April 2014 Pima County Planning and Zoning Boards Update

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This is a monthly 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
    On April 15, 2014, the District One Board of Adjustment heard a variance request to allow a permanent occupancy of a guest house. On April 23, 2014, the District Two Board of Adjustment heard an application to reduce the front and rear setbacks for a piece of CI-1 property to effectively zero. This is an interesting staff report regarding a guest house issue the District Four Board of Adjustment heard on April 8, 2014. Districts Three and Five are a bit behind in their internet posting of their actions. Such posting is not required by law, but in this day and age the public [ed: this public] can and should expect a bit more from our public officials.
  • Hearing Administrator
    Nothing new has been posted here.
  • Design Review Committee (DRC)
    On April 17, 2014, the DRC considered two applications related to the sometimes-hotly-contested Hillside Development Zone (HDZ).
  • Planning and Zoning Commission
    Two rezoning cases raised few hackles at the April 30, 2014, meeting. The two staff reports, though, show how conditions on rezoning can sometimes give rise to litigation. The reports contain a total 30 combined conditions for the rezoning of the property, and the Commission's overreach in imposing those conditions give rise to claims of improper zoning exactions.

The Pima County Board of Supervisors on April 1, 2014, sitting as the Pima County Flood Control District Board, considered a motion to approve the Rosemont Copper riparian habitat mitigation plan. On April 8, the Board considered a resolution "seeking full mitigation for damages and costs to Pima County that result from the construction and operation of the West Route Alternative for the Kinder Morgan Sierrita Pipeline." On April 15, the Board considered a resolution to pay a property owner $1,000 for right of way and attendant easements for the Valencia Road improvement project. 

Why is the City of Tucson Sending Pedestrians to Their Doom? - Part II

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In Part One of this series, Southern Arizona Public Works examined a marked-but-unsignalized crosswalk crossing Speedway Boulevard at Beverly Avenue. The speed limit at that location is 35 mph, giving pedestrians a fighting chance of scurrying across all 90 feet of roadway -- seven lanes of traffic -- without disaster. 

Crosswalk to Golf N' Stuff on East Tanque Verde Road

PAG Traffic Counts for East Tanque Verde Road - Click to Enlarge

This Golf n' Stuff crosswalk (at right) is not so forgiving. Like the Speedway crosswalk, this crossing of East Tanque Verde Road is marked, but unsignalized. Traffic averages about 3,000 vehicles at peak hours (see chart at left.) Unlike the Speedway crosswalk, this hazard crosses a roadway where the posted speed limit is 40 mph. It is below a sloped, curving hill that inhibits lines-of-sight. East Tanque Verde Road is a nine-lane, 115-foot thoroughfare in this location. Most egregiously, this crosswalk is a conduit to a children's attraction.

In Part One of this series, I examined the Manual on Uniform Traffic Control Devices to see what that text said about Tucson's choice to leave the Speedway and Beverly crosswalk unsignalized, using some assumptions about daily pedestrian traffic from local studies.* How does the MUTCD feel about the Tanque Verde Road crosswalk?

VALUES LOCATED IN THE GREEN DICTATE INSTALLATION OF A HAWK OR OTHER SIGNALIZED CROSSWALK

Not good. Note that the results for this crosswalk are again off the chart. The chart does not even have a line indicating the decision point for a 115-foot road. The folks writing the MUTCD perhaps did not contemplate planners who would be so reckless as to slap down a striped crosswalk across such an expanse. There is some evidence to suggest that unsignalized-mid-block crosswalks like these actually are more dangerous than no marked crossing at all because such markings provide an illusion of safety.

Crosswalks like these raise safety concerns that aren't obvious at first blush. Looking even deeper at the local transportation context, one can see the social justice issue: crosswalks cater to the non-driving public, which in most cases is synonymous with the lower-income public. At whose expense is Tucson ignoring the need to take crosstown traffic off surface streets and put it onto a workable system of controlled-access expressways? And who is benefitting from the decision to ignore a solution that would involve creating such a roadway system across the northern and eastern boundaries of the city?

This is an example of the tyranny of small decisions. Each road widening makes it a bit easier to postpone the day when Tucson will have to reckon with its lack of crosstown mobility. In the meantime, crosswalks like this one are increasingly dangerous to the many people who must cross our substitute superhighways through the middle of town.

