Cave Creek approves historic home restoration permit; directs staff clarify deck standards
CAVE CREEK, ARIZONA — October 17, 2023

Cave Creek approves historic home restoration permit; directs staff clarify deck standards

Town council approved a controversial historic property restoration with non-conforming use modification after extensive debate over zoning precedent and environmental impact, along with routine approvals for cybersecurity grant, rodeo lease, and road study funding.

Council Approves Harmony Hollow Historic Home Restoration After Heated Zoning Debate; Directs Code Clarification on Decks

The Town of Cave Creek's council approved a controversial non-conforming use modification for Stephen and Lori Greenberg's restoration of their 1970s home at Harmony Hollow on October 17, 2023, by a 6–0 vote, moving forward a project that has sparked months of dispute over zoning precedent, permeable-deck definitions, and the proper scope of administrative discretion in historic preservation. The approval came after Council Member Thomas McGuire recused himself, citing compromised objectivity, and concluded a nearly two-hour public hearing marked by passionate testimony on both sides—from conservation advocates and neighbors praising the Greenbergs' commitment to preservation, to critics warning that the permeable-deck interpretation could set adverse precedent for future lot-coverage calculations across the Desert Ridges zoning district.

The council's motion carried conditions: staff must return within 90 days with clarified definitions of permeable surfaces and deck regulations, and the council committed to revisiting the native plant protection ordinance—largely unchanged for 30 years—before year-end to discuss potential updates.

Key Speeches

"The planning commission by a vote of 6–0 voted to recommend approval of this application and really what this case boils down to... they've met with staff, discussed with staff the opportunities from everything from tearing it down and rebuilding a new [home] to rehabbing the existing structure... they assumed [a property line fence] back then, it was County free for all, but in addition you had the perennial deck and the awning which went out further. Our plan eliminates most of that and mitigates it in some important ways." — Luke, Development Services Director

"What you are doing is administratively required in your code... You're being asked to make sure that this proposal meets five different criteria. Your development services director has told you that they do. Your Planning Commission has voted unanimously 6–0 that they do, and that is for you to decide tonight." — Phil Sims, Town Attorney

"These are the properties that we own in Cave Creek... Harmony Hollow is there in the kind of Chevron-shaped area bordered by Spur Cross Conservation Area on three sides... We felt like in any economical or logical option would require additional development where we would impact the land further, so we took the inefficient, expensive way of just rebuilding this house in its footprint so we don't expand the footprint onto the rest of the land." — Stephen Greenberg, Applicant

"The greenbergs are selfless people... when we work with the town and the county, Desert Foothills Land Trust, Harmony Hollow was one of our top priorities for conservation... we were so lucky to have someone come along and be a conservation buyer to purchase that property with the sole intent of seeing it forever protected. That is one of the most selfless acts anybody can do as a private land owner." — Vicki Preston, President/CEO, Desert Foothills Land Trust

"The interpretation of the deck not being lot coverage is going to be so detrimental to the remaining residents of the town of Cave Creek because the deck not being considered lot coverage means that the remaining people in DR zoning District can have the same thing. We can start building these decks to basically cover the desert because they're not considered lot coverage." — David Phelps, Opponent

Timeline

Opposition

Number of speakers: Three principal opponents (Jared Stenson, David Phelps, Anna Marcolo), plus written/supplemental concerns from others.

Main concerns:

  1. Permeable-deck precedent: David Phelps provided detailed technical analysis arguing that interpreting permeable decks as not counting toward lot coverage would allow similar structures throughout the town's Desert Ridges zoning, potentially covering native habitat areas without regulatory constraint.

  2. Inconsistent enforcement: Jared Stenson cited prior requests he had made for non-conforming-use relief that were denied, contrasting that with what he saw as preferential treatment given to the Greenbergs because of their "good presentation."

  3. Native habitat corridor encroachment: Phelps argued that stairs shown in the native habitat corridor constitute a "structure" not listed among the ordinance exceptions and should not be permitted without a new use designation.

  4. Lack of height restriction on decks: Phelps flagged the absence of a height limit for decks in the setback area, raising concerns about future uncontrolled expansion.

