December 2013 Updates

The stories reported in Southern Arizona Public Works are not static, so updates will be posted monthly to make sure you will find the most accurate and recently available land use, zoning, and planning information for Tucson and southern Arizona.

• First, this website now contains updated and enhanced practice area explanations and illustrations. Check it out here. 
   
• This post reported that California landowners received compensation because the Border Patrol placed underground sensors to monitor border traffic on the landowners' property. A fellow attorney (in the employ of the federal government) correctly observed that the decision to which the blog post linked did not accurately report the final compensation awarded. The landowners ended up receiving damages of $455,520, plus interest, instead of the greater sum of $3,043,051, plus interest.
   
• This post accurately stated that the City of Tucson omitted key information in public documents about a real estate transaction for the Broadway Boulevard widening project. While this remains true, the people of the City of Tucson Real Estate Program should be commended for immediately providing the missing information after a public-records request. 

Does a Commitment to Keep Your Business Open During Construction Change the Amount of Compensation You are Owed for a Temporary Construction Easement?

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Some government agencies will pledge to do whatever it takes to make sure your business stays open while the government is using your property to construct its new public facility, like a road or utility lines. In some instances, the government may go so far as to create an alternate access plan or state in bold on its construction plans, “Access To Remain Open During Construction.”

These assurances do not change the legal rights to use your property that the government takes from you by condemning a temporary construction easement. In condemning an easement over your property, the government takes from you the legal right to use your property in the manner the easement states, and the government cannot lessen the amount of compensation you are owed by promising to use the easement a certain, limited way. In Arizona, this rule is stated in Phoenix Title & Trust Co. v. Arizona Public Serv. Co.:

“When property is acquired by virtue of the power of eminent domain, the compensation of the owner is to be estimated by the actual legal rights acquired by the condemnor and not by the use that he may make of the right.”

— Phoenix Title & Trust Co. v. Arizona Public Serv. Co., 445 P. 2d 169, 8 Ariz. App. 221, 226 (1968).

Property owners should use this to their advantage. The best way to resolve a legal dispute is by agreement, and often times businesses would rather have some say in how the government uses their property than a few more dollars in compensation. Using this principle as leverage could result in an agreement with the city or county to redesign its project and temporary construction easement to lessen the burden on your business.

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Keeping your business open during construction is important, but it should not change the amount you are owed for the taking of a temporary construction easement. 

Tucson City Counsel Keeping Broadway Acquisition Information From Public

There is an update to this post here.

The City of Tucson has already acquired numerous properties for the widening of Broadway Boulevard. In fact, "[t]he City currently owns 25% of the properties along the north side of Broadway." This is good practice; sometimes properties in the path of a road-widening project can be purchased for a fair price before the property is actually necessary for construction. In these advance-acquisition cases, property owners and the government condemnor deal amicably and avoid the conflict litigation offers.

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The City of Tucson owns all of the property along Broadway Boulevard shown here in blue. 

The City will likely acquire even more properties through negotiated purchase before the construction begins on Broadway. However, the City Council has now decided to hide the price the City will pay for these properties. 

The City is exempt from providing the usual public information (called an affidavit of value) all property sales are normally required to include when recorded with the Pima County Recorder.  A.R.S. 11-1134(A)(3). As recently as 2005, however, the Tucson City Council included the purchase price at which the City would acquire Broadway Boulevard property in the resolution authorizing the acquisition. By 2009, the City had decided to obscure its activity in the marketplace by omitting the purchase price of property the City was to acquire at the northeast corner of Campbell and Broadway, instead authorizing the purchase of the property at "the market value of the property."

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Compare the 2009 description (top) of the City's purchase with the 2005 description (bottom)

This is poor practice. First, the City is authorizing purchases of property without explicitly limiting the amount of money the department conducting the transaction may pay. Second, the City opens itself up to criticism by claiming its "policies prevent early acquisitions" or the City "has no money for advance acquisitions" when the City is clearly performing advance acquisitions and cannot even state publicly what it is spending on the advance acquisitions it has authorized. Finally, the other property owners on Broadway Boulevard deserve to know what the City is willing to pay for properties in the path of the project. 

Benson Mobile Home Community Prevails Against the City of Benson in Arizona Supreme Court on Zoning Issue

Good legal disputes are sometimes more entertaining than bad soap operas. Villains and heroes antagonize each other over ages, and, at the end, nobody is really sure what started the dispute in the first place. All involved are left yearning for a portal back to sunnier days when rancor was not so entrenched, so foreordained - but rather peaceably negotiable.

Such is the saga of Stagecoach Trails MHC, L.L.C. v. City of Benson. The Arizona Supreme Court's decision represents the climax of the story. The dispute started as follows.

 Some time prior to 2010, a property owner adjacent to Stagecoach Trails, a 55+ manufactured home community (MHC) in Benson, Arizona, complained about the size of a particular manufactured home (MH) within Stagecoach Trails. The ire of the great beast thus was provoked. When Stagecoach Trails, in 2010, applied for a permit to install a new MH on Lot 27 (not the original lot that prompted the neighbor's complaint), the City denied the permit because the City had decided all new MH installations should conform to the zoning code.

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The Stagecoach Trails Manufactured Home Community in Benson, Arizona. The location of Lot 27, the lot in dispute in the legal battle, is not shown.

The City's interpretation offended the owner of Stagecoach Trails, who claimed the property had been used as a MHC since the 60s. Goodwill, if it ever existed between the City and the owner at all, surely was further strained when the Benson mayor attempted to work things out mano-a-mano only to have that conversation reportedly tape recorded for future use. 

