Petition for Writ of Certiorari — Dietmar Hanke, et al., Petitioners v. Arizona, et al.

No.

IN THE

Supreme Court of the United States

DIETMAR AND LINDA HANKE,

Defendant-Intervenors, Petitioners,

U.

STATE OF ARIZONA and FOOTHILLS RESERVE

OWNER®’ ASSOCIATION, INC., an Arizona

Corporation,

Respondents.

ON PETITION For WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

DIETMAR AND LINDA HANKE

Petitioners, Pro Se

2729 West Redwood Lane

Phoenix, AZ 85045

602-300-8622

dietmarhhanke@gmail.com

QUESTIONS PRESENTED

. Do the Intervenors have an absolute right to

intervene as a separate, bona fide Party in the

State’s action to take common lands of their

HOA pursuant to ARCP! Rule, 24(a) (2)?

. Does the State’s failure to provide Notice and

Summons to HOA homeowners per ARS? §12-

1145 constitute fatal error?

. Did the State’s Settlement with the HOA fairly

settle the Intervenors’ Takings Claims?

. Was the Trial Court’s approval of the State’s

HOA Taking settlement, over and above the

Intervenor’s objection to the taking and without

addressing the prohibitions and supremacy

clause contained in Prop207°% raised by the

Intervenors, a reversible error?

. Was the Intervenors’ Interlocutory Appeal, based

on Prop207’s prohibitions, properly rejected by a

single Judge Pro Temp., allegedly because the

trial judge’s order was not a “final ruling,” when

in fact the immediate consequences were

irrefutably final?

. Was the Trial Court’s declaration of Summary

Judgement plain error?

. Was the Trial Court’s insistence on the statutory

formula for damages plain error?

ARCP = Arizona Rules of Civil Procedure

ARS = Arizona Revised Statutes

ARS 12-1136 (5) (b) and 12-1137

li

8. Did the State’s and HOA’s experts fail to

correctly interpret statutory language to quantify

real-world bank value losses per ARS?

9. Is the Substitute Facility Remedy the Only

“Just” Remedy?

10.Does ARS Prohibit Punitive Damages in this

Case?

11.Was the Court’s failure to proceed to trial a

reversible error?

12.Was the Award of Fees to the HOA’s Attorney

Proper?

i

PARTIES TO THE PROCEEDING

1. Plaintiffs: State of Arizona, ex rel., John

Halikowski, Director, Dept. of

Transportation

2. Defendants: Foothills Reserve Master

Owners’ Ass’n, Inc., an Arizona Non-profit

Corp., et. al

3. Defendant - Intervenors Petitioners: Dietmar

and Linda Hanke, Individuals

RELATED PROCEEDINGS

Arizona Supreme Court CV-23-0088-PR

Court of Appeal CA-CV 22-0216

Interlocutory Appeal CA-CV 18-0463

Maricopa Trial Court CV2017-010359

lv

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........cccccseeeeeseeeeees Vv

PETITION FOR WRIT FOR CERTIORARI ...... 1

CASES BELOW asissesssvcsnsncanasizaenssaanssesivencaanecss 1

JURISDICTION wcscssccsassesesnnsrassesencesenwasvanvecasene 2

CONSTITUTIONAL PROVISIONS ..........cceeeeee 3

STATEMENT OF THE CASE .......cccccceeeeeene eens 6

ARGUMENTS ........-csssiwsiiansvaaastessssiecssasectwncenees 8

REASONS FOR GRANTING THE WRIT .........36

CONCLUSIONS .........::csseceeeeeeeeeeeeeeserseseeeeeeees 37

TABLE OF AUTHORITIES

Cases

Catalina Foothills Unified Sch. Dist. No. 16, v.

La Paloma Prop. Owners Assn, Inc., 229 Ariz.

