Alluding to such historic moments as the Norman Conquest and the Magna Carta, an Ahwatukee consultant continues to challenge the Arizona Department of Transportation’s entire procedure for building freeways.
In this case, the South Mountain Freeway would bring an endless flow of traffic right past Dietmar Hanke’s home, disrupting the desert tranquility forever.
Continuing the argument he made in court in March before an unsympathetic Maricopa County Superior Court judge, Hanke filed a blistering 18-page brief requesting that Judge Dawn Bergin order discovery that would force ADOT to turn over documents that might buttress his position.
Meanwhile, ADOT celebrated another landmark as it continued toward a late 2019 opening of the 22-mile, eight lane highway that will connect the W. 59th Avenue and Chandler interchanges of I-10.
It opened the first bridge completed for the highway following a five-month closure of the Elliot Road and 59th Avenue intersection.
The extended closure, which required motorists to detour to Dobbins Road between 59th and 75th avenues, allowed crews to accelerate construction on one of the 13 interchanges for the South Mountain Freeway, ADOT said.
It is also one of 40 bridges planned for the freeway corridor.
Since late October, crews have constructed more than 2,000 feet of roadway improvements, including retention walls, underground utilities and drainage structures, moving more than 300,000 cubic yards of earthwork to create bridge approaches and ramps and building a 272-foot, two-span bridge
Additional work needed to complete the interchange will include paving the ramps and mainline freeway, signage, lighting, final striping, signals and landscaping.
Hanke acknowledged ADOT’s argument that a freeway is inherently a “public use’’ under the law for purposes of condemnation, but he accused ADOT of failing to establish there is a “public need’’ for the South Mountain Freeway.
Hanke’s lawsuit threatens ADOT’s freeway timeline as his new brief called its effort to take 13 acres of the Foothills Reserve HOA’s common grounds though eminent domain “illusory at best, malevolent at worst.’’
“The state claims there is a ‘public use’ for the freeway, he wrote, adding he “claims there is no ‘public need.’ Unless one subscribes to the notion that anything a government agency ‘wants’ is a public need, there is no need here.’’
He wrote that Proposition 207, passed by voters in 2007, “requires the element of an actual public need,’’ rather than merely a government agency’s “belief’’ or “assertion’’ that a need exists.
Proposition 207 required the government to compensate a property owner for any action that would make their property less valuable, such as a “down zoning’’ from commercial to residential. It also allows the state to condemn property for public use.
Hanke’s brief argues ADOT failed to offer any proof of its contention that the freeway is necessary for economic growth in the West Valley, or that it would alleviate heavy traffic on Interstate 10 between Pecos Road and the Broadway Curve, where I-10 intersects with Broadway Road in Tempe.
By extension, the freeway also is expected to divert traffic from the congested underpass through downtown Phoenix, ADOT says.
Hanke was attempting to counter the arguments in court made by Michelle Burton, an attorney representing ADOT. Burton said the primary legal issues are whether the freeway qualifies as a public use and whether it is a necessity.
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.
“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.’’