The City thus denied Stagecoach Trails's application for a permit, and Stagecoach Trails brought suit after appealing the permit denial to the City's Board of Adjustment. The critical issue was whether the property as a whole was a nonconforming use immune from the City's application of the zoning code or whether, as the City contended, each MH lot was an individual nonconforming use. If the City's interpretation was correct, each lot would lose its nonconforming status when a manufactured home was removed from a lot. If Stagecoach Trails's interpretation was correct, as long as the entire property remained in use as a MHC, individual MH units could be switched in and out without affecting the nonconforming status of the overall property.

Why was the Arizona Supreme Court needed to weigh in on such a simple issue? It wasn't. By the time the case got to the Supreme Court, the kerfuffle over the nonconforming status of the property was a secondary issue because the Court of Appeals had determined Stagecoach Trails had not made the prerequisite exhaustion of its administrative remedies.

Before a court has jurisdiction over a permit dispute, the permit applicant must "exhaust" his or her "administrative remedies" - in essence, the applicant must follow the appeal process of the body from whom he or she is requesting a permit. The idea is that governing bodies must be allowed the opportunity to correct their mistakes before valuable judicial resources are spent resolving the issue. In practice, these Board of Adjustment appeals are Grand-Guignol masquerades.  

During the time the matter was in Cochise County Superior Court, the City of Benson's zoning administrator had been busy. Once the City learned the superior court judge was not likely to see things the City's way (which, in the mind of the City Attorney, could only be the result of rank bias against the City), the zoning administrator issued multiple follow-up letters to Stagecoach Trails crafting various new reasons why Stagecoach Trails would never, ever receive a zoning permit. See video, at right. 

Stagecoach Trails's lawyers dutifully amended and refiled their court documents in response to each letter, but the Court of Appeals found that the new explanations from the zoning administrator required new appeals to the City of Benson Board of Adjustment in order for Stagecoach Trails to satisfy the "administrative exhaustion" requirement.

Enter the Supreme Court, which astutely holds that a governmental body does not have the power to create a never-ending process of review by continuing to modify its objections to a permit application. This levels the playing field somewhat for property owners because the opinion empowers common sense over bureaucratic nonsense. As long as a property owner makes a valid claim in the first instance that addresses every angle a city or county conjures up or could conjure up to deny a permit, the property owner need not mount futile attempts to reassert his or her claim successively each time the city or county evokes a new barrier.

The denouement is nearly as entertaining. After receiving the case back from the Supreme Court, the Court of Appeals, no doubt feeling upbraided, sent the matter back to the trial court for further findings rather than disposing of the case.

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The City of Benson could possibly appeal again whatever final ruling the trial court makes, but: 1. The trial court already ruled in favor of Stagecoach Trails once, and 2. The city attorney responsible for the City of Benson's legal strategy has been relieved of his post.

Unfortunately for Stagecoach Trails, the Supreme Court agreed with the Court of Appeals that the City of Benson was not required to pay Stagecoach Trails's attorneys' fees, rumored to be close to $300,000. Congratulations to Mr. John Hinderaker, Ms. Kimberly Demarchi, and Mr. Jeffrey Sklar of Lewis and Roca LLP (now Lewis Roca ‎Rothgerber LLP), who represented Stagecoach Trails. Here's hoping you get paid for your good work.

Arizona Clarifies Just Compensation Owed in Eminent Domain When Owner Loses Driveway Access to Public Street

There is an update to this post here. 

In City of Phoenix v. Garretson, the Arizona Court of Appeals has clarified the law regarding the just compensation a condemnor must pay for restricting a property owner's access to an adjoining street as a result of taking a portion of the property through eminent domain.  

The decision discusses the long, tortuous route the Arizona courts have taken to finally arrive at a very simple rule:

“The government may not completely remove or substantially impair a property’s existing access to an abutting roadway without providing just compensation to the owner. ”

— City of Phoenix v. Garretson

The Garretson property is located in downtown Phoenix, and the City of Phoenix took a temporary construction easement along the north boundary of the property to construct the Phoenix METRO light rail. Garretson claimed that he was owed money because, in constructing the light rail, the City blocked Garretson's driveways onto East Jefferson Street. 

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The Garretson property in downtown Phoenix.

The City off Phoenix raised arguments that previous Arizona cases have suggested that a property owner is owed no money for loss of access unless the remaining access is unreasonably circuitous. Arizona has also suggested destroying such access is allowed pursuant to the City's police powers and therefore noncompensable. 

The Court of Appeals dispensed with the City's arguments, which is a victory for private property owners. Now there is no ambiguity in Arizona law regarding the circumstances in which a condemning authority must compensate a property owner for restricting access to a public street. Congratulations to Mr. Dale Zeitlin, of Zeitlin & Zeitlin, P.C., who represented Mr. Garretson. 

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.  

ADOT Generating Arizona-Sonora Border Master Plan

ADOT has been working on a “Arizona-Sonora Border Master Plan” that will impact property owners along the entire Arizona-Mexico Border.

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Border property owners face unique land use challenges. The small amount of private property ownership along the border means that most policies formulated on the state level by the Department of Transportation do not take into account the needs of private landowners. In recent years, the Border Patrol has increasingly viewed all land along the border as public lands subject to constant intrusion if needed to support the Border Patrol’s mission.

ADOT is attempting, admirably, to generate a plan to address cross-border traffic in a systematic way that implements solutions in Arizona that take into account the Mexican government’s plans. This way, ADOT plans to deliver infrastructure that complements the capacity and design of infrastructure south of the border.

Those southern Arizona communities that will be most affected by the new Master Plan will be those that currently have a land port-of-entry, or LPOE. The LPOEs that currently exist in Arizona are in Nogales (two), Douglas, Lukeville, Naco, San Luis (two), and Sasabe. The boldest new improvement proposed in the Master Plan is a new LPOE east of Nogales.

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.