthetic impacts for residents and tourists, as well as threats to biological diversity of the area. Building on ridges can degrade important habitat.
If the supervisors had approved the request, โthen every person can say, โOh, Iโm going to buy this piece of land because I know the county doesnโt really mean its regulations,โ he said.
But denying the permit was also not without consequences. In May, the Moussas filed a notice of claim with the county โ a precursor to a lawsuit โ requesting at least $300,000 to compensate for county actions that โpreclude any reasonable or economically viable useโ of the property.
Though the Moussas cannot build on the property, its assessed full cash value in 2017 is $38,700, spelling sizable annual property tax bills for the family. To lower the taxes, the Moussas requested a re-evaluation with the Pima County Assessor for the 2016 tax year to reduce the propertyโs value from $45,000 to $500, which was unsuccessful.
County Assessor Bill Staples said the current full cash value was a reduction from the previous figure of $45,000, which it will likely return to next year.
The lot has a unique history. In 2002, development rights were granted for Lot 9, along with three others, while the area was being considered for protected peaks and ridges designation. Those rights were relinquished, however, after no development occurred within the established time frame.
In the case of Ely Badilla, who received a special-use permit to build on his lot on Dec. 13, 2016, information on the restrictions was not available in the propertyโs plat, but was available elsewhere. He previously told the Star that he wouldnโt have bought the land had he known about the ordinance.
While Moussa conceded that more due diligence was probably needed, he assumed all three properties were developable because two proceeded without issue.
In both cases, information about peaks and ridges restriction boundaries was publicly available through online county maps. Nevertheless, Elรญas said more could be done to make would-be property buyers aware of potential development restrictions.
โWe need to make sure thatโs on the record so that these title companies pick that up, because thatโs where most people look for reliable information on a property that they purchase,โ he said. โSomehow that fell through the cracks a couple times and thatโs not been good.โ
County Administrator Chuck Huckelberry said the Moussasโ claim will most likely expire, and then they can file a lawsuit in Superior Court. The 60 days required by state statute for a notice of claim to be deemed denied recently lapsed.
The Moussasโ attorney Lawrence Schubart, who told the Star on Wednesday that his client would be filing their lawsuit โin the near future,โ is hoping for an amicable resolution.
โThey have exhausted all avenues to make a viable property and if itโs not resolved they have no other options but to get the value of the parcel,โ he said.
For Sam Moussa, the best outcome would be to get permission to build the home that development services approved.
โRenee is definitely coming back and she wants to live on that lot,โ he said. โIf it goes to court, no doubt in my mind we will prevail. How can you own a land, pay tax on it the rest of your life and you canโt use it?โ
