Around Thanksgiving, the Arizona Supreme Court agreed to hold argument and consider the appeal of the City of Phoenix (joined by a number of other political subdivisions from around the state) in the matter of City of Phoenix v. Garretson. This case was decided by the Arizona Court of Appeals earlier this year in an opinion that contained some anomalies, from my perspective. In Garretson, the property owner lost its “best” access point as a result of light-rail construction to a downtown arterial, Jefferson Street, cut off from the land by a concrete barrier along the south side of the light rail tracks. By no means, however, was the parcel deprived of all access. Indeed, it appears that the owner’s remaining access to Madison Street is fairly decent.
The city made two arguments the Court of Appeals didn’t buy. First, a valid exercise of city police power (assuring public safety, expressed via putting up the concrete barrier) also “cut off” the owner’s right to compensation. Second, the access to the land was not so substantially impaired as to constitute a total taking (depriving the owner of all productive use of the land) or anything close to it – hence, no constitutional deprivation of a property right demanding “just compensation.” Of course, there was no physical occupancy of the Garretson property by the city, as the barricade is within the city’s right of way. Garretson’s counsel argued to the Court that a decrease in value resulting from the loss of Jefferson Street access raised an issue of fact on the extent of damages, requiring jury consideration and, therefore, eliminating a possible summary judgment for the city.
While the Court of Appeals didn’t rule on the merits of the “taking” argument, it did rule that there was no summary judgment available on these facts. Alas, in making this ruling, the Court did imply that there was a taking in the offing. This seems contrary to authority elsewhere. In states such as California and Texas, the general rule seems to be that a property owner is not constitutionally entitled to “optimal” access, but just reasonable ingress from and egress to, neighboring publicly-dedicated streets. Only when the access becomes a joke to navigate into the site does the deprivation of “better” access rise to the level of a taking. Our court of appeals appeared to be supporting a far more lax standard.
The other anomaly in the Court of Appeals opinion is the statement beginning on the opinion’s 28th page that while “substantial impairment” of access to the owner’s land is usually a question of fact, “a trial judge obviously retains the power to make the determination [of impairment] as a matter of law if a property owner fails to establish a genuine issue of material fact as to whether such impairment has occurred.” Huh? So, if counsel for the owner cannot demonstrate constitutionally sufficient impairment with facts, using maps, expert testimony from traffic engineers, land planners or who/what have you, the judge can intervene to pronounce substantial impairment as a matter of law? It will be interesting to see whether our Supreme Court endorses that observation. The implications of judges having the right as a matter of law to determine substantial impairment of access are doubtlessly frightening to transportation land planners working for all Arizona government agencies.

Oral argument on City of Phoenix v. Garretson will be held at the Appellate Courthouse on Washington Street near the Capitol on January 22, 2014 at 10 a.m.