BY LINDA BENTLEY | JULY 9, 2014
Town sues for prescriptive rights to Echo Canyon
If not a home occupation, there appears to be no place for an automotive business to set up shop in Cave Creek
CAVE CREEK – Last Thursday, the town was granted a temporary restraining order against Christian Schulze, Carolyn Brooks Johnstone and the Carolyn Brooks Johnstone Living Trust, the property owner, requiring the gated barriers blocking off access to Echo Canyon Drive be removed.
Over a week ago, Schulze uprooted the street signs for Echo Canyon Drive and Rockaway Hills Road and gated off access to Echo Canyon Drive on both ends where it traverses the property on the corner of Fleming Springs Road, owned by the Carolyn Brooks Johnstone Living Trust.
The closure came after the town revoked Schulze’s home occupation permit to operate an automotive repair business at the property located at 41355 N. Fleming Springs Rd., which came as a result of neighbors’ complaints about Shultze operating his business in violation of the permit’s stated conditions.
On June 30, the town filed a complaint in Maricopa County Superior Court seeking a temporary restraining order claiming prescriptive rights to the use of the road, for which the town provided aerial photos of the property indicating the road has been in use for at least 30 years.
Additionally, the town has been maintaining that stretch of the road for as long as it can remember.
Following the order to show cause hearing on Thursday, July 3, Judge Randall Warner issued a temporary restraining order requiring the barricades be removed and scheduled a preliminary injunction hearing for 10 a.m. on Tuesday, July 15.
However, the town is hoping to come to a resolution with Schulze and Johnstone before that time, so as not to require further court intervention.
As of last Wednesday the metal barricades were down but were replaced with rope and “No Trespassing” signs.
By Thursday night the road had been completely reopened.
It appears the removal of the street sign resulted in a citation issued by Maricopa County Sheriff’s Office for criminal damage, but it wasn’t clear as to whom the citation was issued.
What is most ironic about this entire case is the town’s granting of a home occupation permit to operate an automotive repair business in a residential neighborhood, while Ric Slaughter, a Cave Creek resident, couldn’t obtain a special use permit to operate an auto body shop anywhere in town.
The first time Slaughter’s application was rejected, he proposed building it where Animal Health Services eventually relocated.
The second time around, Slaughter, who operates Ric’s Body Shop in the Scottsdale Airpark, proposed to locate a body shop inside an existing building on Spur Cross Road, directly across the street from Tobias, an automotive repair shop.
That too was rejected by council.
This brings us to the present where council recently voted to allow for the rezoning of land along Carefree Highway from Desert Rural to Commercial Buffer, which, according to Planning Director Ian Cordwell, allows most of the same uses as General Commercial except for automotive-related businesses.
The rezoning, accomplished through the use of a Specific Area Plan (SAP) between the McDonald’s under construction just west of CVS and 48th Street, gives McDonald’s a monopoly on drive-through restaurants, which are prohibited by the SAP, while drive-throughs for banks and other uses are permitted.
So, it seems if a person does want to have a legitimate automotive-related business in town, they would have to be grandfathered in, like Tobias, obtain a home occupation permit that eventually could restrict growth afforded by success, find some other property to try to get rezoned to General Commercial, or set up shop in another municipality.