Interesting land dispute restricts access to T100- Mtbr.com
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  1. #1
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    Interesting land dispute restricts access to T100

    For those of you who used to access T100 from the Dreamy Draw Dr entrance (near Aunt Chiladas) and noticed it has been blocked off recently with a fence...here's what's up.

    That little hill (open space) that separates the neighborhood on Dreamy Draw Rd from the 51 is privately owned. I always thought it was a part of the Phx Mtn Preserve, but apparently it isn't. And the tunnel/entryway to T100 (1A actually) that runs along side of that hill (adjacent to the last condo/house) and under the 51 is part of that private land.

    When those houses and condos were built in the early 80's, that hill was deeded over to the homeowner's association. The HOA owned and maintained it and kept it "open space" until 2004. In 2004 they sold it to a local home builder in what many consider to be a shady deal (especially since the HOA wrote into the contract that they would get 10% of the net amount of any profits from development of that land).

    Well, the zoning for that little piece of land (appx 10 acres I think) doesn't permit houses to be built. So the owner went to the local planning commission to see if he could get a variance. He got one that allowed him to build 4 houses. He then asked for 5.

    His plan is to build 5 houses on that land and give the rest to the city to donate to the Mtn Preserve.

    As a ploy to show that he wielded some power, he fenced off that land, including the entrance to T100. It was a smart move on his part, as I'm sure most of the residents who don't live in the immediate area never thought it was private land (like me). Instantly that open space became locked down from public use.

    In a very heated debate last night, the Phx City Council voted 5-4 to ALLOW him to build his 5 houses with the written agreement that about 6 acres of that land, including the trailhead to T100, would be given to the city for inclusion in the Phx Mtn Preserve. Most who voted for it stated they didn't like the idea of building anything on that land, but the fact that the owner has total control over that land and can fence it off indefinitely is what finally swayed their vote. Allowing 5 houses and getting back about 7 acres to keep as open space as PERMANENT Mtn Preserve land is better than building 0 houses and never getting that space for use at all.

    I personally was torn. On one hand the entire way the land was sold over from the HOA appeared borderline illegal (Arizona state govt has since passed legislation outlawing such deals in the future), but what's done is done. Having that trailhead lost indefinitely would really suck, so I was also a little in favor of letting the developer have his 5 houses and still get access to T100. So there were good arguments on both sides.

    Anyway, if you've been wondering why that fence exists and have to ride all the way around to DD to access the T100, you should see that fence come down in the near future. I'm not sure how long this deed process takes to transfer control from the private owner to the city (public land) -- it could take a while. But hopefully now that this dispute is over the fence will come down anyway.

    Getting involved in local politics has opened my eyes to the tenacity that some people have when clinging to a belief, be it "right" or "wrong", "logical" or "illogical". This is starting to scare me a little bit when it comes to rights that us mountain bikers have on public preserve land. I can really see now that pissing off the wrong people will really hurt us, as some people seem to have an infinite amount of time on their hands to devote themselves to a cause (such as restricting access to mountain bikers because we happen to scare them).

    Thx...Doug

  2. #2
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    Wow, never would have guessed that section was private... Haven't ridden through there in a long time so I didn't know about any access issues.
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  3. #3
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    I don't know that specific area, and have never used that access, but that guy has been exposed to some significant liability, hasn't he? If a hiker or mountain biker fell, they could just sue the guy, couldn't they?
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  4. #4
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    Quote Originally Posted by waltaz
    I don't know that specific area, and have never used that access, but that guy has been exposed to some significant liability, hasn't he? If a hiker or mountain biker fell, they could just sue the guy, couldn't they?
    I've done a few night rides from Aunt Chiladas and we always entered 1A from that spot.

    There is definite liability on the owner's behalf with the trailhead there. Both hikers and MTB'ers use that access point pretty frequently and yes, they could certainly sue the owner should they sustain an injury. That's the reason the owner gave in the City Council meeting for recently putting up the fence -- liability. But consider he's owned the land for 3 yrs w/o the fence...and then it gets close to the City Council meeting and the fence goes up. Coincidence? Definitely not...just a smart move on his part to show that he *could* take away that land from public access forever if he didn't get his way.

