Construction of the South Mountain Freeway may finally end Friday, but an Ahwatukee man’s fight with the agency that built it shows no end in sight.
The Arizona Department of Transportation on Monday said it still hopes to open on Friday, Oct. 30, the 32nd Street interchange and the multiuse path – the final two pieces that have remained under construction since the 22-mile freeway was opened in December.
But whether the interchange and multiuse path are opened after two postponements in the last two months won’t stop Foothills Reserve homeowner Dietmar Hanke from waging the last legal challenge in connection with the freeway.
Hanke last week fired his latest salvo in his long-running Superior Court suit over ADOT’s acquisition of some public areas in the Foothills Reserve HOA for the freeway right-of-way – an action he contends violates the 2006 voter-approved Prop 207, which forbids governmental entities from seizing public property for economic development.
He asked Superior Court Judge Timothy Thompson to take back an order that Hanke and ADOT go into mediation – which could involve secret proceedings and a secret conclusion to the lawsuit.
Hanke’s suit already derailed the Foothills Reserve HOA and ADOT from finalizing a $6.5 million settlement over the agency’s acquisition of 13 acres of common lands for the freeway right-of-way. That amount was triple the offer the HOA and ADOT had agreed on before Hanke intervened.
Hanke wants a jury to decide what those grounds are worth – a figure he puts at millions more – and in effect decide whether ADOT ever had legal standing to take any private land for a freeway under the claim that the freeway served a “public need.”
“Here, we have ADOT taking land through eminent domain to accommodate people who aren’t even here yet,” he wrote, noting South Phoenix City Councilman Michael Nowakowski frequently has said the freeway was necessary to develop areas like Laveen.
“ADOT can build a roadway or a freeway anywhere it wants for any reason or no reason. It can buy any private property to do such as well. It just can’t take private land without public need,” he said in last week’s filing.
Hanke, who is not a lawyer but has been fighting in court since 2017, last week told Thompson his mediation order is “inappropriate.”
“Requiring mediation that requires the defendant to muster more funding for legal expenses and sacrifice greater amounts of time, all of which may be for naught and all of it conducted in secret, is patently unfair,” Hanke wrote.
“This court should let the disinfecting light of the sun shine on the dealings, arguments, and nonsense the state may propound. This court should embrace transparency, not eschew it.”
He said the judge’s order “would drag the lid over this project’s sarcophagus.”
In mediation, Hanke alleges, “elected and appointed state and local government officials could never be held accountable for their underhanded and self-serving actions.
“Everyone could just move on,” his motion continues. “Except for those whose community/reserve has been destroyed and home values and quality of life have suffered. The confidential aspect of mediation would not expose incompetence, empire building, underhandedness, lack of professionalism, favor brokering, cronyism, corruption, tacit conspiracies, co-dependencies, disinformation propaganda, undue influence, retaliation and illegal acts and tacit privatization of our government agencies and offices.
“No one could be held accountable at the polls or in court.”
Hanke contends that ADOT has not dealt fairly – or even legally – with him and other Foothills Reserve neighbors.
In 2005, his lawsuit claims, the agency had identified his and some neighbors’ homes as being in the path of the freeway and that it might take them and compensate them for their loss.
But years of uncertainty passed before ADOT shifted the freeway path.
During that time, he said, he “was not able to rationalize the completion of his home (i.e. pool, spa, back yard, office build-out, etc.) or selling at a loss.
“When would the taking occur? Would there be any recovery of the costs of improvements? Would one be able to sell one’s house and break even, or anywhere close to such? These are troublesome questions to a homeowner. They keep one up at night,” his motion states.
Hanke also alleges the neighborhood itself changed over those years – and even since the freeway opened.
“Wholesale home abandonment occurred, short-term renters outnumbered owner-occupiers, moving vans, boats, motor homes, travel trailers, service vehicles, and partiers clogged the streets; landscaping was greatly simplified; some houses fell into disrepair, others were occupied by adults; fire alarms blared for days and nights in vacant homes; some homes were used as drop houses, some as party houses,” his motion states.
Now, he said, the homeowners’ association “is no longer a ‘reserve’ and its common lands are open to the public while their maintenance, insurance, etc. costs are borne by the homeowners.
“Meanwhile life goes on, people get older, people die. And yet, here we are 15 years after ADOT’s show and tell at the Grace Inn that indicated (Hanke’s) house was in the right-of-way.”
The Grace Inn, which was replaced more than 10 years ago by Four Points by Sheraton Phoenix South Mountain, hosted one of ADOT’s many community meetings briefing residents about freeway plans.
Hanke assailed the judge’s mediation order, calling it “a sudden rush to mediate and get this long-term injustice off the table and behind all of the layers government involved and individuals implicated, lest someone be held accountable for numerous transgressions of the law.”
Neither ADOT nor Foothills Reserve has yet filed a reply to Hanke’s motion.