  5. Commercialization and rezoning risk: Anna Marcolo expressed fear that the project's framing as a "center for art education and desert awareness" masks de facto residential commercialization and represents a step toward rezoning, citing the Holland Center and Sonoran Art League as precedents.

  6. Due-process concerns: Marcolo questioned whether permits were granted before the non-conforming-use modification process was formally completed, and raised allegations that the applicants had engaged in harassment and false defamatory statements.

  7. Zoning-code interpretation as legislative act: Phelps initially argued that council's approval of a new interpretation of "permeable surface" constituted a legislative rather than administrative act requiring full Planning Commission review.

Most compelling arguments:

Phelps's technical presentation on deck definitions and the gap between state standards (Maricopa County: 50%+ coverage = 100% lot coverage) and the town's apparent interpretation gained credibility when Town Attorney Sims acknowledged the need for clarification. The allegation that the project set an adverse precedent resonated sufficiently that Cynthia Driskell committed to staff directives on clarification and code review.

Organized groups:

No formal opposition organizations; opposition came from individual residents and civic participants.

Support

Number of speakers: Ten supporters, including a representative of the Desert Foothills Land Trust and neighbors.

Main themes:

  1. Conservation partnership: Vicki Preston (Desert Foothills Land Trust) emphasized that the Greenbergs' purchase as "conservation buyers" and commitment to conservation easements represented a "selfless act" of private-land stewardship that the nonprofit sector could not otherwise achieve.

  2. Historic preservation: Darlene Southern (Cave Creek Museum volunteer and board member) stressed the property's significance to the town's artistic heritage (the Sonoran Art League's 50-year origin at Harmony Hollow) and argued for case-by-case evaluation of pre-1970s historic properties rather than uniform zoning enforcement.

  3. Community gathering and cultural value: Tamson Wolf (Carefree resident, coordinator of the Spotlight Series) and Julie Racklin (Harmony Hollow's neighbor) described the property as a public touchpoint for stargazing, small gatherings, and community events—a continuation of the property's historical role, not a new commercial venture.

  4. Minimal environmental impact: David Smith (former council member) noted that the setback's primary purposes—wildlife corridor and neighborly separation—were not materially affected, as the Greenbergs owned the adjacent properties on three sides and would be removing the encroachment into Spur Cross.

  5. Net mitigation of existing violations: Multiple speakers emphasized that the project eliminated 350+ square feet of existing encroachments, reducing non-conformity despite the 11-square-foot veranda addition.

  6. Irreplaceable land preservation: Council and speakers stressed that without private-land conservation, Spur Cross could not expand further; the Greenbergs' commitment made additional public acquisitions possible.

  7. Avoiding development risk: Stephen Greenberg presented AI-generated renditions of potential alternative development (6,500–15,000 sq ft luxury homes with gated roads and groundwater extraction), arguing that restoration of the existing structure was the only option that preserved the riparian ecosystem and open space.

Project Details

Vote Breakdown

Outcome & Next Steps

The non-conforming use modification permit NCU-23-01 was approved. The Greenbergs may proceed with their restoration of the home, including the veranda expansion to 75 square feet. The council directed:

  1. Staff to clarify permeable-surface and deck definitions within 90 days and present recommendations to council, addressing David Phelps's concern that the current interpretation lacks objective standards and could enable uncontrolled expansion of decks throughout the town.

  2. Native plant protection ordinance review before year-end — Cynthia Driskell lobbied colleagues to revisit the 30-year-old ordinance governing native habitat corridors, particularly the 12-foot setback and 25% native plant-coverage requirement, to educate the community and explore potential amendments.

  3. Conservation easement commitments: The Greenbergs confirmed verbal agreements with the two adjacent private-property owners to establish perpetual conservation easements protecting the creek and surrounding land.

  4. Indemnification: Town Attorney Sims reported that he had negotiated indemnification language protecting the town from ADOT and MAG negligence in any future infrastructure changes affecting the Greenbergs' property utilities (Southwest Gas line, town water pipeline).