525 (Ariz. Ct. App. 2012)... cece eee eee eee nee 12,13

FDIC v. United States, 1996 U.S. Dist. LEXIS

19644 (D. Or. 1996)... cece cece ne eee ee eee eee eeenee eee 15

Gamier v. Alexander, 801 F.2d 799 (6th Cir. 1986).15

Kelo v. New London, 545 U.S. 469 (2005)... 7, 16,

24, 28

King’s Prerogative in Saltpeter, English Reports

Citation: 77 E.R. 1294......... 0... cesveesssweawenenneweresies 7

Norton v. First Federal Savings, 624 P.2d 854

(Ariz. 1981)... .nsssssupeesmmeverromcuamicammmsiesmonens 11

Queen Creek Summit v. Davis, 219 Ariz. 576, 201

P.3d 587 (Ariz. Ct. App. 2008) .......ccccceseceeee eee 20, 39

United States v. Virginia Elec. & Power Co., 365

U.S. 624.0196 1 )resasannmenawnsrarmnencanmesnmecsusnensaonnnactesh 28

Zipes v. Trans World Airlines, Inc., 455 U.S. 385

(1982) sncnaossnsnswrssssansnneseaeanvavanasearenensevecsoemsuivenvs 15

Vi

Arizona Constitution

Art; 2, Sec. 4 1... 0-annemmcocsienannmonnsaneaens 2, 3, 8, 32 27, 28

Art. 2, Sec. 17 aniannaassancaveamwasess 2, 3, 7, 8, 19, 32, 38

Art.6, Sec. 1 Tesiisvsecesasiiawes 20, 24, 26, 31, 32, 33, 34, 39

Constitution of the United States

Fifth Amend., Sec. 1........ 4, 5, 7, 8, 24, 27, 28, 32, 38

Arizona Revised Statutes (“ARS”)

ARS §12-120F v..ccccccccccccssscsecessessecsecesesaesseeees 18

ARS §12-820.01..ccccsccssscescssceecseceesescseeseseeescsnevaes 31

ARS §12-820.02sransesanspanenaeonnsnnennise tnopinoncsisndieoiadie 31

ARS §12-820.04..cccccccccccsscsecseceeeesecevseeesseseeees 30, 31

ARS §12-1115(A)...cccceccsccsccsscceeesecssscsueeecenesenees 20

ARS §12-1136 (5) (b) swssersseesbonmnaivs’s tasaninad intbnaasictans 17

vil

ARS 812-1137... 00. ceenee cee eee ee nee e ease essen eae i, 16

ARS §12-1145.... ... casensssiscnsaassarwnecorwineeen- u, 12,18

ARS §28-7097... 0... cccce ese ceeeee ee eee tenet een eae ee need 22, 25

ARS §28-7098...... ccc cece eee tee eee eee ee etna ee eee cetera es 16

ARS Title 12, Ch. 8, Art. 2.1 (PPRP - Private

Property Rights Protection Act) ......... u, 8, 17, 18, 21

A.R.S. Title 42, Ch. 18, Art. 9, Sec. 13408............... 9

Arizona Rules of Civil Procedure and Evidence

ARCAP Rule 4(Pvsssssxeissets essvcesnvrnssscascsasenveres 34

Other Authorities

Tyler R. Stradling and Doyle S. Byers, Intervening in

the Case (or Controversy): Article III Standing,

Rule 24 Intervention, and the Conflict in the

Federal Courts, 2003 BYU L. Rev. 419 (2008)...... 9

S&P CoreLogic Case-Shiller AZ-Phoenix Home Price

PETITION FOR WRIT OF CERTIORARI

Linda and Dietmar Hanke, the Intervenors,

respectfully petition this court for a Writ of

Certiorari to review the judgment of the Arizona

Supreme Court, and remand for a re-trial.

CASES BELOW

Trial Court — Maricopa Superior Court

CV2017- 010359 (01 Aug 22 & 08 Aug 22)

Interlocutory Appeal — Arizona Div. 1 of the

Court of Appeals

CA-CV 18-0463 (02 Nov 18)

Arizona Div. 1 of the Court of Appeals

CA-CV 22-0216 (07 Mar 23)

Arizona Supreme Court

CV-23-0088-PR (08 Nov 23)

JURISDICTION

This Court has jurisdiction based on the

avoidance/denial of the following US and/or Arizona

Constitutional Due Process guarantees by the courts

below: (a) a requested jury trial, (b) the complete

disregard of “just” compensation appropriate to the

circumstances, (c) the lack of any kind of homeowner

Notice, (d) the complete disregard and exclusion of

Art. III Intervenors from the State-HOA Possession

and Just Compensation negotiations and settlement,

(e) the Court’s deviation from the AZ RCAP

requiring two judges for a decision to dispose of the

Intervenors’ Interlocutory Appeal, (f) the complete

disregard of a Constitutionally superior voter

initiative law to the contrary, (g) the selection of the

most intrusive build option, (h) the complete lack of

any sort of Discovery, (i) the blatant inequity of

awarding damages to the Intervenors well below

everyone else in the affected HOA, even those that

didn’t buy their homes before the ADOT Show and

Tell, and G) assessing penalties for failing to

immediately adhere to a non-existent rule of Civil

Appellant Procedure. All of the above conflict with

Substantive and/or Procedural Due Process as

guaranteed by the United States Constitution, per

authority of the Fifth and Fourteenth Amendments,

and Title 12, Chapter 8 of the Arizona Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution —

Sec. 1, Fifth Amend. to U.S. Constitution -

Right to a Just Compensation

Sec. 1, Fifth and Fourteenth Amend. to

U.S. Constitution’s — no one shall be deprived of life,

liberty or property without due process of law.

