Arizona Daily Star Interviews Carl Sammartino Regarding Eminent Domain Success for Property Owners

The Arizona Daily Star interviewed me recently regarding my successful representation of multiple property owners whose property the City of Tucson condemned using eminent domain for the Downtown Links project:

“‘Whenever there is a large dispute, or a large number of disputes ... it indicates that there was some major disagreement between the government agency and the private property owner regarding the value of the property taken,’ said Carl Sammartino, an attorney who represented several of the affected owners.

Though they were on opposite sides of those disputes, Rossi and Sammartino agreed on the principal cause for the disagreements: The boom in downtown development, which led many owners to believe that their properties were worth more than the city was offering. A quick review of the offer and ultimate settlement figures shows that owners ended up with about 60 percent more than what was originally on the table, according to court documents.”

— Woodhouse, Murphy. (2017, September 18). Road Runner: Decades in the making, downtown bypass in sight. Arizona Daily Star, pp. A2, A5.

Please refer to my page of reviews on AVVO to see how my clients felt about the results I obtained for them as their eminent domain lawyer. You can also find the original Arizona Daily Star article here on the Star's website or permanently cached here. 

RTA Update 2017

In Southern Arizona, The Regional Transportation Authority (RTA) is a major source of condemnation cases - cases in which government entities use the power of eminent domain to take private property needed for public-works projects. The RTA plan is a 20-year plan, approved by voters in 2006, that mandates improvements to many roadways in Tucson. 

The RTA had its 10-year anniversary last year, in 2016, marking the halfway point of the RTA plan. What can citizens expect from the next ten years? This map shows which projects remain to be completed:

As you can see, Broadway Boulevard, Silverbell Road, Valencia Road, 22nd Street, Grant Road, 1st Avenue, and Tangerine Road are still slated for major improvements. 

Many property owners who have asked me to represent them when their property has been taken through eminent domain express surprise at how quickly the process moves once the government decides their property is needed for a project. Property owners along these roadways should be prepared for the major disruption that can occur during an eminent domain taking. Having an experienced eminent domain lawyer can help to answer many of the questions that are sure to arise during the process.

City of Tucson - 43rd Best-Run City in the Nation?

Wallethub has published a study identifying the best-run cities in America, and the City of Tucson ranks 43rd by one of their metrics. That ranking includes a combined measure of "overall city services" and "total budget per capita." Tucson is ranked 99th out of 150 cites in the former and 29th out of 150 cities in the latter, which creates the composite score of 43rd best-run city out of 150 largish cities studied. 

It should be noted, however, that Tucson falls almost into the bottom third (99th our of 150) of ranked cities using Wallethub's detailed breakdown by city, which accounts for financial stability (88th), education (114th), health (82nd), safety (109th), the economy (117th), and infrastructure and pollution (47th).

Looking at Tucson's performance in the subcategories, it seems like this city is doing well at spending a large amount of money per capita, improving infrastructure, and addressing pollution. Tucson is not doing as well at being financially stable, providing health care, safety, and education, or addressing the overall economy. 

This is an interesting study that provides a detailed look at the City of Tucson's overall performance relative to other cities in the United States. It definitely highlights areas the city could improve with more focus and leadership.  

Third-Quarter 2015 Updates: State of the Regional Transportation Authority (RTA)

As many Tucsonans are aware, the Tucson voters passed the $2.1B Regional Transportation Authority (RTA) plan in May of 2006. Since then, the RTA has been working on delivering 35 roadway  corridor projects that impact Tucson and Pima County property owners. Of these 35 projects, most of them require the implementing agency to acquire private property through eminent domain. 

Here is a list of the 35 roadway corridor projects:

Source: Our Mobility, May 2015 http://www.rtamobility.com/documents/OurMobilityMay2015.pdf

No matter how you quantify it, this is a large public works project, or series of projects. The RTA website does not supply easy-to-understand project status information, so I have distilled the information the site does provide to provide the same list of projects along with each project's (somewhat) current status:

The RTA has completed 9 projects, is currently constructing 6, is designing 11, and is waiting to begin 9 future projects. The 20 projects in-design or for the future (and even some of the projects under construction, like Grant Road) will likely require more condemnation of private property, and those property owners may want to consult an eminent domain attorney to advise them of their rights. 

The Loop - Can Pima County Condemn Property to Create an Urban Loop Park?

Pima County has almost completed a multi-use path around the City of Tucson the county calls "The Loop." Designed for pedestrians, bicyclists, and all other manner of non-motorized transport, The Loop will certainly be a fun amenity in Tucson once completed. Can the county use its power of eminent domain to take the remaining properties necessary to complete The Loop?

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The Loop as of 2014. The tan areas show the portions Pima County has not yet constructed.

