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.

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. 

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.

April 2014 Pima County Planning and Zoning Boards Update

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. 

March 2014 Pima County Planning and Zoning Boards Update

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. 

Navigating the Bureaucracy: Pima County Zoning and Planning Boards

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:

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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?

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. 

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.