Third Quarter Pima County Planning and Zoning Boards Update

This is a now-quarterly report of action taken at the meetings of the Pima County Board of Adjustment, Hearing Administrator, Design Review Committee, and Planning and Zoning Commission. This report also includes important Pima County Board of Supervisors actions relating to land use and zoning. This previous post explains the functions of each county board.

• Board of Adjustment
  The District One Board of Adjustment and the District Three Board of Adjustment heard variance requests to allow permanent occupancy in guest houses. The District Four Board of Adjustment heard two cases to reduce the minimum lot size required in the SR zone, which is somewhat unusual.  District Five still has not posted anything online since March. 
• Hearing Administrator
  The Hearing Administrator approved an interesting request for an 18-foot communication tower to relay internet service in a rural area. The Hearing Administrator recommended denial of an application for a Type II conditional use permit for the planned Bike Ranch near Old Spanish Trail and Escalante. 
• Design Review Committee (DRC)
  Nothing of note (at least that has been posted online) has occurred at the DRC.
• Planning and Zoning Commission
  On July 30, 2014, the P&Z Commission voted to recommend an amendment to the Major Streets and Scenic Routes Plan that lays the groundwork for an eventual limited-access highway connecting I-10 and I-19 from E. Old Vail Connection Road to E. Pima Mine Road. The amendment, if the Pima County Board of Supervisors adopts it, could be construed as a regulatory taking because it expands the future right-of-way width from 150 feet to 400 feet in some instances, restricting development options along valuable frontage property. 

The Pima County Board of Supervisors voted on September 16, 2014 to continue until the meeting on October 7, 2014, a vote on the recommended amendment to the Major Streets and Scenic Routes Plan.

May 2014 Updates

The Arizona Supreme Court handed private property owners a victory in City of Phoenix v. Garretson:

“Consistent with our prior cases, we hold that a property owner is entitled to compensation if the government either completely eliminates or substantially impairs the owner’s access to an abutting road and thereby causes the property’s fair market value to decrease. As noted above, however, a landowner who claims or establishes only substantial impairment is not entitled to compensation unless the remaining access is unreasonably circuitous.”

— City of Phoenix v. Garretson, Arizona Supreme Court

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The Arizona Supreme Court

Arizona law is now crystal clear regarding the complete destruction of access. Before Garretson, lawyers for condemnors had argued that complete destruction of one access point was non-compensable if the property retained other, non-circuitous, and reasonable access to the road network. Garretson prevents condemning authorities from eliminating one point of access completely for a property to a certain road without paying for any devaluation that occurs to the property as a result. 

The facts of Garretson were first related in this space here. And, as suggested here, the Supreme Court essentially affirmed the Court of Appeals, albeit while substituting a Supreme Court opinion for the written opinion of the lower court.

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Government lawyers are never nice to anybody.

Attribution: http://xkcd.com/1332/ Under Creative Commons Attribution NonCommercial 2.5 License 

There are three great things about the ruling. First, superior courts, where trial of these cases occurs, now have a clear statement of the law upon which they can base their rulings.

Second, private property owners are entitled to compensation for access restrictions, which most people intuitively perceive as decreasing the value of real estate. (Whether or not this perception is true is sure to be hotly contested.)

Finally, private property owners now are able to bring into being the parade of horribles surely elucidated in the briefs the city and those aligned with the city submitted to the Supreme Court. The fear of the city and those aligned with it, expressed in those briefs, was surely that lawyers defending property owners would push to extend a favorable ruling to try to capture compensation for every destruction of access in a way that would threaten the very existence of a free society as we know it.

This is known as a "slippery slope" argument (see right), and the city and its minions were, to some extent, correct. For instance, I believe this ruling gives rise to a claim for just compensation when temporary complete destruction of access occurs during construction of improvements even if the access will be re-opened once construction is complete. Temporary complete destruction of access occurs frequently. 

Congratulations again to Dale Zeitlin on giving us a great case with which to go forward once more unto the breach. 

January 2014 Updates - Unpacking Arizona Supreme Court Discretionary Review

The Arizona Supreme Court has granted the petition to review the City of Phoenix v. Garretson decision of the Arizona Court of Appeals, Division One. Southern Arizona Public Works discussed the appellate decision here. The supreme court will hear oral argument in the case on January 22, 2014.

What does the supreme court's decision mean? In Arizona, civil litigants generally do not have an absolute right to supreme court review. The Supreme Court of Arizona may exercise its discretion to grant a petition for review, but does so infrequently in civil cases. In the court's 2012 fiscal year (July 1, 2012, through July 1, 2013), it received 313 civil petitions for review and granted only 12 petitions, or 3.8%.

The conclusion most lawyers draw from the discretionary nature of supreme court review and the court's limited exercise of it is the court grants petitions for review primarily when it wishes to correct an error at the appellate level, which would bode unwell for the Garretson decision and those who support the decision's reasoning and outcome. However, most lawyers would admit the supreme court sometimes grants review if it wishes to clarify the law by affirming the reasoning of the appellate court and elevating that reasoning into a supreme court opinion. 

How likely is it that the Arizona Supreme Court granted review in Garretson simply to affirm the court of appeals?

The answer is: unlikely, but more likely than you might think, depending on how you interpret the data. In the last 16 years, the Arizona Supreme Court has granted 247 petitions to review civil cases and has affirmed the appellate court only 36 times, or 14.5% of the time. Here is a breakdown:

Arizona Supreme Court Petition for Review Affirmances 1998-2013

However, during the four full years of Rebecca White Berch's term as Chief Justice, the court affirmed 30-40% of the civil cases the court elected to review. This graph demonstrates the trend:

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Arizona Supreme Court Petition for Review Results 1998-2013

The trend line demonstrates a change in attitude over time from the Zlaket court to the Berch court. The reasons for this trend are best left to (probably pointless -- but amusing) speculation, but there is a clear, data-based suggestion the current court looks more favorably upon elevating appellate decisions to become the law of the land. Further, the chances of affirmance in Garretson may be more likely than this analysis shows because this data does not account for partial affirmances. A case partially vacated with regards to, say an award of attorneys' fees, was not coded as "affirmed," even though the court may have affirmed the salient portion of the appellate court's analysis.