    The good thing is that a compromise was reached and trail access will be given back to the community. The bad thing is that it should have never gotten this far to begin with (the HOA should have never sold off that land)...but what's done is done and you can't turn back the clock to make it right. Given the circumstances, I don't see how the city could have made a different decision.

    Thx...Doug

  5. #5
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    Doug,
    I was at that hearing last night (OMG that was a long case). My case was the last on the agenda (Central & Mcdowell highrise) so I had to sit through this one. I didn't know much about this case prior to the hearing but after hearing both sides I definitely understood the frustrations on both sides of this case. You've already hit the main points so I won't go into the case itself. I could go on for days about the details but I won't bore everyone with them.

    I will say that Council was in a tough spot. Logic tells you that the property was intended as open space and the *new* land owner was just lucky enough to have been able to acquire this land for next to nothing and crafty enough to forsee how the entitlement process would play out. Legally, you simply have a land owner who holds a property he wishes to develop. "Promises" are made and broken daily in the world of land use and development, if these promises aren't in the form of stipulations or valid deed restrictions they don't for any practical reason exist, especially after any real amount of time.

    Two things caused this mess:
    A. An HOA that made an unethical sale of land.
    B. A developer that although he may be within his legal rights, definitely played the system in a less than respectable way.
    JRA

  6. #6
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    sweet location

    I would probably give away my first born for a house at that location. I don't have kids...btw.

    Personally, I would rather see that section blocked off than have more homes built anywhere near an established trail. When you have an unethical group of people owning land like that and then building on the land then why would anyone believe that they wont try to stop people from parking, hiking, biking, or running in their back yard in the near future. They seem nice now, but the NIMBY attitude is always a few years away.

    "Hikers are too loud. Cyclists are leaving garbage. Too much traffic nearby. We think the city should close trails that lead in our direction." I can see this being the case in the next few years.

    Whatever...money wins every time and everyone takes it in the a$$.

  7. #7
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    So what happened with the Central/McDowell high rise condo case? I assume it passed, given the planning commission's unanomous recommendation (I saw that meeting too)...but you never know what happens w/the city council.

    I was there for the 32st/Cheryl office building height variance request (item #12, just ahead of yours). I spoke in favor of the measure. I was the good looking young guy w/a light brown herringbone jacket and tan pants.

    Regarding the Dreamy Draw hillside case...I didn't know much about it either until I attended the meeting and had to sit through it. There were very good points made on both sides, and I was *very* impressed with the quality of the debate by the city council. I tell you what...the opposition didn't help themselves whatsoever by giving some very harsh speaches! I think one woman called the request an "abortion" and another woman told the council members that they would forever have this legacy on their hands as if they were murderes. I couldn't believe my ears. I was glad that some of the council members fired back at them when they had their own discussion.

    And this is what forced me to think about our position as mountain bikers after the meeting. Think about what could happen if we pissed off one of the ladies who gave the strong speeches who seemed to devote themselves endlessly to a cause they believed in? Or piss off Deb Shriver, who was religiously against the 32St/Cheryl measure? (...that was the haggard looking older woman who was dressed a little on the "butch" side for a public hearing). Deb must have spent hundreds of hours of time getting a coalition of people together to fight a measly 17' added height variance on an office building. Imagine what they could do to us if they decided they wanted to restrict mountain biking in the preserve?? It could be very ugly...

    Thx...Doug

  8. #8
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    Vote Gangi in '08?

  9. #9
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    access rights

    Interesting case. We in Catalina are also expeinceing development access issues, and, its only going to get worse as the remaining open spaces dwindle away.

    Anyway, I have talked to some folks about establishing and maintaining access. My understanding is that there are certain legal actions, some hostile, that trail users can utilize to retain established access to trail systems in the face of development. Just something to think about if your access may be threatened by developers.

  10. #10
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    Quote Originally Posted by bikerideAZ
    I would probably give away my first born for a house at that location. I don't have kids...btw.