Seventh Amend. to U.S. Constitution —

Right to a jury — In Suits at common law, where the

value in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no fact

tried by a jury, shall be otherwise re-examined in

any Court of the United States, than according to the

rules of the common law.

Arizona Constitution —

Art.2, Sec. 4 — No person shall be deprived of

life, liberty, or property without due process of law.

Art.2, Sec. 17 — Whether the contemplated use

be really public shall be a judicial question, just

compensation having first been made and

determined as such without regard to any legislative

assertion that the use is public. Just compensation

shall be ascertained by a jury.

Art.2, Sec. 23 — “The right of trial by jury

shall remain inviolate.”

Art.2, Sec. 32 — The provisions of this

Constitution are mandatory, unless by express

words they are declared to be otherwise.

Art. 6, Sec. 26 — Each justice, judge

shall... take and subscribe an oath that he will

support the Constitution of the United States and

the Constitution of the State of Arizona.

BACKGROUND

In 2003, Intervenor Dietmar Hanke, began

looking for a new home in the greater Phoenix area.

Having previously lived in high-density locations

such as El Segundo, CA and Mission Viejo, CA, the

Intervenor was looking for a quieter location, with

scenic views, clean air, etc. After one year of

searching greater Phoenix and environs, Mr. Hanke

came upon the new Foothills Reserve development

south of South Mountain in Phoenix.

This new development offered affordable

homes with desirable layouts miles away from any

commercial or industrial zoned areas. The home

layouts and options were very appealing. What’s

more, the developer was very accommodating to

Hanke’s customization requests. Significantly,

though remote, the location was within a few miles

of supermarkets, banks, and_ specialty stores.

Intervenor moved in August 2005 as an original

owner. ADOT posted a handbill on Intervenor’s

front door two months later, inviting him to come

down to the Grace Inn Hotel‘ to “learn about the

freeway.”

What the Intervenor learned there later was

that a freeway would be built right through his lot.

...but the “specifics had not yet been determined.”

The local homebuyer reaction was immediate: some

(those who paid the absolute lowest downpayment

possible) walked away, others rented out -

sometimes to numerous adults - and moved way.

Still others attempted to sell before the news got out

4 The Grace Inn was a local hotel where ADOT had rented an

exhibition room with tables.

into the market. And some even sold to corporations

for liquidation or for temporary housing of

executives.

Ten years later, in 2015, ADOT began

demolishing 21 homes, perimeter walls, view

fencing, mail kiosks, etc. in very close proximity to

the Intervenors. Condemnation blight set in and

home values plummeted. In combination with the

50% general price slump in home prices in the

Phoenix market between the end 2005 to mid-20205,

relocating was not a viable option. The neighborhood

was in limbo.

In 2017 the Intervenors discovered the

relevant Eminent Domain action on the local

superior court docket. In short order, the Intervenors

intervened with Article III standing.

6 S&P CureLogic Cuse-Shiller AZ-Phoenix Home Price

Index (https://fred.stlouisfed.org/series/PHXRNSA)

STATEMENT OF THE CASE

What distinguishes this case from the typical

eminent domain case is that here the Intervenors’

private home estate is at stake. Few such cases are

reported for obvious economic reasons. No public

defenders are available. And, it’s a conflict where

the best that can be hoped for is to be made

marginally whole, and that after much time, effort,

and expense. Intervenors are, and have been from

the beginning, proceeding pro se.

This case presents questions of great and

increasing importance concerning state eminent

domain power in the context of homeowners living

within a Homeowners Association (HOA). According

to the U.S. Census Bureau, 82% of newly built

homes sold in 2021 were a part of an HOA.” ® The

“trend is expected to continue, as growing cities have

found that outsourcing new infrastructure (things

like sewers, roads and parks) to developers of

planned projects creates more housing without

overburdening current city budgets.” 7

This case also presents questions pertaining

to the taking of “collectively owned” land (aka

“common land”) within an HOA for the construction

of an elevated HAZMAT Truck Route freeway (the

“L202” South Mountain Freeway), without any

articulable public need and with clear and much less

expensive alternatives readily available nearby,

albeit without the benefit of stimulating the state’s

economy by the infusion of federal construction

6 As reported in Real Estate News (February 15, 2023)

7 Thid

funding to blast through mountain ridges.

