Arizona Court of Appeals Division One Holds that When the Government Eliminates a Property Owner’s Established Access to an Abutting Street and the Owner Retains Access from Another Street, the Owner is Not Necessarily Foreclosed from Obtaining Compensation for Damages to the Property.

In February 2005, the City of Phoenix (the “City”) offered to purchase a temporary construction easement on property owned by John Garretson for use in constructing the Central/East Valley Light Rail (the “Project”).  Garretson agreed the City could use the property during construction and that compensation would be determined through a condemnation proceeding if the parties could not agree on the amount to be paid. 

Upon completion of the Project, the City constructed a concrete barrier that permanently blocked two driveways on the property that had allowed access to Jefferson Street.  Garretson still retained access to the property from another street. 

A short time later, the City filed a complaint in eminent domain to determine the just compensation to be paid to Garrison.  In his answer, Garretson claimed the right to be compensated for the loss of the property’s access to Jefferson.  The City eventually moved for partial summary judgment, seeking a ruling that Garretson was not entitled to compensation for loss of access to Jefferson.  The trial court agreed, concluding that Garretson was not entitled to compensation because he had alternative access to the property.  Garretson timely appealed.

On appeal, the Arizona Court of Appeals vacated the trial court’s entry of partial summary judgment.  Municipalities in Arizona have broad authority to exercise the power of eminent domain under A.R.S. § 12-1111, subject to Article 2, Section 17 of the Arizona Constitution, which provides that “[n]o private property shall be taken or damaged for public or private use without just compensation.”   Arizona courts have broadly applied the damages clause to compensate landowners for governmental action that materially or substantially impairs the right of ingress and egress.  According to the Court, the common thread in these cases is that the government may not completely remove or substantially impair a property’s existing access to an abutting roadway without providing just compensation to the owner.  Moreover, the mere fact that the impairment may have been a valid exercise of the City’s police power does not mean the City had an unqualified right to destroy or substantially impair access without paying just compensation. 

In this case, experts retained by Garretson opined that the development of the light rail line and loss of access to Jefferson Street had a significant adverse impact on the market value of Garretson’s property.  Considering these factual assertions in the light most favorable to Garretson, the Court concluded that there was sufficient evidence creating genuine factual issues as to whether access to his property was materially impaired.  Consequently, the Court vacated the trial court’s entry of partial summary judgment and remanded for further proceedings.

Judge Brown authored the opinion; Judges Norris and Hall concurred.