    Personally, I would rather see that section blocked off than have more homes built anywhere near an established trail. When you have an unethical group of people owning land like that and then building on the land then why would anyone believe that they wont try to stop people from parking, hiking, biking, or running in their back yard in the near future. They seem nice now, but the NIMBY attitude is always a few years away.

    "Hikers are too loud. Cyclists are leaving garbage. Too much traffic nearby. We think the city should close trails that lead in our direction." I can see this being the case in the next few years.

    Whatever...money wins every time and everyone takes it in the a$$.

    My thougths exactly!!!

    This has great potential to be come another issue for home owners to band us from riding near there house!
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  11. #11
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    Quote Originally Posted by doodooboi
    My thougths exactly!!!

    This has great potential to be come another issue for home owners to band us from riding near there house!
    Hold on now...you're gonna be safe.

    The major stiuplation of the deal is that the City of Phoenix gets the trailhead and surrounding land (about 70% of the acreage) deeded over to them for public use to be included in the Phx Mtn Preserve...meaning that this particular trailhead will forever be protected for you and I to use responsibly.

    As it stands today, nobody can use this trailhead at all...unless you want to risk a citation for trespassing.

    Thx...Doug

  12. #12
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    So..."interesting" as in, "look at this...interesting...growth on my elbow."

    :-/

    p.
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  13. #13
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    Quote Originally Posted by Paul B
    So..."interesting" as in, "look at this...interesting...growth on my elbow."

    :-/

    p.
    No...interesting as in "no clear black-and-white answer to this problem" interesting. Interesting as in "the solution requires give and take on both sides" interesting. Interesting as in "this is something that should be used as en example in a college course in city planning" interesting. That kind of interesting.

    It's easy to blast the developer for being a mean land grubbing jerk...but he bought the land fair and square. The HOA offered it up for sale and he bought it. Like it or not, it's his to do as he pleases in terms of access.

    It's easy to blast the HOA for selling out, but where were the homeowners when this was going on? Apparently they were too disengaged at the time to care. Had they been engaged this would have never happened. Now when their precious piece of land is being taken away from them...all of a sudden they care. Typical American attitude -- too languid to do anything until the crisis hits.

    It's easy to blast the original developer for never putting any of the supposed "promises to keep the land open" in writing. It's even easier to blame them for not simply signing over the land to the city. And it's even more easy to blast the city council from 1983 for not demanding the land be deeded to the city back then as part of the original compromise to allow condos to be built along Dreamy Draw Drive. But that was 1983. What's done is done.

    So now you have a stalemate. Developer owns the land but has no rights to build on it...but he can fence it off and permanently eliminate access. Surrounding neighborhood wants access to the land again but doesn't want houses built on it. Neither can have it all their way.

    Now do you see why this is so interesting (at least from an intellectual standpoint)??

    I hate this entire mess. That little parcel of land is something I really enjoy -- it's both on my jogging route as well as my road ride route (and sometimes my night ride MTB route). Of course I want to keep the land 100% open. So from my vantage point, I'm losing out by the city allowing 5 houses to be built. But that's better than a permanent fence around the entire lot.

    The more I think about it, the better the compromise reached by the City of Phx seems to be.

    I guess this should be a lesson to us all to make sure we stay involved in our communities if we want to keep them protected for future generations.

    Thx...Doug

  14. #14
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    Well, yes, of course! I also hate random skin growths, yet can be intellectually curious as to how it came about.

    I think it's awesome that a forum member was actually present at the hearing! Talk about having a secret weapon in our back pocket. Eabos, take notes. Doug, keep us informed.

    p.
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  15. #15
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    Quote Originally Posted by Paul B
    Well, yes, of course! I also hate random skin growths, yet can be intellectually curious as to how it came about.

    I think it's awesome that a forum member was actually present at the hearing! Talk about having a secret weapon in our back pocket. Eabos, take notes. Doug, keep us informed.

    p.
    This is cool! We have a political presence now.

    Can I be the dirty henchman for the forum? Like if things don't go the way we want them to, call me so I can "take care of things" like the A-team?

    I'm changing my screen name to Hannibal.



