Sammartino Law Group Receives Clients' Choice Award for 2015

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Avvo, an online legal services marketplace, has awarded Sammartino Law Group its 2015 Clients' Choice Award for my 2015 service to Real Estate and Land Use and Zoning clients. 

I am extremely grateful to have been able to meet the real estate legal needs of southern Arizona property owners, primarily through my focus on condemnation and eminent domain law. This year, I have helped clients who have had or will have their private property taken for the Grant Road Improvement Project,  the Downtown Links Project, the Los Reales Buffer Project, the Houghton Road: Broadway Blvd. to 22nd St. Project, and the Tangerine Road Corridor Project. In 2016, I hope to add the Broadway Boulevard Project to that list, among other projects.

It is important to me that this recognition from Avvo comes because of what I have done for my clients. I give thanks to those who hired or considered hiring me to help them, and I wish all past, present, and future clients good luck and good health in the new year. 

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

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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

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:

Status of RTA Projects 2015.png

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. 

 

March-April 2015 Updates - Staying Up to Date as an Eminent Domain Lawyer

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Finding time to accumulate 15 hours of continuing legal education credit is sometimes harder than it sounds. Many CLE courses are two or three hours only or held in inconvenient locations. Add in the basic aridity common to all work-related seminars, and it is no wonder most lawyers are not overenthusiastic regarding this yearly requirement. 

Fortunately, this need not be so for condemnation lawyers. We have been fortunate to have dedicated eminent domain lawyers throughout the state who are willing to put on a six-and-a-half hour conference packed with focused eminent-domain-specific content. This is known as the Condemnation Summit, held twice a year.

I will be attending the Condemnation Summit on May 15th to make sure I stay on top of the developing trends in eminent domain law. Since it is a conference for right-of-way professionals and appraisers as well as attorneys, it is always a great place to gain a perspective on how all aspects of government takings work. 

August 2014 Updates - Implied Easements and Easement Disputes: A Success Story

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In July, I successfully defended two property owners against an interesting claim their neighbor made for an implied easement by way of necessity over their properties.

In Arizona, as in most states, an implied easement arises over the portion of an original parcel that retains access to a public street if the original parcel is split in two and the split results in one parcel losing access to the public road network. The slideshow below demonstrates the concept using three parcels instead of two. Note that these properties are for example only; they are not the properties involved in the litigation:

 
 

In the litigated case, the owner of the landlocked parcel (similar to Parcel B in the above example) claimed an implied easement over properties that had once been held in common ownership (such as Parcels B and C in the example). However, two important subsequent transactions had occurred that made this litigation more interesting than the typical implied easement case. The owner of the landlocked parcel subsequently purchased adjacent property having access to the public road network, but then, for unknown reasons,  sold that adjacent property, leaving the parcel again landlocked. This slideshow illustrates the two further transactions:

 
 

I was successful in arguing on summary judgment the Pima County Superior Court should apply the same logic an appeals court in Florida used in a similar case to hold that an implied easement by way of necessity disappears if the landlocked parcel subsequently gains access to the public road network and again loses it. A landlocked parcel owner should not be able to "reinvigorate" implied easements arising out of necessity if the landlocked parcel owner had previously solved his or her access issue but subsequently recreated the same problem of his or her own free will.

Implied easements present an interesting land use issue that arises more often than one would think. Having an experienced real estate attorney whom you trust can help resolve these disputes favorably before the litigation gets out of control. 

July 2014 Updates

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The Arizona Court of Appeals, Division One, issued two opinions recently regarding land-use issues:

Hopefully you do not own a lot in a subdivision that looks like this.

Mandamus not available to force county to call subdivision improvement construction performance bonds: In Ponderosa, et al. v. Coconino, et al., the court stated that the decision to "call," or enforce, a performance bond ensuring construction of subdivision improvements when a developer defaults on its obligation to construct those improvements is discretionary. An action in mandamus - or, an order from a court ordering an entity to do that which it is required to do - is not available to force a county to call the bond. Where does that leave property owners who purchased lots in a subdivision with the expectation the improvements would be built? The court left open whether a county could be liable in damages for the failure to call the bond. I would suggest exploring breach of fiduciary duty as a viable claim for such damages, especially if the county did call the bond but, for whatever reason, the improvements were still never constructed.

Res Judicata does not bar ADEQ's claim for UST remediation costs and penalties when UST owner misrepresented ownership of UST in previous proceedings: This decision in State v. Arnett is not earth-shattering in its conclusion: during the bankruptcy of an entity the Arizona Department of Environmental Quality (ADEQ) thought owned an underground storage tank (UST), the true owner of the UST, a party to that proceeding, did not disclose his ownership. The bankruptcy proceeding therefore did not bar ADEQ from later pursuing its remedies against the true owner of the UST because the law generally does not allow a person to benefit from his or her own fraud.

 

June 2014 Updates - Why is the City of Tucson Sending Pedestrians to Their Doom? - Part III

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In the first two parts of this series, Southern Arizona Public Works exposed the City of Tucson's casual approach to pedestrian safety by highlighting poor construction and installation of marked-but-unsignalized-pedestrian crosswalks. Unfortunately, even when the City does install signalized-pedestrian crosswalks, it locates them improperly, thereby diluting their benefit to pedestrian safety. 

The best illustration of the City's ineptitude in placing signalized-pedestrian crosswalks comes with a tragic backstory. In 2011, a car struck and killed 13-year-old Nicholas Celaya while the child was crossing East 22nd Street from Reid Park to a McDonald's restaurant on the south side of the street. The death prompted the City to create a new task force to make the streets safer for pedestrians. The City promptly installed a High Intensity Activated Crosswalk (HAWK) at East 22nd Street and South Randolph Parkway placed directly over the previously marked-but-unsignalized-painted crosswalk seen here or below:

The City of Tucson installed a HAWK at this intersection using the previously-marked crosswalk.