“The [condemnor] will not be allowed to take the lands of another unless such right comes clearly and unmistakably within the limits of the authority granted. Whatever is not plainly given is to be construed as withheld.”

— Orsett/Columbia LP v. Superior Court, 83 P. 3d 608, 611 (Ariz.App 2004)

Surprisingly, the Arizona Revised Statutes do not explicitly authorize a county to condemn private property for a public park. The county's right to exercise the power of eminent domain is derivative of the state's eminent domain powers, and therefore the state must explicitly authorize the county to condemn property for a specific purpose. The state has explicitly granted the power to condemn for public parks to Arizona cities. The closest the statutes come to granting the same power to counties is contained in a general grant enabling the county to use eminent domain for "grounds for any public use of the state." One has to wonder whether such a general grant of authority would suffice to allow a county to condemn private property for use as a public park.

This ambiguous state of affairs may lead the county to adopt different tactics for acquiring properties necessary to complete The Loop. The most above-board tactic, of course, would be for the county to acquire property through a negotiated purchase. The county may attempt more specious tactics, however, which could include requiring a property owner to dedicate property to The Loop as a condition for developing remaining, adjacent property, or including necessary Loop property within a condemnation for a more-clearly-authorized use, such as a drainage project.

The Loop appears to be a laudable public project for the county to pursue, but property owners should be aware of their rights. The law protects private property owners from being saddled with a burden properly borne by the public. 

The Dream of a Downtown-Tucson-East-West-Urban Freeway

Any Tucson resident (part-time or full-time) of any age can greatly appreciate this excellent photo album from the Arizona Daily Star of downtown Tucson "before redevelopment." These photos from the 1960s and beyond capture the historic beauty of downtown Tucson.

One photograph shows how difficult roadway planning can be. The photograph below shows a 1965 model for urban renewal including a hypothetical east-west urban freeway connecting the east side of downtown directly to the interstate; next to the historic photograph is an aerial photo of the same area in 2013 with the area of the proposed 1965 freeway overlaid with green. 

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1965 Tucson Downtown Urban Renewal Model

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Downtown Tucson Aerial 2013

This urban freeway was obviously never built. The Downtown Links project, linking the Barraza-Aviation Parkway to Interstate 10, is the modern incarnation of this project. Our east-west downtown connector, instead of aligning with Cushing Street, will instead look like this:

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Tucson RTA Downtown Links Corridor Project

Plan Tucson Contains Important Guidelines Impacting Your Property Rights

I have read the entire 246-page general plan the City of Tucson will ask Tucson voters to ratify in November of 2013, called “Plan Tucson” - it is an impressive document. All city staff who had a hand in creating it should be congratulated on a job well done.

Plan Tucson's "Future Growth Scenario Map." Click the image to see a full copy in draft form.

Plan Tucson is a true expression of a general plan for the City of Tucson’s growth in the next ten years, but property owners should note how the new guidelines in the plan will impact their rights.

The document’s rhythm is easy to grasp. The plan begins with a broad explanation of Tucson’s current state of affairs as a city, builds throughout a consistent theme that Tucson has many disparate but effective planning elements needing integration, and proposes in conclusion a new policy-making framework to tie together what the city currently does well with new initiatives in a way that hopefully achieves Plan Tucson’s overarching goal of future smarter and neighborhood-scale growth.

Plan Tucson summarizes its purpose on Page 1.2:

“Plan Tucson is a long-term policy document intended to guide decisions affecting elements that shape the city, such as housing, jobs, land use, transportation, water, and energy resources. [...] Used to best advantage, the Plan provides both a place to start and a place to end for the public, staff, and decision makers involved in developing or approving actions. That is, those proposing actions should do so with the Plan Tucson goals and policies in mind, and those reviewing proposed actions should assess whether the actions do in fact advance the Plan’s goals and policies.”

— Plan Tucson, Page 1.2

The individual sections of Plan Tucson in Chapter 3, “Focus Areas and Policies,” all contain specific goals city planners will use to evaluate future Tucson development. The sections highlight city planning efforts already underway, some of which are described in Plan Tucson as “functional plans.” Functional plans are department-level guides for allocating city resources in developing, for example, public safety. water, and transit facilities or infrastructure. One already-existing functional plan is the “Major Streets and Routes Plan,” which impacts private development when developers are required to connect projects to the public roadways.

An example of a specific plan.

Plan Tucson does not provide planning detail down to the individual parcel level, but it will substantially impact individual property owners. In addition to the functional plans city departments create, Tucson’s 53 “specific plans” dictate development within the geographic areas those specific plans cover. Plan Tucson promotes creation of more and more-integrated specific plans, and those changes must all fit within the framework of Plan Tucson.

One fair criticism of Plan Tucson is it creates an additional level of planning bureaucracy with which developers did not previously have to contend. Buried in the plan (the page containing Exhibit LT-11, page 3.150, is not even included in the index) is Exhibit LT-11, titled “Guidelines for Development Review.” These new Guidelines will govern planning decisions for parcels not already covered by one of the 53 extant specific plans.