    Seriously, I agree with Paul, its great that someone representing the MTB community (or a small part of it) was there and is flowing this info to the rest of us.
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  16. #16
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    Quote Originally Posted by SunDog
    My understanding is that there are certain legal actions, some hostile, that trail users can utilize to retain established access to trail systems in the face of development.
    There are the general concepts of adverse possession and easement by prescription, but I doubt either would be a good case for the City, even if it had standing to assert such claims, which I think it does.

    However, the City could actually condemn ("take") the land, or part of it for an easement, under eminent domain. There has been a recent trend in Arizona in which governments have been condemning properties for private development in the name of public good as a sort of subterfuge. Taking this land would be the opposite and would serve condemnation's true purposes. If the City struck a deal with the owner, it is essentially getting what is should, or even more, for free instead of having to pay something to the owner under eminent domain.
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  17. #17
    caninus xerophilous
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    My comment was something to think about incase an access issue resulting from a developer blocking access to a trail that has been used for sometime. It is not applicable in this case given the resolution.

    A few folks down this way have fought succesfully to retain their time honered access to existing trails when a developer fenced off access and posted No Tresspassing signs. The developer lost in the end and had to retain, against his will, a corridor for trail access across his property. Like I said, just something to think about.

  18. #18
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    inflammatory remarks

    Quote Originally Posted by dgangi
    So what happened with the Central/McDowell high rise condo case? I assume it passed, given the planning commission's unanomous recommendation (I saw that meeting too)...but you never know what happens w/the city council.

    I was there for the 32st/Cheryl office building height variance request (item #12, just ahead of yours). I spoke in favor of the measure. I was the good looking young guy w/a light brown herringbone jacket and tan pants.

    Regarding the Dreamy Draw hillside case...I didn't know much about it either until I attended the meeting and had to sit through it. There were very good points made on both sides, and I was *very* impressed with the quality of the debate by the city council. I tell you what...the opposition didn't help themselves whatsoever by giving some very harsh speaches! I think one woman called the request an "abortion" and another woman told the council members that they would forever have this legacy on their hands as if they were murderes. I couldn't believe my ears. I was glad that some of the council members fired back at them when they had their own discussion.

    And this is what forced me to think about our position as mountain bikers after the meeting. Think about what could happen if we pissed off one of the ladies who gave the strong speeches who seemed to devote themselves endlessly to a cause they believed in? Or piss off Deb Shriver, who was religiously against the 32St/Cheryl measure? (...that was the haggard looking older woman who was dressed a little on the "butch" side for a public hearing). Deb must have spent hundreds of hours of time getting a coalition of people together to fight a measly 17' added height variance on an office building. Imagine what they could do to us if they decided they wanted to restrict mountain biking in the preserve?? It could be very ugly...

    Thx...Doug
    You might consider how you couch your opinions of others in public forums. I think that some people might look at such characterizations as mean spirited and give cause to lump us as a group as haters. I know that certain extreme orginzations such as the Sierra Club peruse MTB sites to see what is going on looking for a fight. I don't know that I am not the kettle calling the pot black, but some of my best friends are g/l and that's okay by me.

    You might take note of sixsixtysix's interaction with some anti-MTB trail sabatouers.

    Not to trash you, as I think all you guys do a great service to the community and are obvious professionals. I was just struck by the rough remark.

  19. #19
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    Quote Originally Posted by mhykhelle
    You might consider how you couch your opinions of others in public forums. I think that some people might look at such characterizations as mean spirited and give cause to lump us as a group as haters. I know that certain extreme orginzations such as the Sierra Club peruse MTB sites to see what is going on looking for a fight. I don't know that I am not the kettle calling the pot black, but some of my best friends are g/l and that's okay by me.

    You might take note of sixsixtysix's interaction with some anti-MTB trail sabatouers.

    Not to trash you, as I think all you guys do a great service to the community and are obvious professionals. I was just struck by the rough remark.
    I didn't mean to come across as critical of anybody in my post...more a report of what I saw in the City Council meeting. Everything I said in my posts is public record. None of my comments regarding who said what was an exaggeration. If you don't trust me, request the records of the meeting on Wed Dec 5 (you won't believe your ears!).

