Arizona Court of Appeals Issues Decision: Highest and Best Use Will Be Part of Proper Analysis

Arizona Court of Appeals Decision Regarding Whether a Trial Court May Properly Admit Evidence of a Tax Protest to Establish Fair Market Value in a Deficiency Action

Division 1 of the Arizona Court of Appeals recently issued a decision in Roofing Wholesale Co., Inc. v. Neil, 2012 WL 1207349 (Ariz.App.Div.1) (2012). The decision was not approved for citing as a legal precedent except under limited conditions. Regardless, the opinion gives insight into how the Court of Appeals views the issue of tax appeal information being offered as evidence in a fair market valuation hearing.

The Court was presented with the issue of whether a trial court may properly admit evidence of a property owner’s “admissions” made in a tax protest in order to establish fair market value under A.R.S. §33-814, Arizona’s deficiency statute. The Court of Appeals declined to follow the decision of the Arizona Supreme Court in Salt River Project Agricultural Improvement and Power District v. Miller Park, L.L.C., 213 Ariz. 246 (2008) because Arizona deed of trust law (A.R.S. §33-814), according to the court, “does not demonstrate a legislative intent to adopt the highest and best use standard in a fair market valuation proceeding under the deficiency statutes.”

This opened the door for use of evidence from the property tax appeal in a fair market value proceeding under the deficiency statute. The Court’s reliance on the lack of an express adoption of the valuation principle, highest and best use, is puzzling. A property’s available uses or reasonably probable uses, at the time, drive its value in the market.

What the Court was possibly trying to reach was a standard that a trial court, which is tasked with determining value as of the date of the trustee’s sale, is not bound by a particular method to determine value. For example, the court explained that a judge may properly consider “various factors appearing in the testimony in any combination which is reasonable.” Whether it realized it or not, highest and best use will inevitably be a part of a proper analysis.

The use of valuation methods in eminent domain proceedings or deficiency actions requires experience with valuation theories and evidence laws. If you or anyone you know may be facing eminent domain or a valuation of real property, I urge you to meet with an experienced Arizona eminent domain attorney that can help you understand your options. Protect your property rights by calling (480)-428-3572 to set up a consultation.

What is a Counter-Offer?

If you have been faced with eminent domain and the government has proposed a monetary offer for a property in your ownership, it is crucial that you precisely evaluate their offer before accepting it. If the offer seems even slightly less than you would have expected, making a counter-offer is something to seriously consider. In most cases, property owners will receive greater compensation after filing a claim against the condemning agency’s offer in an eminent domain proceeding. Keep in mind: appraisers often differ in their opinions of a property’s value by thousands or tens of thousands of dollars, so hiring a professional appraiser, such as an eminent domain attorney, is essential to your case.

Applying to the court for an order to increase the amount of the deposit is easier than you might think and will most likely yield you with a much higher cash amount for your property. An experienced Arizona eminent domain attorney can help you draft your claim by considering your property’s true value while comparing it to how much your property may be worth to the government.

Call (480)-428-3572 today for a consultation with me, Anthony Misseldine. Depending on your case, I may be able to get you a much higher compensation for your property than the government is currently offering you.

Arizona Property Rights

In 1998 in the city of New London, Connecticut, a plant was built by the drug company, Pfizer. Officials of the City attempted to purchase 115 residential homes to turn around and sell to commercial developers. When fifteen residents resisted, the City turned to its power of eminent domain to take the land.  One resident, Susette Kelo, opposed the taking through a legal challenge. The case ended up before the U.S. Supreme Court, which ruled in favor of the taking by the City of New London. The Court’s decision sparked a nationwide debate, fueled in part by disserting comments in the opinion.  Justice Clarence Thomas accused the verdict of violating the Fifth Amendment’s “public use” standard because property was forcibly transferred from one private owner to another.

