Page 22 April 2013 Strategies exist for help in condemnation procedure Jennifer Cranston By Jennifer A. Cranston In a prior column, I described the basic principles of condemnation, also known as “eminent domain.” Here’s a quick refresher: Under the laws of eminent domain, the government has the power to take (condemn) private property for public purposes. When it exercises its condemnation authority, the government must pay the landowner “just compensation,” which is typically measured by the fair market value of the property taken. As previously explained, attempts to avoid condemnation by challenging the government’s right to take the property are often unsuccessful. However, landowners may be able to avoid or at least minimize condemnation disputes based on the following strategies. Project planning Most government entities start planning their projects signi fi cantly in advance of fi ling a lawsuit. During the planning process, of fi cials often seek input from property owners in the area. So, one way to potentially avoid condemnation litigation is to get involved in the planning process early. Being proactive and voicing your concerns before the fi nal location of the project is selected can save in the long run. Statutory defenses Depending on the circumstances, a property owner may be able to rely on a relevant state statute to avoid condemnation. First, some entities are granted the right to condemn only for certain purposes. Continued on page 23 480-941-8954 9:30 – 5:30 Monday – Friday • 9:30 – 5:00 Saturday • 5625 East Indian School Road, Phoenix www.oneposhplace.com Visit our Retail Showroom Also offering Award Winning Interior Design by Paige Bailey & Associates, Inc. M M arshall and S S usan C C hristy 480.998.0676 MandSChristy@cox.net www.ChristyRealty.com Experience. Service. Results. Personalized Service Expert Representation Aggressive Marketing Upgraded Online Exposure Staging Short Sale Processing Leasing Z Z Z Z Lisa Capes Sr. Account Manager / Sales & Marketing 6710 N. Scottsdale Rd. Ste. 100 Scottsdale, AZ 85253 Phone: 480-695-3136 CapesL@ctt.com www.chicagotitlearizona.com/capes ...where Experience equals Excellence NESTLED ON A .29-ACRE CUL-DE-SAC LOT IN A DEMAND HOPI ELEM. NEIGHBORHOOD, THIS UPDATED 3BR/3BA EXUDES CHARM! Features include fully remodeled kitchen with granite counter tops, family room with u replace, French doors overlooking expansive patio & sparkling play pool. Vintage tile, extensive Saltillo & plantation shu ƕ ers lend character. OFFERED AT $495,000. EXPANDED HACIENDA GRANADA RANCH STYLE FEATURING LIVABLE 2200 SQ. FT. 3BR/DEN/3BA PLAN & MANY IMPROVEMENTS! Kitchen with beautiful slab granite counters overlooking family room with brick u replace & French exits~Resort-style backyard with BBQ, bar, B/I seating & sparkling pebble surface pool. OFFERED AT $599,000. 4634 North 42nd Place 4117 East Coolidge Street JUST LISTED! HACIENDA GRANADA 4617 North 65th Street ~ $645,000. 3350 North 60th Street ~ $750,000. SOLD! SOLD! “Arizona’s Award Winning Mortgage Company” Susie Sabel Mortgage Banker Office: 480-305-8845 ssabel@homeownersfg.com NMLS #182660 BK #0906222 20 Years of Arcadia Lending
Page 23 April 2013 Thank a Teacher... Nomination form online: ARCADIADAILY.COM/TEACHER Cranston Continued from page 22 For example, A.R.S. 9-511 authorizes municipalities to condemn land outside their city limits only for speci fi c limited projects. Also, A.R.S. 12-1112 requires the government to establish that the taking is “necessary” to a public use. Accordingly, a landowner may challenge the government’s allegation of necessity, especially where the project is not expected to move forward in the near future. Similarly, A.R.S. 12-1115 states that public projects should be located in a manner most compatible with the “greatest public good and the least private injury.” Arizona courts have held this statute allows landowners to defeat condemnation if they can prove the project is unnecessarily injurious to their property. Early settlement discussions The best opportunity to minimize a condemnation dispute is immediately prior to or after the government fi les its complaint. First, the government is required by statute to make a pre- fi ling settlement offer in writing. In response to this offer, the landowner can make a counteroffer and attempt to settle the matter without the need for a lawsuit. However, sometimes pre- fi ling negotiations fail because the government is pressed by a deadline to obtain possession of the property so construction can begin. Just because the government fi les suit and obtains possession does not mean the opportunity to engage in meaningful settlement negotiations has passed. Rather, once possession is addressed, the government may be willing to hold off on actively litigating the case while the parties explore settlement. Overall, when facing the possibility of condemnation, it is always a good strategy for the landowner to obtain as much information about the project and the process as possible. Armed with this information, the property owner can assess the options and work toward a prompt and fair resolution. Jennifer A. Cranston is a shareholder at Gallagher & Kennedy, P.A. She practices general commercial litigation with an emphasis on real-estate dispute. More information is available at GKNET.com. 7875 E. Frank Lloyd Wright Blvd. Scottsdale AZ, 85260 480-778-2440 Craig Thorpe Honda Fleet Manager CThorpe@RightHonda.com Contact Craig today for your friendly neighborhood discount! road trip in style this summer road trip in style this summer More than 70 2013 Pilots in stock! 480-778 Contact Craig today for your friendly neighborhood go wherever the wind takes you... ...but get there in a Tacoma. g Neil Germundson Toyota Fleet Manager NeilG@RightToyota.com 7701 E. Frank Lloyd Wright Blvd. Scottsdale AZ, 85260 480-778-2200 Contact Neil today for your friendly neighborhood discount! One appointment. Expert doctors. Convenient services. 4350 E. Camelback Rd., Ste F100 Phoenix, AZ 85018 s FPSAZ.com Because caring for your health has always been our passion, we’ve made the following services conveniently available in our office. s %XCELLENT CARE FOR ALL AGES s 3AME DAY APPOINTMENTS s /N SITE CLINICAL LABORATORY AND 8 RAYS s $ERMATOLOGY AND /PTOMETRY SERVICES s "OTOX AND /BAGI SKIN CARE NOW AVAILABLE Celebrating 43 years of family care -ARK ! 7YSE -$ )RA ( 5NGAR -$ +ARIN /#LAIR $/ -ICHAEL 'OTLIB -$ Psychiatrist !LLAN 'OLDMAN $/ $AVID &RANCYK $/ 4% -C#AULEY -$ Kate Montgomery, FNP (EIDI 5NGAR $/ *OHN 3TATHAKIS $/ #ERTIlED $ERMATOLOGIST Optometrist $AVID !NDERSON /$ #ERTIlED $ERMATOLOGIST !NDREW * 2ACETTE $/ #HARLES ,EVISON -$ Walk-ins welcome. M-F 8 a.m. to 4 p.m. and Saturday 8 a.m. – 11 a.m. Open late on Thursdays till 8 p.m. and Saturdays from 7 a.m. – noon.