It is correct to say the supreme court's decision to grant the petition for review in Garretson is a victory for the petitioner. It would be incorrect to assume, however, the outcome in the supreme court is assured. Good luck to the lawyers arguing the case on January 22nd - Mr. Ayers for the City of Phoenix and Mr. Zeitlin for Garretson. But a little more luck to Mr. Zeitlin. 

Can You Sue Because a New Road is Too Noisy?

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The current state of construction along West Orange Grove Road.

 Residents adjoining the expansion project along West Orange Grove Road are unhappy with Pima County’s decision not to construct a noise abatement wall between the newly-expanded roadway and their properties. Do they have a remedy at law, or must these owners wait to exact revenge during the next election cycle?

Pima County an almost-absolute right to determine whether it constructs a noise wall along a newly-expanded road. Road projects would never get done if every member of the public had to agree on the manner of construction. Political pressure is the most effective, and often the only possible, lever to force a governing body to modify its construction plans.

Faced with that seemingly harsh reality, property owners must content themselves with receiving monetary compensation for damages suffered from increased roadway noise.. Numerous methods of variable efficacy exist to recover damages from public works projects.

The easiest way to recover damages from a road project is to recover them in an eminent domain (also known as a condemnation) proceeding. Increased noise and a concomitant diminution in property values is usually an issue in direct condemnation cases when the condemning agency takes property to construct a wider road and leaves a property owner with a remainder piece of property. The remainder is closer to a wider, busier road after the taking, and the property owner can make a claim for severance damages, which is the legal term for the damages sustained from the diminution in value that the remainder sustains as a result of the taking. Evidence showing severance damage from increased noise is admissible in Arizona. 

This clear statement of Arizona law is why it is better to have a small portion of your property taken for a public works project happening adjacent to your property than none at all. Direct condemnation proceedings follow very established procedures for guaranteeing just compensation to the property owner. A successful legal course to claim damages arising from a noisy new highway is less easy to chart absent a direct, physical invasion of property.

However, the Arizona Constitution prohibits the government from taking or damaging private property without just compensation. A direct physical invasion is not a prerequisite for recovery in an inverse condemnation case if the property owner can show that the government action substantially interferes with a protected interest in property. The Supreme Courts of Louisiana and Oregon have come close to allowing such damages.

The residents along Orange Grove might have a legal remedy under the Arizona Constitution. Don’t look for a lawyer with a perfect win-loss record to take the case: I once heard a very successful land-use lawyer from Phoenix say, “If you are not losing any cases, you are not taking any difficult ones.” This case would certainly be an uphill battle, but it would be an interesting one to test the boundaries of what “damage” a property owner must suffer from progressive public improvements.

Border Patrol Taking Land Through Eminent Domain for Border Surveillance

This report from KGUN9 On Your Side summarizes what is happening. I have extensive experience opposing the Border Patrol using eminent domain for the border fence and other surveillance activities. The most important issue in these cases is often severance damages, or the loss in value of the property the owner retains after a portion of their property is turned into a security outpost. The property devaluation is similar to that experienced by those who have a prison sited near their property.  

Arizona Daily Star's Road Runner Blog Reminds Citizens to Abide by Notice of Claim Statute

I am a huge fan of the Arizon Daily Star's road construction and project blog, the Road Runner. This edition contains a subtle reminder that injured people who have potential claims against most Arizona government agencies are required to file a notice of claim before bringing a lawsuit. 

In Arizona, an injured claimant must file a notice of claim "within one hundred eighty days after the cause of action accrues." 

180 days does not seem a long time to file a claim. It isn't. I believe the notice of claim statute is too burdensome and should be changed. However, it is (oddly) an improvement: Until 1963, Arizona followed the principal of sovereign immunity, which barred all lawsuits against the state.  

Arizona Government entities, and in particular counties, have learned over time just how powerful the notice of claim statute is. Any claim that is not filed correctly is completely "barred and no action may be maintained thereon."

My experience with the notice of claim statute has been that courts are very divided when applying the law. If you believe you have been injured by a government entity, do not delay in seeking help navigating the complicated notice of claim process.  

Border Property Owners Could Have Valuable Inverse Condemnation Claims Against the Border Patrol

There is an update to this post here. 

The United States Court of Appeals, Federal Circuit, determined in 2012 that the Border Patrol's placement of underground sensors on private San Diego property to track cross-border traffic was a permanent physical taking. This is an example of how property owners can use an inverse condemnation lawsuit to enforce their rights under the Fifth Amendment to the United States Constitution. 

The men and women of the United States Border Patrol have a difficult job to do. However, government agencies are not permitted to perform their jobs in a way that ignores basic civil liberties like the Fifth Amendment protection against taking of property without just compensation. The Court of Appeals determined that the placement of the underground sensors was, indeed, a taking.

It is important to note that, seemingly paradoxically, the Border Patrol wanted the Court to determine the taking was permanent rather than temporary because the amount of damages for which the Border Patrol was liable was less if the taking were permanent. However, the lesson of the Otay Mesa case is that physically invasive Border Patrol activities can constitute a taking for which property owners are owed compensation. If you believe the Border Patrol has physically invaded your property without compensating you, I can help you evaluate your possible claims.