Furthermore, such freeway offers no offsetting

benefit to the local communities, especially not to the

HOA in question here.

This taking is also in direct conflict with an

“Advance Purchase Directive’® issued by Maricopa

Association of Governments (“MAG”), a federally

chartered Metropolitan Planning Organization

(“MPO”), in 1987 (87 years ago), which authorized

ADOT to purchase the requisite land for the L202

before homes are built thereon. (Trl/11628205/Ex. 4)

Two cases readily come to mind: the King’s

Prerogative in Saltpeter? and Kelo v. New London?°.

Both involve private homeowner properties. The

former stands for the concept that the sovereign can

take land when it is “necessary” for a public need

(i.e. national defense), not just “desirable” for public

use. Even then, the landowner must receive just

compensation. It is the basis for the final clause of

the Fifth Amendment.

The latter stands for the unpopular concept

that economic development is a_ necessary

government interest per se. This is a self-serving

proclamation for both the growth of government and

the funding of private land development companies

and interests. It unjustly prioritizes the interests of

a few over the many, the newcomers over the

existing landowners. “Build it and they will come”.

8 Advance Purchase Directive (Trl/11628205/Part 5 of 11)

9 King’s Prerogative in Saltpeter, English Reports Citation:

77 E.R. 1294

10 Kelo v. New London, 545 U.S. 9 (2005)

In response to Kelo, Arizona _ voters

overwhelmingly enacted the Private Property Rights

Protection Act, “Prop 207’, A.R.S. Title 12, Ch. 8,

Art. 2.1, in 2006, to specifically exclude “economic

development”!! as a reason for the taking of private

land. Here, in this case, economic development of

the East Valley is the state’s prime goal.

In this case, the State has lost sight of the

most basic concepts at play and focused only on the

mechanical application of statutory accounting

protocols and questionably relevant and dated case

law, rather than the equity inherent in the term

“Just compensation”, the proscriptions of Prop 207

against a taking altogether, and in identifying who

the actual aggrieved landowners are. The Courts

below have also collectively and individually totally

ignored US and Arizona Constitutional concepts of

Just Compensation, Notice, and Due Process in

addition to the Arizona law relevant to this scenario.

ARGUMENTS

1. Do the Intervenors have an absolute right

to intervene as a separate, bona fide Party in the

State’s action to take common lands of their

HOA pursuant to ARCP Rule, 24(a) (2)?

The Intervenors (“Hankes’”) also have Art. II]

1 ARS 12-1136(5)(b) Specifically: (5) “Public Use” (b) Does not

include the public benefits of economic development,

including an increase in tax base, tax revenues,

employment or general economic health.

Standing.12. Both are based on their individual

beneficial and equitable ownership of the HOA’s

common lands. As such, the Interveners can

intervene on the side of the Defendant or Plaintiff,

or as adversaries to both.13

Homeowners are the only beneficial and

equitable owners of the collectively owned common

lands and are thus the only proper parties to oppose

the State’s Taking. The HOA is merely legal title

holder, a custodial owner on behalf of the

homeowners, much like a brokerage house whose

name is on shares of stock for trading convenience on

behalf of its clients, the true owners. The HOA paid

nothing for such lands and has no capacity to “use

and joy”, nor any ability to sell such lands. Instead,

it has a fiduciary duty to maintain and preserve such

lands on behalf of the homeowners.

The HOA is legal title holder principally for

convenience: for consolidated maintenance and to

avoid re-titling each of the numerous common

parcels upon the (re)sale of each home within a 611

home HOA. Further, homeowner “easements of use”

of the HOA’s common lands must be appurtenant to

their home ownership pursuant to Arizona law.!4

Thus, the Intervenors are genuine parties, not

just advisory parties, and have a full-fledged right to

intervene where the collectively owned common

12 Tyler R. Stradling and Doyle S. Byers, “Intervening in the

Case (or Controversy): Article HIT Standing, Rule 24

Intervention, and the Conflict in the Federal Courts,” 2003

BYU L. Rev. 419 (2003).

