Eminent domain allows a government entity to take private property for the public good.
Scottsdale has settled a nearly year-long eminent domain battle with a local tennis club owner for $2.5 million.
The City Council voted on April 25 to pay the owner of the Scottsdale Resort and Athletic Club $2.5 million plus interest to cover payment for property where it intends to build a fire station.
Mayor Jim Lane said on May 11 that the city is waiting for staff to finish designing the fire station before construction goes forward. The legal battle had gone all the way to the Arizona Court of Appeals, which upheld a decision in Scottsdale’s favor last December.
“We’re glad to have gotten past it and settled it,” Lane said. “We’re in the process of finalizing that and there’s no indication that that won’t be completed just that way.”
Gary Meyer, project manager for Scottsdale, said construction should begin in the fall of 2018 and finish in 10 to 12 months.
Property owner Robert Hing did not return requests for comment from The Arizona Republic that were made via email, phone calls and an in-person visit to his office.
Hing has owned the 7-acre property since 1971 and had a $10 million deal to sell the parcel to IPA, a Phoenix-based developer that was going to build a senior-living facility.
Last June, the City Council voted to seize 1.5 acres of Hing’s property to relocate Fire Station 603 in order to bring the city’s emergency response time up to the four-minute national standard. Eminent domain allows a government entity to take private property for the public good.
After the city’s action, IPA canceled its purchase agreement, according to court records.
The next month, Hing and his wife, Alice, sued the city seeking $100 million. In addition to the lost $10 million deal, Hing argued the firehouse would be too close to allow him to run the tennis club profitably.
He also cited a 2015 city study that identified another site as the best place for Scottsdale to put the firehouse.
Last October, Maricopa County Superior Court sided with Scottsdale and permitted the city to take “immediate possession” of the land, which is located on Indian Bend Road, just west of Pima Road.
Hing appealed. In December,Judge Kent Cattani found the “superior court’s decision that locating Fire Station 603 at the property will lead to the greatest public good is supported by sufficient evidence.” He agreed “that the city did not act arbitrarily or capriciously in finding that taking the property was necessary.”
Lane called the situation a “matter of life and death” at a 2016 City Council meeting and again in a recent interview, but said he never wanted the city’s arguments to appear hyperbolic.
“We’re not ever pretending that somebody is killing people by not cooperating with us,” he said. “But it is a real component when you’re talking about something like this. Access and response time is always a matter of life and death. But that doesn’t mean that any system that we put in place is perfect in that regard.”
How the case unfolded
Voters in 2015 approved a $16.4 million bond to pay for moving the fire station from its location east of Scottsdale Road on McDonald Drive, though the bond language did not specify a new location.
After Hing refused to sell, the City Council passed a resolution in June 2016 deeming his property “necessary and essential as a matter of public welfare in the public interest.”
Public Works Director Dan Worth said at the time that the current fire station was in serious need of renovations.
At 4,900 square feet, the fire station is about half the size of Scottsdale’s newer ones, he said. It’s also the city’s oldest firehouse, built in 1971, and doesn’t meet ADA requirements to accommodate both male and female firefighters.
Also, a 2015 study commissioned by city officials found firefighters from that station weren’t consistently able to get to fire scenes within the optimal four minutes.
The study found response times could reach nearly seven minutes.
Relocating was supposed to address both the renovation issues and the response-time issues.
“It always saddens us when we have to use eminent domain, but it really is about the health and safety of our community,” City Councilwoman Linda Milhaven said at the time.
At the council meeting, Hing yelled at council members from the audience.
He challenged the city’s claim for months. In his Superior Court filings, Hing alleged the city:
- Didn’t give him enough time to present why the exercise of eminent domain wasn’t necessary. At a 2016 City Council meeting, he was given three minutes to speak on the matter, while city staff spoke for about 30 minutes.
- Didn’t meet the greatest public good and didn’t cause the least public injury possible by taking this portion of his property.
- Didn’t prove exercising eminent domain was completely necessary.
Scottsdale’s responses in court called Hing’s claims “nonsense” and argued that not relocating the fire station would cost residents their lives.
“Let us be clear,” a filing says. “Defendants are asking this court to order the relocation of a fire station such that thousands of people will be unnecessarily left outside the four minute coverage area, resulting in loss of life and property that might otherwise have been avoided.”
Hing also cited the 2015 study, which said the best location for a new firehouse was near Hayden Road and McDonald Drive.
However, the city found that location was in a FEMA flood zone and couldn’t be used for the fire station. City officials saw Hing’s property as the next best choice, according to court records.
“The fact that a 2015 study postulating the most perfect coverage based on unlimited resources recommends a different location — assuming 21 new fire stations will be built — is irrelevant,” a Scottsdale court filing says. “We are dealing in the real world, not a utopia.”
In an interview with The Republic, Peter Martori, a Scottsdale-based real-estate lawyer, said the land in the FEMA flood zone would have been the best choice, but he understands why the city couldn’t use it and said Scottsdale didn’t overstep any boundaries by exercising eminent domain.
“Certainly it’s their right to use eminent domain,” he said. “After analyzing the other alternative sites, that McDonald Road site would have been the least invasive.”
He said Hing’s property became the next best, because it was large enough to accommodate the type of equipment the Scottsdale Fire Department wanted to use in the new station.
Scottsdale’s Capital Improvement Plan for the upcoming fiscal year, which starts July 1, lists nearly $7 million to be used in the fire station’s relocation.
For the relocation, $130,000 is going to come out of the city’s general fund and $6.75 million is going to come from the 2015 public safety bond.
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