Sigh. Even in attempting to correct its mistake, the City of Tucson built the new HAWK in the wrong location, further exposing pedestrians to danger. HAWKs should not be a substitute for street lights, and therefore the City should never place them directly adjacent to an intersection like the one at East 22nd Street and South Randolph Parkway. The Manual on Uniform Traffic Control Devices (MUTCD) makes this clear:

“When an engineering study finds that installation of a pedestrian hybrid beacon is justified, then:

The pedestrian hybrid beacon should be installed at least 100 feet from side streets or driveways that are controlled by STOP or YIELD signs.”
— MUTCD, Section 4F.02(04)

Where should the City have placed the HAWK? Traffic coming north on South Randolph Way has a stop sign at East 22nd Street, therefore the HAWK at the location is placed improperly. This illustration demonstrates:

Proper vs. Improper HAWK placement

The City of Tucson can, and should, do better. The decision to place HAWKs at previously-established-pedestrian crosswalks rather than to install the HAWKs properly under the MUTCD is most likely a financial decision. New crosswalks 100 feet before intersections would be expensive to install. Are the savings worth the safety risk? This is an issue the City always gets wrong. Click through the gallery below for many examples of HAWKs the City of Tucson has improperly placed.

May 2014 Updates

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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

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.

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. 

April 2014 Updates

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Updates of Court of Appeals decisions relevant to land use, zoning, and planning are available via the @sammartinolaw twitter account, which you can also access via the widget on the front page of this site. Follow @sammartinolaw for news about community events and public works equally as gripping as this story. 

Here is a recap:

  • Division One of the Arizona Court of Appeals clarified and moderately extended the circumstances in which a government entity waives its notice-of-claim defense by participating in the litigation of the merits of a claim against it in Ponce v. Parker Fire District. This is important to property owners because litigation against government entities is often necessary to vindicate property rights, and the notice-of-claim statute can be a dangerous sword for the government to defeat solid claims on what amounts to a technicality.
  • Division Two of the Arizona Court of Appeals issued an opinion of great relevance to other professionals intimately entwined with legal-land-use issues: real estate appraisers. In Southwest Non-Profit Housing Corp. v. Nowak, the court held that appraisers owe no duty of care to the seller of property in appraising the property for lending purposes. This, I am sure, is a huge relief to appraisers who are between the Scylla of heavier government regulations and the Charybdis of impatient buyers and sellers.

In legislative news, HB2477 is making its way through the Arizona legislature, which would bring relief to property owners whose HOAs are charging them document fees for transferring their properties into the ownership of corporate entities for tax purposes. That would certainly help this person. Also, a minor amendment contained in HB2091 will slightly strengthen Proposition 207, known as the Private Property Rights Protection Act.

February/March 2014 Updates - Why is the City of Tucson Sending Pedestrians to Their Doom?

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While this blog awaits the decision of the Arizona Supreme Court in City of Phoenix v. Garretson, there seems like no better time to point out a public safety issue with which the City of Tucson sometimes struggles: pedestrian safety.

For instance, this mid-block South Craycroft Road crosswalk, which is just south of the intersection of Craycroft and Broadway, has been installed backwards, which turns pedestrians away from the traffic they should be facing as they cross the street:

Improper sidewalk construction turns pedestrians away from oncoming traffic as they cross

Proper sidewalk construction would turn pedestrians to enable perception of oncoming traffic

The figure on the right comes from a Federal Highway Administration (FHWA) publication; the FHWA publishes the Manual on Uniform Traffic Control Devices, which is the "national standard for all traffic control devices installed on any street." One wonders how many more examples of this improper installation appear in the City of Tucson. 

3,000 vehicles pass through the intersection travelling on Speedway during peak hours - click to enlarge

Speedway Boulevard crosswalk at Beverly Avenue

Another mid-block crosswalk problem occurs when crosswalks are not properly signalized for the existing pedestrian and vehicle traffic. On Speedway Boulevard at Beverly Avenue, a striped and posted crosswalk exists without a signalized, high-intensity activated crosswalk (HAWK), even though the traffic count, pedestrian count, and length of the crosswalk strongly suggest the City should install a HAWK according to the MUTCD.

At both morning and evening peak one-hour periods, the combined Speedway Boulevard traffic in both directions at Beverly Avenue is over 3,000 vehicles; pedestrian numbers are not available but can be assumed to be greater than 20, given that the regional average pedestrian count per crosswalk is 238 pedestrians. The posted speed limit is 35 mph, and the length of the crosswalk is 90 feet across seven lanes of traffic. That puts this intersection off the chart used in the MUTCD for recommending a signalized crosswalk, where values in the green area of the chart recommend a HAWK:

Values located in the green dictate installation of a HAWK or other signalized crosswalk

As shown above, the pedestrian and vehicular traffic on Speedway could be halved and the recommendation to construct greater pedestrian-friendly facilities would still exist for this intersection. 

Tucson is, to a certain extent, to be commended for its efforts to make its streets pedestrian-friendly. Tucson invented the HAWK, which has advanced pedestrian safety in this town and others. Credit for that invention, however, merely gives Tucson recognition for creating a solution to a dangerous problem that should be avoided in the first place with better planning. The problem of large amounts of pedestrians crossing arterial thoroughfares could be avoided altogether by building a better overall City of Tucson transportation system.