Controversies & Context

Zoning-code interpretation dispute:

David Phelps raised concerns that approving the Greenbergs' permeable deck—not counted as lot coverage—could set adverse precedent. He argued that council was collapsing two separate issues: (1) the administrative decision to approve the non-conforming use modification (which he supported), and (2) a legislative interpretation of "permeable surface" (which he opposed without further code clarification). Town Attorney Sims disagreed strongly, characterizing the council's action as administrative and fact-specific (applying to a mitigated non-conformity), not legislative. However, the council's commitment to staff directives on code clarification within 90 days implicitly validated Phelps's underlying concern.

Allegations of harassment and defamatory statements:

Stephen Greenberg alleged that opponents (particularly David Phelps, Jared Stenson, and Anna Marcolo) had made "verifiably false, defamatory" statements, misrepresented communications via public records requests, and engaged in behavior "amounting to harassment." He argued that opponents had threatened appeals to the Board of Adjustment to delay the project regardless of merit. Phelps and others did not directly respond to these allegations during the hearing, though Phelps emphasized the need for rigorous code review and did not concede the applicants' characterization of his conduct.

Commercialization concerns:

Anna Marcolo and Jared Stenson flagged Greenberg's framing of Harmony Hollow as a "center for art education, desert awareness, and learning"—language that paralleled the Holland Center and Sonoran Art League's mission statements. Marcolo feared this was a step toward rezoning the property for public or semi-public use. Greenberg and supporters (Tamson Wolf, Julie Racklin) countered that the property would remain a private residence with occasional community gatherings, not a venue or institution. Notably, the council imposed no conditions restricting the Greenbergs' ability to hold events, suggesting they accepted the "gathering space" characterization as consistent with residential use.

Recusal by Council Member McGuire:

Council Member Thomas McGuire recused himself, stating: "I have allowed my passion in this matter to take me to a public position that prevents me from making an unbiased vote on this issue." Town Attorney Sims reported that McGuire had made Facebook postings supporting the Greenbergs, which Sims said compromised McGuire's objectivity. McGuire, though entitled to remain in the room, chose to leave entirely—a gesture the attorney characterized as demonstrating the council's commitment to impartial administration of law.

Precedent and uniformity concerns:

Jared Stenson reiterated his personal frustration that he had been denied a non-conforming-use request in the past without explanation, while the Greenbergs (with an articulate presentation and community support) were receiving favorable treatment. This raised implicit concerns about selective enforcement. Council Member Bunch seemed to acknowledge this dynamic, noting that the project's presentation quality and community consensus distinguished it from routine applications, but offering no detailed response to the uniformity concern.

Preemption of the Board of Adjustment:

Stephen Greenberg and Town Attorney Sims both noted that the non-conforming use modification process forestalled an anticipated appeal to the Board of Adjustment, which would have delayed the project and incurred additional legal expense regardless of merit. This framing—that council's approval was necessary to avoid protracted litigation—may have subtly influenced council members toward approval, though none explicitly stated this concern.

Duration

Other Notable Items

Cybersecurity Grant Program (Approved 7–0): The council unanimously approved participation in an Arizona Department of Homeland Security state and local cyber security grant program providing 24/7 managed security operations center monitoring, professional managed services, and cybersecurity training at no cost to the town beyond staff time. County Council members noted the program was essential for protecting the town's newly modernized financial systems and infrastructure.

Cave Creek Rodeo Days Five-Year Lease (Approved 6–0): Council approved a new five-year lease for PRCA-sanctioned rodeo operations on town-owned grounds. The town capped its parade-expense contribution at $10,500 (with the rodeo board responsible for any overages), and the 501(c)(3) rodeo board committed to distributing estimated $70,000–$80,000 annually to scholarships and charitable causes. Public comment by David Phelps requested that grant distributions favor local organizations over Phoenix-area recipients; no conditions addressing this were imposed. The rodeo has invested approximately $180,000 in facility improvements including new restrooms.

Cave Creek Road Widening Study (Approved 7–0): Council approved an intergovernmental agreement transferring a $250,000 legislative appropriation (SB 1722) to the Maricopa Association of Governments for administration of a study to widen Cave Creek Road between Loop 101 and Carefree Highway. The town owns only 0.6 miles of the 9.8-mile corridor. Town Engineer and Attorney Sims negotiated indemnification from ADOT and MAG negligence, and reserved a seat at the planning table to protect town interests (Southwest Gas infrastructure, water pipeline, utility relocation costs). No fiscal impact to the town's budget.