    Of course my report was one-sided in that I didn't mention the positive things that people said about the T100 access issue (and there were some). But my concern was not about these positive people...it was about the militant attitude of the opposition, many of whom could easly organize against us should we get on their bad side.

    I guess I didn't carry my thoughts in my previous post far enough. I ended with the worry about how we could get in trouble by pissing certain people off. The way we as mountain bikers avoid pissing off these people, and anybody else for that matter, is to be courteous, respectful, helpful (by maintaining trails), and cooperative with the governing bodies (city, parks&rec, etc). This is something we ALL need to be keep in mind with every interaction we have with others on the trails and road. All it takes is one bad incident to start the ball rolling...

    Thx...Doug

  20. #20
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    Dirdir I beleive going for an easment or establishing land ownership of that trailhaed by adverse possession or similar would have been a much longer and taxing way than agreeing to the 5 house variance & the deeding of the 6+- acres. This actualy works out best for the city. They keep the trail users happy, get free land, which they could one day sell themselves, get the taxes, kick backs, fees and everything else that makes money with home building.

    As for a time frame for the transfer of land it could be as short as 6 months to 3 years or more. The council & land owner still need to determine exactly where the land lies and wIll it work with the housing plan. Threaten to sue. Drop the lawsuit. Come to an agreement, change their minds, threaten a lawsuit ect ect.
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  21. #21
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    Problem possibly solved...

    The land owner has decided to donate the land to the Preserve!

    We rode by there this past Sunday and the fence was gone. Then I see this today...

    http://www.azcentral.com/community/p...ydraw1219.html

    Mountaintop on Dreamy Draw Drive saved

    Michael Clancy
    The Arizona Republic
    Dec. 18, 2007 02:00 PM

    The mountain on Dreamy Draw Drive has been saved.

    Home developer James Sasser, who had planned to build four homes on the site, will donate the 10-acre parcel to the city of Phoenix, which will incorporate it into its mountain preserve. The agreement was announced at a press conference on Tuesday.

    The land runs north-to-south on the west side of the Piestewa Freeway, south of Northern Avenue. It never has been developed, although a mine shaft on the property is testament to the area's past, when cinnabar mines dotted the area.


    Sasser had purchased the land and reached an agreement with the previous landowner, the homeowners' association of the Pointe Condominiums, to develop the land, and had won approval from the City Council.

    Vice Mayor Dave Siebert and Councilman Claude Mattox, who voted in support of Sasser, contacted the developer afterward.

    Siebert asked Sasser to consider donating the land, and Mattox followed up, pointing out the benefits of a donation to the developer and to the city.

    "It was ultimately his decision," Mattox said. "He has a strong relationship with the city, and his interest is in what is best for the city."

    Sasser received no payment or other consideration for his decision, they said.

    Sasser said he was swayed only by his determination to do the right thing.

    "I am interested in making a profit, but hearing people speak at the council meeting, their passion, it started me thinking," he said. "The councilmen approached me in a positive vein, and that meant everything.

    "The only logical thing to do was to make the donation."

    David Johnson, a leader of the "Save the Mountain Coalition," said the group was "delighted and euphoric" about the news.

    "We put incredible pressure on them," Johnson said. "It's rather incredible. Guess it just shows there is strength in numbers. What we heard from City Hall, they could not believe the uproar. It just shows open space and natural terrain have a deep meaning to people in this community."

    Also speaking were Jeff Fine, who offered to buy the land from Sasser and donate it himself, attorney David Tierney and Alex Tauber, who live in the area.

    Maddox said the council's split vote on the matter prompted his decision to seek a better solution.

    "This is a great Christmas present," he said.

    Johnson said he will feel better when the arrangements are completed.

    "I don't feel like we have won this thing yet, and until it is ratified, that is when I say OK," he said. "But I still want to see the deed signed over to the parks department. That is when I will know it is done."

    Siebert said the City Council will vote on accepting the donation at its meeting today.
    ~~~

  22. #22
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    I am glad this has been resolved and all the land will be donated, assuming it gets finalized.

