The South Mountain Freeway will run right up against partof Foothills Reserve

A new court battle has emerged over the South Mountain Freeway that could threaten the state’s plan to complete the $1.7 billion project by late next year.

Foothills Reserve homeowner Dietmar Hanke has asked state Superior Court to allow him to challenge condemnation proceedings for an 11-acre parcel of common grounds owned by his homeowners association.

Hanke filed the request to intervene on Jan. 28 and two days later, the condemnation proceedings involving the 590-home Foothills Reserve HOA and the Arizona Department of Transportation were transferred to the court’s complex litigation division. Both ADOT and the HOA tried to stop that transfer.

And while he notes that both the HOA and ADOT last month told the court that “time is of the essence” to complete condemnation proceedings, Hanke maintains “this urgency is at best premature or nonexistent.”

The state attorney general told the court, “Time is of the essence, as ADOT may be subject to significant delay damages if possession of the property is not obtained immediately.”

Not so fast, says Hanke.

He has charged, among other things, that ADOT cannot even launch eminent domain proceedings because it has not proved the freeway meets a public need – a requirement for the government to take land and compensate the owner for it.

“In spite of ADOT’s repeated statements that the freeway is needed to relieve traffic,” Hanke told the court, “such need has never been empirically derived or demonstrated.

“There is no public need now, nor a public need foreseen, until it is built. ‘Build it and they will come’ seems to be the enabling sentiment,” he added.

Hanke also has asserted that Proposition 207 – approved in 2006 by voters by a nearly 69 percent margin – may prevent ADOT from invoking eminent domain in the first place because it is acting on behalf of a private company, Connect202Partners, which is designing and building the most expensive highway project in Arizona history.

The proposition, also called Private Property Rights Protection Act forbids state and local governments from taking land for private companies. Connect202Partners is a consortium of builders hired by ADOT to design and build the freeway.

Until Hanke had filed his request to intervene, ADOT and the HOA were involved in somewhat typical wrangling over the price of the common property since last July.

ADOT had offered $2 million for the parcel, but the HOA wants more. And it wants the state to compensate homeowners whose houses are nearly a stone’s throw from the freeway, some that will literally face its sound walls.

The parcel is one of seven along the Pecos corridor that ADOT is still trying to acquire to complete that portion of the 22-mile freeway, which connects 59th Avenue in West Phoenix with the Chandler I-10 interchange and would give motorists a detour around the heavily congested interstate along downtown Phoenix.

ADOT spokesman Dustin Krugel declined comment on the Foothills Reserve case or Hanke’s request, stating the agency “is unable to comment on pending litigation.”

Asked why ADOT needed the Foothills Reserve land, he said, “This right-of-way is needed to complete the connection of the 22-mile freeway.”

HOA board President Galen Schliem said “we don’t have a position” on Hanke’s request to intervene.

As for the overall eminent domain proceeding, Schliem explained, “Many residents have always said the land is worth much more than the offer.”

He said money would be used “to bring the community up” through capital investments that are “obligations that go beyond the normal assessments for our members.”

While ADOT has agreed to make some improvements needed in the wake of freeway construction, there are others that the HOA must make to address various issues, including drainage problems created by the freeway, Schliem said.

Stating “it is never really in the best interest of the party being sued to accept an offer,” Schliem indicated that the HOA feels more comfortable having the court decide the worth of the parcel.

By taking the land, ADOT in effect would be severing a U-shaped walking path that many residents use to hike, bike and walk.

“The whole community is based along the walking path,” he said. “Taking the bottom of the ‘U’ would be separating it and damaging our ability to use it.”

Hanke said that even though the HOA depicts its involvement in the condemnation case as a class action, its lawyers have neither informed Foothills Reserve homeowners of the action nor sought a vote on a class-action filing.

Schliem said houses closest to the disputed parcel should be reimbursed for the value their homes will lose as a result of being “severed from their common land,” especially because some were initially targeted by ADOT for acquisition and demolition.

“We have a document dating back to 2000 that shows a cutline going through the community, and they didn’t take all the homes in that cutline,” Schliem said.

Hanke says the HOA should have detailed the impact on those homes in greater detail, complaining it “overlooks and/or grossly simplifies the actual diversity of facts” involving the homeowners affected by ADOT’s action.

For example, he says, it does not indicate which homes were purchased by their owners before ADOT announced in 2005 that it would be going forward with the freeway – a project that had been talked about by highway planners for nearly two decades.

His request for intervention notes that the HOA does not identify which affected homeowners purchased their houses with a builder’s option for a pool, landscaping and other backyard amenities.

Homeowners whose houses were in the original freeway footprint and are now no longer needed have been significantly affected, Hanke contends.

“Those homeowners who bought and took title to their homes prior to any notice by ADOT, whose homes stood in the way of the planned freeway and who had not had the opportunity to build their backyard, were suddenly left waiting for an offer that never came,” Hanke argues.

“As the years crept by, they were stuck financially,” he continues. “They couldn’t sell their house to falling values and they couldn’t invest in a backyard except by compounding an untenable financial risk.

“Those homeowners began to rely more and more on the concrete trails running through the association’s common lands … just to see greenery and plant life.”

ADOT acquired 21 Foothills Reserve houses and tore them down several years ago.

Those that were spared when the freeway path was changed, Schliem said, will instead be stepping out their front doors and seeing a sound wall looming as high as 20 feet.

While Schliem said “people at the south end are going to go through some harsh times” because of dust and noise as the freeway is built near Foothills Reserve, Hanke’s petition suggests there are additional causes for concern.

Contending eminent domain “does violence” to his property rights, he said attorneys for both the HOA and ADOT “are overlooking and sweeping under the carpet the fact that ADOT has unclean hands in its prior dealings with the association.”

“ADOT should not be afforded any accommodation by the court or any defendant,” Hanke states. “ADOT invaded and took possession of the lands of the association more than two years ago.

“Such unauthorized invasion and possession included the destruction of a commonly owned perimeter wall, the destruction and removal of a commonly owned mailbox kiosk, the demolition of 21 association houses and the establishment and operation of a commercial business concern within the association lands,” he continued, calling the actions violations of city zoning laws as well as the HOA’s conditions, covenants and regulations.

“They are clear evidence of ADOT’s arrogance and pattern of conduct that completely disregards private property,” he says.

(5) comments

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