13° www.law.cornell.edu/wex/intervene

14 ARS. Title 42, Ch. 18, Art. 9, Sec. 13403

10

lands and/or the State’s demolition of homes and

collectively owned assets are implicated. The HOA

is merely an administrator charged with fiduciary

duties to protect and preserve the common lands on

behalf of the homeowners.

2. Was the Trial Court’s Ruling that the

HOA can adequately represent all homeowners

with respect to the Taking in error?

Indeed, the HOA’s counsel, and at times the

Trial Judge, morphed the case caption multiple

times and held on to several/all homeowners in

addition to the HOA as named defendants for nearly

the duration of the litigation.15 During most of the

litigation, counsel for the HOA also pursued (and the

court recognized) representation of a class action

defendant group of individual homeowners!¢,

conceding that the Court and even he believed that

the rightful owner(s) of the common lands were

indeed the homeowners.

But both those strategies proved to be too

cumbersome and complicated!’. So, the Court and

the HOA abandoned the class action and at the very

end dispensed with the individual homeowner

defendant strategy.

15 Specifically: (Trl/ 9051571/ Pltfs; Trl/9180500/ Pltfs; Trl/

9194476/ PLTFs & Capt; Trl/9689025/ Capt & 2

Homeowner Pltfs; Trl/14003376/Pltfs; Trl /18712462/ Pltfs;

and, Trl /9235815/ Pltfs).

16 (e.g. Trl/04-05-18/“Matter Under Advisement”; Trl/02-07-

2018/’Ruling’, etc.)

17, Comment: Class-Action Defendant classes are rare and no

one in the court seemed to have any such experience.

11

Further, the State and its lawyer relied on a

single clause in the HOA’s governing contractual

document (the “CC&R’s”) to convince the Trial Court

that the HOA must represent the homeowners in the

negotiation for the Taking. But the State is not a

party to that contract and thus cannot enforce any

contract provision therein.

Nor was the relevant clause interpreted

correctly. First, it merely contains an

“appointments” clause, but not any exclusionary

language. Second, the CC&Rs is a contract of

adhesion with respect homeowners. And third, any

contractual clause that removes all land defense

rights from those who, in the end, have paid for

such, and which rights are owned appurtenant to

their home!8, is unconscionable, and thus the must

be stricken. Further, the very same CC&Rs

expressly convey the right to any homeowner to

enforce any covenant in the CC&Rs that the State,

as a homeowner prior to any condemnation

proceeding, had violated.

Still further, the HOA is merely an incidental

beneficiary and can muster no reason why it should

be characterized as an intended beneficiary. “The

contract itself must indicate an intention to benefit

that person” per District Judge Teilborg in Norton v.

First Federal Savings , 624 P.2d 854, 856 (Ariz.

1981). This is especially so when the HOA and the

State have unclean hands due to the previous

uncontested state demolition of 21 HOA homes in

2015 (prior to ADOT filing anything), and failed to

pay and collect, respectively, monthly dues on such

18 ARS 42-13402, C, 4.

12

thereafter, in violation of the very CC&R’s the courts

below now want to enforce. During all those two

years, the HOA stood idly by, with the exception of

hiring a law firm to try to force the Intervenors to

abandon their enforcement of the CC&Rs against the

State.

Finally, the State’s and the Trial Court’s

reliance on Catalina Foothills Unified Sch. Dist. No.

16, v. La Paloma Prop. Owners Ass'n, Inc./9 is

miscast and likely an artifact of AI. In that case (a)

members of that association included renters and

golf club members who owned no property, (b) the

paramount concern was child safety, and (c) there

was no resultant change in usage for the members,

other than the exact timing of the short periods of

time when such children were dropped-off or pickedup from their school. None of this provides any

guidance for the case at hand. Facts do matter, not

just key words.

Here, in this case, the Intervenors were not

informed of when/where such negotiations would

take place and thus prevented from participating in

the negotiations for the Taking altogether. This is

likely a reversible error by any standard.

3. Does the State’s failure to provide Notice

and Summons to the HOA homeowners per

ARS §12-1145 constitute fatal error?

The homeowners, who are easily identifiable

on county records, were never given Notice of the

18 Catalina Foothills Unified Sch. Dist. No. 16, v. La Paloma

Prop. Owners Ass'n, Inc.19, 229 Ariz. 525 (Ariz. Ct. App.