*Note that my prior discussion about pedestrian counts was not very detailed. The pedestrian counts in the study are the four-hour totals observed during morning and afternoon peak traffic periods. The MUTCD chart is expressed in pedestrians per hour (pph.) Therefore, one would need to divide the average pedestrian volume (238) by four (= about 60) to get the best estimate possible of pph at East Tanque Verde Road. I wish more detailed information were available, but the Pima Association of Governments (PAG) has not devoted the necessary resources to create such data.

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.

March 2014 Pima County Planning and Zoning Boards Update

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This is a monthly 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
    On March 11, 2014, the District Four Board of Adjustment considered a sizable variance request to increase the allowed area for an accessory structure from 1,500 to 4,031 square feet at 1450 North Freeman Road.
  • Hearing Administrator
    On March 17, 2014, the Hearing Administrator approved a Verizon Wireless request to place a 34-foot monopole communications tower on property located at 19461 South Sonoita Highway. No protests appear to have occurred at the hearing.
  • Design Review Committee (DRC)
    On February 27, 2014, the DRC reviewed site planning related to property at the southeast corner of West Ajo Highway and South Kinney Road for compliance with the Gateway Overlay Zone.
  • Planning and Zoning Commission
    On February 26, 2014, the Planning and Zoning Commission approved a rezoning of property at 11050 East Tanque Verde Road for Tanque Verde Hay and Feed Supply. The rezoning was from RVC (Rural Village Center) and CB-1 (Local Business) to CB-2 (General Business.)

On March 18, 2014, the Board of Supervisors, in executive session, considered a Tucson Electric Power request for utility relocation reimbursement due to the Magee Road Improvement Project. Also in executive session, the board considered legal advice regarding the Dos Picos inverse condemnation case. 

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.

Navigating the Bureaucracy: Pima County Zoning and Planning Boards

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Bureaucracy is a fact of life when dealing with land use, zoning, and planning issues. Whether you would like to modify your family residence or plan a large subdivision, governmental entities will want to have input into that process. Most of the time, development and construction projects are permitted at the department level, through Pima County Development Services, without the need for public hearings. When public hearings are required, your project might appear in front of one of these boards:

Pima County Board of Supervisors Districts

  • Board of Adjustment: The Board of Adjustment hears requests for variances, which are requests for permission to not conform with the zoning code in some way, i.e., if a property owner wished to create an addition to her house that would not be possible without encroaching into the mandated setback. The Board of Adjustment also hears requests for interpretations of the zoning code or appeals from a determination by the Zoning Inspector. Finally, this board has the power to grant temporary use permits, allowing the use of property beyond its permitted use under the zoning code for a limited time. The Pima County Board of Adjustment has five districts, each corresponding to the district of a Pima County Supervisor. 

  • Hearing Administrator: The Hearing Administrator conducts public hearings on applications for conditional use permits. Conditional use permits (or CUPs) allow uses of property that are typically harmonious with the surrounding development but require closer examination before the use is permitted.
  • Design Review Committee: The Design Review Committee (DRC) reviews proposed developments to ensure they meet the design standards for particular zones, such as an overlay zone or a historic district. The DRC can grant exceptions in addition to its compliance review duties.
  • Planning and Zoning Commission: The Planning and Zoning Commission directly advises the Pima County Board of Supervisors. Rezoning requests are heard before this commission prior to a vote by the full Board of Supervisors. 

 

These four public bodies wield tremendous power and influence, and their approval or disapproval can make or break a project. The decisions of these boards have also a big impact on the larger community, so I will begin to compile a "Monthly Pima County Planning and Zoning Boards Update." Check back in this space for details of interesting projects and proposals affecting real estate in Pima County.

 

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

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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?

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. 

Grant Road Widening Construction Sequence and Project Segments Map

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The Regional Transportation Authority's website for the Grant Road Improvement Plan - www.grantroad.info - contains a wealth of information on the project but is not well organized. It is difficult to find the official map of the construction sequencing, so I have reproduced it here:

Grant Road Improvement Project Construction Sequence - The project is currently in Segment Two

The City is moving into Project Segment Two, which runs from North Castro Avenue to North Fremont Avenue. Acquisitions will begin soon, and the RTA will likely provide property owners with offers to sell properties along the project for less than their true market value. An experienced eminent domain lawyer can help property owners get the proper value for their condemned property along Grant Road. 

January 2014 Updates - Unpacking Arizona Supreme Court Discretionary Review

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Arizona Supreme Court Seal.jpg

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

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:

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. 

 

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

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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. 

1965 Tucson Downtown Urban Renewal Model

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:

Tucson RTA Downtown Links Corridor Project