The guidelines, unfortunately, are broad enough to allow planners to dictate by whimsy requirements that may significantly impair property values. For example, one guideline states the city should, “[s]upport methods to conserve and enhance habitat when development occurs.” P. 3.151; LT 28.1.17. Plan Tucson includes the following through-the-looking-glass instructions to city staff:

“Terminology and action words used in the Guidelines reflect varying levels of policy commitment, such as very strong (assure, require, preserve, protect, promote); situational and/ or conditional (consider); and basic commitment (encourage, foster). Verbs are intended to convey this varying level of commitment. For example, the word support is generally used in policy statements to designate desired land use applications or actions. The verb consider suggests conditional support, while the verbs encourage or foster describe a recommended action or condition that City staff is not in a position to require. The verb promote is used in a more general way to express a strong City or agency commitment to a proposed concept, program, or activity that may not directly relate to land use and development procedures.”

— Plan Tucson, Page 3.150

Plan Tucson is not all seashells and balloons. It is also rainbows. Plan Tucson, Page 4.3.

If Tucson voters approve Plan Tucson, developers will be faced with the prospect of city planners reviewing projects based on the new Unified Development Code, general Plan Tucson policies, relevant functional plans, the separate City of Tucson Design Guidelines Manual, and either a specific plan or these new, jumbled Guidelines for Development Review. If a city planner tells you to refer to the guidelines, be sure to ask whether he or she is referring to the “Design Guidelines Manual” or the “Guidelines for Development Review.”

I predict these new Guidelines for Development Review will become a significant obstacle to some common-sense developments and will injure some private property owners - whether those owners are developing property for profit or simply for their own enjoyment. Plan Tucson is a tremendous achievement for the city as a whole, but be sure to protect your individual rights from the incursions resulting from these broad, new planning hurdles.

Tucson City Council Refers General Plan for Public's Vote on November 5th, 2013

The Tucson City Council voted on July 9, 2013 to place "Plan Tucson," the new general plan for the city, on the November 5, 2013, ballot for the public's vote.

How will the general plan change Tucson over the next ten or more years?

All cities of a certain population in Arizona must have a general plan to direct elements of their growth and public services. The Arizona statute requiring these general plans, A.R.S. § 9-461.05, was adopted in 1998 as part of a bundle of legislation labelled "Growing Smarter" legislation. A national organization - the American Planning Association - has developed model Growing Smarter legislation for state legislators to use, and Arizona was one of many states that adopted some version of the statutes.

Even though the City of Tucson does not seem to refer to its general plan often, the Arizona statutes require cities to do the following with regards to the general plan:

• The City of Tucson Planning Commission must make recommendations to the city council for ways to put the general plan into effect.
• The planning commission must create an annual report to the city council on the status of the plan  
• The planning commission must "endeavor" to create public interest in the plan (which, incidentally, is why the new general plan is titled, "Plan Tucson," and not either of the previous title options, "Plan-tastic" or "Plan B.") 
• The planning commission must consult and advise multiple stakeholder groups with regards to implementing the plan. 

The voters of the City of Tucson will decide whether Plan Tucson is right for Tucson in November of 2013. Given that the city could be using this document to determine important growth decisions for the next ten years or more, I will be posting in the future a brief synopsis of the 246-page plan in this space. Check back for more information.  

Grant Road Property Residential Property Owners in Tucson Experiencing Effects of Condemnation Blight

I was saddened to read this story about two Grant Road homeowners, Javier and Rebecca Garcia, in the Tucson Weekly. Often, property owners in the path of future public works projects - like the Grant Road widening - experience condemnation blight.

 Will the sale of this property be used as comparable data to derive the fair market value of currently-operating businesses on Grant Road?

Condemnation blight is the  phenomenon of property devaluation that occurs prior to the official taking of property because buyers in the real estate market are unwilling to pay fair market value for properties that will be taken for a public purpose 10 or 15 years in the future. When properties eventually are officially condemned, sometimes government agencies are tempted to use blighted sales - sales of property in the path of the project that are below market value because of the impending project. 

Broadway Boulevard owners can surely relate to the Garcias: the current Broadway Boulevard widening plan has been in place since 1986. One can see the effects of blight on Broadway on the north side of the street between Euclid and Campbell Avenue.

Residential property owners and commercial property owners both face difficult decisions when the greedy appetites of government planners cast a pall on properties far in advance of the actual acquisition date. Acquisition of the Garcia's property is "years in the future," according to the Weekly - maybe not until 2017 or beyond. Hopefully those affected by blight will have an advocate who understands blight and can use the legal tools available to obtain just compensation for Grant Road and Broadway Boulevard properties.