2012)

13

State’s eminent domain filing as required by ARS

§12-1145. Even if Catalina Foothills were relevant

law, given Notice, the homeowners here could have

easily recalled any HOA Board Members beholden to

ADOT. The Intervenors had already done so once

before, in short order, and by a large 2:1 margin.

But this case was well underway before it was found

on the Trial Court docket by the Intervenors.

The Intervenors and other homeowners could

also then have participated in the court proceedings

from the beginning of the State's action,

unhampered by delusions of spending grandeur on

the part of the HOA board members. Further, after

the State’s decade of psychological warfare against

the homeowners, in conjunction with the ADOT-

stimulated high homeowner turnover, and against a

backdrop of plummeting home values, the few

remaining original owners who had purchased their

homes at a premium prior to the State’s Grace Inn

Show and Tell (2005)2°, likely may have felt less

hopeless and more inclined to get involved.

Adding insult to homeowner injury was

MAG’s 1987 “Advance Purchase Directive”?! which

directed ADOT to purchase all undeveloped land

required for the L202 “before homes were built

thereon”.22 That Directive was the only “Notice” on

the Intervenors’ Title Report. Ironically, federal

funds were generally available to ADOT for such

purchases. Significantly, the L202 was ultimately

20 Grace Inn: see page 2, paragraph 2 above.

21 (Trl./11628205/Ex4)

22 Federal Funds were available from DOT to purchase such

vacant lands.

14

built precisely on the land identified in the Directive.

The net result of the above was that home

buyers were given Title Notice that essentially

prohibited the L202’s construction on their lands;

and yet, 28 years later, the State failed to provide

any kind of Legal Notice to the homeowners that

their lands would be taken after all. What was the

State’s motive not to provide such? There are no

good reasons. How difficult would it have been for

the State to provide Notice of the demolition of 21

homes and the taking of their common lands? Thus

the HOA’s inexperienced Board of Directors allowed

the State to take such lands (after having taken 21

homes already) with hardly any opposition2? and

prepared themselves to spend whatever millions in

compensation they were going to receive from the

State.

It was the Intervenors who produced the MAG

Directive into this litigation. Why didn’t the

attorney for the HOA find such? Or the HOA itself?

The financial motive should be obvious.

IV. Did the State’s Settlement for the Taking

with the HOA only, fairly settle the

Intervenors’ Claims?

Since the negotiations and subsequent courtapproved settlement between the State and the HOA

for the taking of HOA land did not include the

Intervenors, it constituted manifest error, at least

with respect to the Intervenors, per Zipes v. Trans

2 Ji was the Inlervenor that convinced an JIOA Board

Member to get an attorney in the first place.

15

World Airlines Inc.?4 Further, per Garnier v.

Alexander**, “Parties who choose to resolve litigation

through settlement may not dispose of the claims of

a third party without that party's agreement.”26

Clearly the Intervenors’ claims were different and

clearly the Intervenors are a legitimate party to this

litigation. And clearly the Intervenors did not so

stipulate.

Further still, in FDIC v. United States, 1996

U.S. Dist. LEXIS 19644 (D. Or. 1996), the District

Court noted that an Intervenor, is a “full participant

in the lawsuit and is treated just as if it were an

original party. And as a general proposition, the

original parties may not stipulate away the claims of

the intervenor.” It’s a pretty simple concept, yet the

courts below ignored such.??

Additionally, neither the State nor the HOA

had, nor could have, objected to the Intervenors’

intervention, as it was not “permissive”. It was based

on their estate in land. Neither the courts below,

nor the attorney for the HOA, seemed to comprehend

or acknowledge that.

Finally, the settlement between the State and

the HOA only, had no logic, reason, or “basis of

valuation” that was ever disclosed to the court, the

homeowners, or the Intervenors. The settlement did

not even include the approximately eight acres of

common lands that became inaccessible due to the

24 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)

25 Gamier v. Alexander, 801 F.2d 799 (6th Cir. 1986).

26 6 “Significantly, the Intervenors did not so stipulate.”

16

L202 itself. Basically, the HOA gave the State what

it could not take and for an unjustified amount. The

assessor’s valuation of $500 per common parcel?é

provided no guidance for actual market value or a

Fair Market Value.

The State’s and the HOA’s failure to disclose

the results of any common land valuation or

valuation method (especially one that also included

lands that became inaccessible to the condemned

after the taking) also did not provide any meaningful

guidance for a fair settlement.29 After all, the actual

value of common lands and elements, are reflected in

the values of the homeowner’s estates, not the

assessor’s nominal valuations of such common lands

or a dubious bank appraisal. This is yet another

basic and logical concept of common interest

communities.

