Originally Published: January 5, 2018 6 a.m.
Typically, when local water advocate Howard Mechanic deals with the City of Prescott, his focus is on conserving the area’s water.
So, he acknowledges that some might see a conflict in his most recent dealings with the city: A lawsuit claiming the right to city water to serve as many as 196 clustered homes to be built just outside city limits in the Government Canyon area.
But, Mechanic says, his goal is to acquire the water to which he claims the land is legally entitled – ultimately to aid his Social Justice Charitable Foundation.
The proceeds from the development would go to charity, Mechanic says, noting that he has been donating more than 50 percent of his income to charity for about 40 years. Among his recent charitable efforts was providing the down payment for the Coalition for Compassion and Justice’s Stagger Straight homeless shelter.
On Dec. 5, Mechanic filed a complaint against the city in Yavapai County Superior Court through his attorneys at Musgrove, Drutz, Kack & Flack.
The complaint claims, among other things, that the city is in breach of contract over water service for a 46-acre parcel of land at 509 Overland Trail.
Mechanic says the lawsuit aims to secure the right to water that stems from a series of 1960s-era agreements between the property’s previous owners and the city.
The complaint states that the city and Riviera Developers entered into a contract in 1963 for the provision of water services to property just south of the subject property.
Then, in 1968, another agreement stated that Riviera Developers and its successors shall “have the right to connect to the water line originally installed by (the developers) for the purpose of providing domestic water service to the land and property of the second parties (predecessors).”
The city has consistently disagreed with Mechanic’s claims, however. In December 2016, Assistant City Attorney Clyde Halstead sent Mechanic a letter stating that, based on the earlier agreements, the city is obligated to provide water to just one home.
“Because none of (the earlier) agreements specify the number of connections that are allowed on your property,” Halstead wrote, the city is bound by city code “as of 2005” to just one connection per parcel of land.
Mechanic said he tried to work with the city on the matter over the past year, but he ended up filing the lawsuit in early December after receiving no further contact from the city.
On Dec. 26, the city filed a response to Mechanic’s complaint, largely denying its claims.
For instance, in response to Mechanic’s claim about the 1963 agreement, the city’s answer states: “The city admits only that the city entered into an agreement in 1963 with certain landowners.” The answer also alleges that Mechanic’s complaint “appears to cite only a portion of a larger, more comprehensive public record.”
Deep Well precedent?
Among the points of Mechanic’s lawsuit is a comparison of his parcel to the Deep Well Ranch property, which earlier received a water allocation based on a 1960s-era agreement.
“The city provided water service to the James Deep Well Ranch Development despite the fact that the agreements between the city and the developers did not contain any express limitation on the number of residential taps,” Mechanic’s lawsuit states.
City officials said at the time of a 2009 settlement with Deep Well that its subsequent water allocations stemmed from a nearly 50-year-old pact through which the Deep Well Ranch had allowed the city to build a pipeline across its ranchland in exchange for city water service.
Although city officials declined to comment specifically on Mechanic’s lawsuit, Water Resource Manager Leslie Graser said the two instances are different. “We have to look at each contract. Each one is treated carefully and reviewed carefully.”
While Mechanic maintains that the city has reserved a pool of alternative water specifically to deal with previous contracts such as the one on his land, Graser says any historic contracts that surface would have to be reviewed and discussed individually.
“If some outlier came up, it would have to go to the City Council to be discussed in executive session,” Graser said, adding that she could not comment on pending litigation.
City Attorney Jon Paladini also declined to comment specifically on Mechanic’s lawsuit, noting that the matter was turned over to the Arizona Municipal Risk Retention Pool, a collective self-insurance pool of cities and towns. The city’s answer was filed by the Sims Murray Ltd. law firm through the pool.
With the city’s response, Paladini said the case now enters the information-gathering (discovery) phase. Ultimately, he said, the case could take months or years to resolve.
Mechanic said he hopes to develop the land using city water as an alternative to drilling a well – a move that he said would be allowed under the land’s status in unincorporated Yavapai County.
He maintains that using city water would be better for the environment, and that he would be willing to pay to connect to the city’s wastewater treatment system.