An Ahwatukee Foothills homeowner’s quest to either halt construction of the South Mountain Freeway or change its path met with resistance during a complicated Maricopa County Superior Court hearing.
Foothills Reserve resident Dietmar Hanke’s challenge to the state Department of Transportation’s plans includes an assertion that there is no concrete plan for the freeway’s precise location. He argues that ADOT has failed to justify the need for the freeway and, as a result, has no authority to condemn land to build it.
ADOT is seeking to condemn 13 acres of common ground at the south end of Foothills Reserve, a large subdivision with 590 houses. ADOT wants to pay $2 million for the property, which includes a walking path that represents a pleasant place for residents to take a stroll or walk their dogs. The subdivision’s HOA wants more.
“I don’t think they have done their homework to say, ‘This is the design,’ Hanke told Judge Dawn Bergin. “They should know exactly how much land they need and have a specific design. Until the design is set, all they are doing is guessing.’’
“The state has been back and forth on this over the years,’’ Hanke said, noting that one plan called for building the freeway over his house.
Hanke is challenging the state’s plan to take “immediate possession’’ of the common ground and determine payment later with the Foothills Reserve Homeowners Association. He told Bergin he wants her to order ADOT to turn over previously undisclosed records.
Bergin said she needs to determine how much latitude to give Hanke in seeking the documents. “I am not opening the doors to anything you want,’’ Bergin said.
Bergin challenged Hanke to describe specific evidence that would justify the discovery he is seeking.
“The state has essentially been bullying the community for a long time,’’ Hanke said.
Many of Hanke’s legal arguments stem from Proposition 207, a property rights initiative passed by Arizona voters. The law requires governments to compensate property owners if the value of their property is reduced as the result of a land use decision.
Proposition 207 limits the circumstances under which eminent domain can be used to the state taking property for a public use, according to a state analysis.
Bergin eventually gave Hanke time to submit a brief outlining his arguments after Michelle Burton, an ADOT attorney, attacked his arguments.
Burton said the primary legal requirements revolve around whether the freeway qualifies as a public use and whether it is a necessity. ADOT has been using a “build-design’’ approach to expedite construction.
She said the Arizona Legislature has granted ADOT authority to condemn land for public use. ADOT also was granted authority to determine if the freeway is a necessity.
ADOT repeatedly has argued the freeway, which would cut a 200-foot wide gap through the South Mountain Preserve, provides a necessary bypass for I-10 congestion through Phoenix.
“We have a resolution by the (Arizona) Transportation Board where they have determined this is where the freeway will be built,’’ Burton said. “There is nothing to suggest a decision was made arbitrarily, or capriciously or with malice.’’
Burton said no freeway would ever get built if 100 percent agreement on the location was required.
Hanke’s home is close to the common area that would be condemned, but he told Bergin he probably would opt out of an opportunity to join a class action lawsuit requested by attorney Dale Zeitlin, who represents a group of homeowners whose property borders on the common areas.
Bergin seemed reluctant to allow such a suit to progress at first, saying class action suits are normally handled in federal court rather in Superior Court, but Zeitlin described how homeowners located close to the freeway would suffer similar damages.
“We tried to identify the people who are most proximate,’’ Zeitlin said. “They will be looking at the freeway. It will be right in front of them.’’
The inevitable noise and “aesthetic damage’’ is hard to measure at the moment, he noted, because “the damages haven’t happened yet.’’
Bergin instructed Zeitlin to draft a motion that would argue why he should be appointed “class counsel’’ for the homeowners. He said it is possible that there might be other classes of homeowners affected in some manner at Foothills Reserve.
Bergin cited a variety of legal issues to be resolved, such as determining how homeowners would qualify for different classes and how they would be notified of an opportunity to join in the suit.
No matter what happens, Hanke said, ADOT’s actions already have damaged him and other longtime homeowners, who stayed in their homes rather than selling for a greatly reduced price after ADOT officially served notice of its freeway plans.
“We have had condemnation blight for probably a dozen years,’’ he said, noting there was a significant impact on the quality of life after ADOT previously bought 21 homes that were deemed inside the freeway’s path.
“When those 21 homes were taken, we ended up living in a dust bowl,’’ Hanke said.