V. Was the Trial Court’s approval of the

State / HOA settlement, over and above the

objection to the taking raised by the

Intervenors, and without addressing the

prohibitions and supremacy clause contained

in AZ Prop207, a reversible error?

AZ Prop20739, was an Arizona voter initiative

in the wake of the infamous Kelo decision and now

codified as the Private Property Rights Protection

Act?!, is also protected by AZ Prop105%2, which

28 As required by ARS 42-13403

29 ARS 28-7098

30 ARS 12-1136(5)(b) and ARS 12-1137

31 ARS Title 12, Ch. 8, Art. 2.1

17

prohibits the Legislature from repealing voterapproved measures, the governor from vetoing such,

and the legislature from modifying such.

There has been no judicial challenge to

Prop207s economic development prohibition (ARS

12-1136(5)(b)) to date; so, there is no guidance from

the judiciary to this day. Identified by the

Interveners at the very beginning of this litigation,

Prop 207 is and remains an untested and

unaddressed voter initiative law with respect to ARS

12-1136(5)(b) and state takings.

Factually, a freeway is a “public use”, but that

is not the “purpose” of the L202. The only apparent

purpose of the L202 is to facilitate the very

“economic development” of Phoenix’s East Valley

prohibited by Prop207, which is now — three plus

years after the L202’s opening — being developed ata

very fast pace. Build it and they will come.

This can easily be seen by looking at the time

progression of the area on Google Earth or in the

propaganda published on-line by MAG itself.

Clearly, this new law’s prohibition warranted

judicial review and a trial with the presentation of

evidence in this case. Failure to do such is manifest

reversible error.

The operative question is the following: “does

the taking of land in location A to build

infrastructure for the economic development of land

in location B fall under the ambit of the ARS 12-

1136(5)(b) prohibition?”

Finally, the Intervenors never did stipulate to

the taking of lands and thus any agreement towards

32 Ariz. Const. art. 4, pt. 1, § 6(A)-(D))

18

that end between the State and the HOA is facially

invalid. (Tr/9517090/Notice of Objection).

VI. Was the _ Intervenors’ Interlocutory

Appeal, based on Prop207’s_ prohibitions,

properly rejected by a single Judge Pro Temp.,

allegedly because the trial judge’s order was

not a “final ruling,” when in fact the immediate

consequences thereof were final?

This logic flies in the face of reality, as the

land was subsequently fenced off from the remainder

of HOA lands and summarily destroyed with

finality. Twenty-one homes within the HOA had

already been demolished by ADOT without any

objection from the HOA in violation of the very same

CC&R’s the HOA’s lawyer now uses as a basis for

charging the Intervenors with legal fees for their

lawyer’s opposition.

Physical finality overrules any subsequent

final ruling by the court to the contrary, the absence

of a Rule 54(b) statement notwithstanding. It’s

implicit.

Further, the ruling by a single judge (CA-CV

18-0463) also appears to facially violate ARS 12-

120F, which requires that a “majority of two of the

three (appellate) judges shall be sufficient to render

a decision.” This violation of logic and judicial rules

speaks strongly for a reversible error, and possibly

more.

It is also quite telling that the ruling by the

Judge Tempore cites the reason for denying the

Interlocutory Appeal was that the Trial Judge had

19

not signed the Orders. Essentially, the Orders®? that

precipitated the irreversible damage were not

challengeable for lack of a court signature.

VII. Was the Trial Court’s declaration of

Summary Judgement* “plain error”?

There were no disputes as to material facts or

evidence, as the State, supported by the Trial Court,

simply did not produce anything requested by the

Intervenors and the Trial Court simply chose to

ignore or summarily dismiss countervailing facts

and concepts at law to avoid both a trial and a jury

altogether.

Both the State and the Court insisted that (a)

the State’s statutory Eminent Domain power to

declare a “public purpose” and to condemn is

absolute and (b) that statutory “just compensation”

formulas (i.e. bank values) were superior to concepts

in equity, constitutional guarantees, voter enacted

statutes, sound statistical analysis, reality, and even

relevant case law. This mindset begs the question of

why even have a lawsuit in order to take land?

Shouldn’t it then just be a ministerial act by the

County Recorder and Assessor’s Offices?