    However, I do not believe all the "baseball, hot dogs, apple pie and Chevrolet" goody-good-ness. Sasser got nothing for his donation...yeah, right!!

    What about the HOA. Doesn't it have a $ stake in the land? This issue is just going away?
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  23. #23
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    Very curious what sort of back-door deal got worked out. Developers never, ever just "give away" their land.

    I'm betting he got some kind of future consideration for something else already in the works.

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  24. #24
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    Quote Originally Posted by su.ling~
    The land owner has decided to donate the land to the Preserve!

    We rode by there this past Sunday and the fence was gone. Then I see this today...
    Wow - this is a great Christmas present. Thanks for posting this. He had cleared every roadblock to build on that property and this sudden reversal is a huge surprise. Regardless of the developer's motivation for donating the land (he may be angling for a better "deal" with the city elsewhere), people should be sending him Thank You cards.

    Thx...Doug

  25. #25
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    Quote Originally Posted by Paul B
    Very curious what sort of back-door deal got worked out. Developers never, ever just "give away" their land.

    I'm betting he got some kind of future consideration for something else already in the works.

    p.
    Absolutely. That's a given. Developers and lawyers never "do the right thing" -- it goes against every twisted moral fiber in their body.

    But who gives a sh!t?? All that matters is the open space on a hillside is being kept open (unless, of course, he merely traded this hillside for another hillside).

    Thx...Doug

  26. #26
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    With the housing market the way it is and the opposition he got, he might have figured it would be more trouble than it would be worth in profits to try to build there.

  27. #27
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    Quote Originally Posted by dgangi
    ...lawyers never "do the right thing"....But who gives a sh!t??
    The reality is, as a lawyer that sees lawyers everyday, please know that lawyers are more honest than the rest of you. I am not kidding!!!! I can't tell you how many times clients ask me or my colleagues to break the law. We tell them no of course. We do the right thing all the time.

    And, you can't have it both ways. You can't criticize lawyers for not doing the right thing and then celebrate when that results in something to your benefit.

    PS; Go ahead and bash me all you want. But remember, as cyclists we all have been stigmatized by non-cyclists to no end.
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  28. #28
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    you know DirDir, if you also played the card "as a Jewish person, I feel alienated this time of year", you would have the trifecta of marginalization!!

    just teasing of course...but you asked for it
    YES to Scottsdale Prop 420
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  29. #29
    Fragile - must be Italian
    Reputation: dgangi's Avatar
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    Jan 2004
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    Quote Originally Posted by Dirdir
    The reality is, as a lawyer that sees lawyers everyday, please know that lawyers are more honest than the rest of you. I am not kidding!!!! I can't tell you how many times clients ask me or my colleagues to break the law. We tell them no of course. We do the right thing all the time.

    And, you can't have it both ways. You can't criticize lawyers for not doing the right thing and then celebrate when that results in something to your benefit.

    PS; Go ahead and bash me all you want. But remember, as cyclists we all have been stigmatized by non-cyclists to no end.
    Peace, Geoff.

    That last jab about lawyers was intentionally directed at you (in fun) to provoke a reaction...and it worked.

    I honestly don't think lawyers are any better or worse than any of us. Same w/developers. We all like to marginalize them, but truth be told they are humans like the rest of us. They all do good and bad...just like any other profession.

    Remember, we as MTB'ers are frequently marginalized as total a$$hats with no regard for others. I'm sure that is true about a small % of our population, but just like it's not fair to categorize all of us that way, it's not fair for us to categorize all developers et. al. in that light. It's a double-edged sword.

    Now my last comment regarding Mr Sasser and his epiphany to "do the right thing" being BS...that's just my opinion. IMHO no businessman goes through what he did to protect his right to profit from his purchase...and then just give it away. Outwardly it might look like he is doing the right thing, but I can say with a high degree of certainty that he is profiting in the end with a tax write-off, deal with the city, or some other tangible benefit. And that's not to say he's a jerk...just working our capitalist system like any rational human being would (that is if you follow Keynesian economic theory).

    Thx...Doug

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