In October 2016, Dale Zeitlin tried to a Maricopa County jury the issue of whether the taking of access from a property located in downtown Phoenix damaged the property.

The property was a rectangular shaped property located in downtown Phoenix across from the Phoenix Sun’s arena. The property consisted of about 35,000 square feet.

In 2007, the City of Phoenix constructed the light rail line in front of the Garretson property. The light rail was constructed entirely within the City of Phoenix right of way for Jefferson Street. The construction of the light rail did not take any portion of  Garretson’s property, but had the effect of blocking access to Jefferson Street. Garretson continued to have access along two other roads, First Street and Madison Street.

In 2009, the City of Phoenix filed a motion for summary judgment arguing that because there had been no taking of land and because Garretson’s property continued to have access to other streets, the fact that the light rail blocked Jefferson Street access was not a compensable taking of a property right. The trial court agreed with the City and held that the only property right was one to the street system and not a particular street. Garretson appealed the ruling to the Arizona Court of Appeals, which reversed the trial court’s decision. The Supreme Court of Arizona then accepted a petition for review because the issue of the taking of access was an issue of state wide concern. The State of Arizona Department of Transportation (ADOT) filed a brief that argued Mr. Garretson should not be paid for the elimination of access.

The Supreme Court agreed with Garretson that the elimination of access to Jefferson Street was a taking of a property right and a compensable interest. The Supreme Court remanded the case to the trial court, with instructions that a jury should determine the amount of damages, if any, the property suffered as a result of the loss of Jefferson Street access.

At trial, the City argued that the property did not suffer damages because, according to the City’s experts, the property had the same value with Jefferson Street access as without it. The jury rejected the City’s case, and found that Garretsons’ property had decreased in value in the amount of nearly $3M due solely to the loss of Jefferson Street access. The jury found Garretson’s architectural and appraisal evidence compelling. Under Arizona law, prejudgment interest is tacked on to the judgment, so that Garretson will receive nearly $4M as total just compensation.

The case is important as it requires a government (state, county, municipal) to pay a landowner for the loss of access. This means that in every eminent domain and condemnation case that results in a change of access, a property owner should look at whether the loss of access has reduced the value of his property

See article in the Arizona Republic here.

Supreme Court Opinion

The Supreme Court has agreed to hear a case brought by a Florida landowner who, in exchange for issuance of a dredge and fill permit on land he owned in a habitat protection zone, was required to perform mitigation on government land. The government’s land was miles away from the landowner’s and the mitigation requirement bore no connection to the landowner’s project’s impacts on the habitat protection zone in which landowner’s property was located. The Florida Supreme Court, in reversing the holdings of the lower courts in the inverse condemnation case filed by the landowner, held that the mitigation requirement was not a taking because the U. S. Supreme Court’s holdings in prior cases that addressed eminent domain issues in the context of government exactions, Nollan v. California Coastal Commission and Dolan v. Tigard, apply only to forced dedications by a landowner of property or interests in property, and the cases do not apply where the government denies a permit, but only when a government issues a permit with conditions attached to it.

The Supreme Court’s holding in St. Johns River Water Management District v. Koontz should clarify the extent to which limitations imposed by the Constitution’s taking clause, as set forth in prior Supreme Court cases, apply to landowners upon whom governments are imposing coercive property exactions.

Arizona v. Benross (2010) – a complicated inverse condemnation case, in which ADOT was taking vacant land for the Loop 303 freeway.

Scottsdale v. Toll Brothers (2008) – 384 acres condemned for a preserve; in addition to the jury award, the client received $9,000,000 in statutory interest.

Arizona v. Canyon Oaks (2005) – ADOT case where vacant land was to be taken; settled before trial.

Phoenix v. Merrill (2005) – City appraised leased fee to be taken; settled before trial

Peoria v. Airport/Peoria “36” (2005) – client was also entitled to additional interest for a total recovery of $3,516,000

Arizona v. Gateway (2004) – case settled prior to trial for a little over $13,000,000 plus ADOT agreed to make access improvement

Scottsdale v. Skyridge (2004) – City condemned 40 acres of vacant land; settled prior to trial