Further, neither the State nor the Courts

seemed to understand/comprehend how (or why) to

statistically define the loss in a home’s value after 12

years of condemnation blight, followed by five years

of destruction, construction, and ultimately, noise

and pollution. The Intervenors produced plenty of

33 Order of Possession (10 July 18)

34 Judgement: “Summary Judgement” Trl./13994585

20

irrefutable evidence, analysis, and logic to define

such loss.

No expert disputed any of the Intervenors’

Expert Report. Instead, the expert for the HOA

subsequently amended his expert opinion

significantly to incorporate the Intervenors’ logic.

But since there was no Discovery and no jury trial,

only a bench trial without any cross examination or

even opening or closing statements, there was no

opportunity to cross-examine the State’s experts,

and most importantly, no record of the expert

opinions - because there was no trial.

For 18 years, ADOT had been unable to

articulate a “need” for the L202. The claim by the

Courts below that the Intervenors had to show that

there was “no public need” for the taking where it

occurred is complete lunacy and a well-known logical

fallacy: i.e. trying to “prove the non-existence of

something.”

Further, the court in Queen Creek Summit v.

Davis**, contrary to the ruling of the court below,

held that per ARS°* the condemnor must locate a

taking “in the manner which will be most compatible

with the greatest public good and the least private

injury.”37 That did not happen in this case; far from

it.

35 Queen Creek Summit v. Davis®5 219 Ariz. 576, 201 P.3d 537

(Ariz. Ct. App. 2008)

36 Arizona Revised Statutes 12-1115(A)

87 Queen Creek Summit v. Davis, 219 Ariz. 5676, 201 P.8d 687

(Ariz. Ct. App. 2008)

21

Here, ADOT had the alternative of building

the L202 on the nearly empty GRIC*8 lands (which

extends from a hundred yards south of the L202’s

current location and for many miles beyond). ADOT

had done such 20 miles farther east years ago

involving the Pima Indian Community. Doing such

would also have eliminated the need for drilling and

blasting through South Mountain, moving

mountains of earth, building complex on/off ramps,

or taking residential land and homes.®9 But doing

such would not have infused $750 M into the

Arizona economy. The bulk of the truck traffic was

already using The Beltline and W. Riggs Road onehalf mile farther south on the GRIC lands.

Finally, Public Use was never disputed by the

Intervenors. A jail is a public “use” too; but, is there

really a “need” to build it in the middle of Old Town

Scottsdale?

Again, there was no Discovery whatsoever

during the four-year litigation. The Trial Court even

summarily prohibited the Intervenors from

interrogating legislative counsel altogether (with

respect to Prop 207) right up front with a sweeping

and unjustified prohibition.‘°

Production Requests and Interrogatories sent

to ADOT, FDOT, and other government entities

were simply ignored, denied, or “conveniently” could

not be understood. Administrative proclamations

38 ~GRIC = “Gila River Indian Community”

39 Since the L202 is co-funded by the Federal Dept. of

Transportation, the option condemning reservation land

is/was a viable, though unexplored option.

40 Trl/ (5/30/18) Ruling #926/“ME: “Under Advisement Ruling”

on 05/30/2018)

22

were deemed absolute and superior to even voterenacted statutes by ADOT. Good Faith Discovery

Certificates were not signed by the State, and thus

not enforced by the Court.4! Absolutely no FOIA

responses were ever received by the Intervenors

from any entity.

The only production ever received by the

Intervenor was from Maricopa County (when

Maricopa County Attorney was in rehab), which

clearly identified that the County was confused as to

what lands were actually taken.

The State (AZAG) brazenly, and pursuant to

some twisted form of logic, asserted that ARS §28-

7097 meant, incredibly, that any reduction in real

estate value due to the threat of a taking before the

State’s filing must simply “be ignored” altogether.

And the Court agreed!

All four of the cases cited by the Trial Court

below in its Decision for identifying valuation dates

are totally irrelevant to this case. (Perhaps a glitch

in the Attorney General’s Office AI?42) All deal with

the hypothetical values of empty/unimproved lands

and speculative future values. One even claims

detrimental reliance on a condemner’s plan. Not one

of these cases is even remotely relevant to the case

at hand.

Intervenors’ proximity damages were never

addressed by the Courts, in spite of living less than

300 feet from the elevated HAZMAT Truck Route

freeway and with their second-floor bedroom facing

the L202. Yet, the Trial Court awarded proximity

41 16A.R.8. Rules of Civil Procedure, Rule 26.2(g)(1)(A)

42 https://azcapitoltimes.com/news/2024/03/01/ “courts move

swiftly as AI enters legal system”

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