Many states in the US, including Arizona, reacted strongly to this ruling and amended their property statutes. The Private Property Rights Protection Acts were instituted as an effort to prevent another situation, such as the Kelo vs. New London case, from happening in Arizona. Eminent domain rulings in Arizona require a judicial determination ensuring that the claimed usage of the land will indeed be “public.”

If you think you may be in danger of eminent domain violations against your property, contact an experienced Arizona eminent domain attorney immediately. Call (480)-428-3572 for a consultation, and I can help you with any questions or concerns you have about your Arizona Property Rights.

Bailey’s Brake Shop: Could this Happen Again in Arizona?

As construction on the Mesa light-rail extension project is set to begin in 2013, many private businesses and property owners will be facing efforts by the City to acquire all or part of the impacted properties. The 3.1 mile extension into downtown Mesa is clearly a public project, thus appropriate for using the power of eminent domain to acquire the land needed for the project from private owners. This is in contrast to the City’s attempts several years ago to improve the downtown corridor.

In April of 2002, an Arizona judge’s ruling allowed the City to seize Bailey’s Brake Shop, a family-owned business, operating in the same location for over 30 years. The City wanted to sell Randy Bailey’s property to an Ace Hardware store, failing to acknowledge that it is against the Constitution to take property from one private owner and give it to another private owner. However, the City argued that they were seizing the property for redevelopment on the claim that the property was blighted and that redevelopment of the property was necessary in the interest of public welfare.

The Institute for Justice Arizona Chapter represented Randy Bailey in an appeal, and on October 1, 2003, the Arizona Court of Appeals ruled against the City of Mesa’s use of eminent domain, protecting Bailey’s Brake Shop from seizure. The Arizona Court of Appeals overturned the earlier decision, stating that the taking was not proper. The opinion went on to outline a series of questions to be considered when evaluating if a taking is truly for a public purpose. Accordingly, cases like Bailey’s Brake Shop are not likely, but the potential for abuse still remains.

The use of eminent domain by local governments is becoming more common and less lawful throughout the United States. If you or anyone you know may be facing eminent domain, I urge you to meet with an experienced Arizona eminent domain attorney that can help you understand your options. Protect your property rights as an American citizen by calling (480)-428-3572 to set up a consultation.

An End to Some Local Mesa Favorites

Of the several locations set to undergo partial to full acquisition by the City of Mesa’s light-rail extension project, five of them are auto shops. MCJ’s Tires & Wheels, De Valle Motors, Mesa Muffler, Wilky’s Performance Center, and Gunnell’s Tire & Auto are among the businesses facing partial to full seizure. As the light-rail project in essence implies the promotion of public transportation, is it also strategically displacing downtown Mesa auto shops?

While one could easily argue this position, it’s doubtful that this is more than an unfortunate coincidence. Though it might seem suspicious that more than half of the properties preparing for 100% acquisition are in the automotive repair and service industry, it should be taken into consideration that these stores are all located on Main St. within a three-mile stretch.

Downtown Mesa will surely miss these long-standing businesses. Wilky’s Performance Shop has been in operation for several decades, and Gunnell’s Tire & Auto since 1953. As Theresa S. from Queen Creek writes in her Yelp review, Gunnell’s provides the “quickest service I’ve ever experienced for getting tires rotated and/or balanced.” While the light-rail is projected to bring great economic advancement to some areas of downtown, it signals the end of an era for some local favorites.

If you have been affected, or have received notice that your home or business will be affected by the light-rail extension project, I highly suggest that you contact an experienced Arizona eminent domain attorney. Call (480)-428-3572 to set up a consultation to better understand your rights as a property owner.

The Mesa Metro Business Assistance Program

The 3.1 mile light-rail extension set to begin in 2013 is expected to affect the numerous businesses along its route. The construction is going to make it very difficult, if not occasionally impossible, for consumers to access these businesses. While City officials are focusing on maximizing the economic impact that the extension will bring to downtown Mesa, it’s hard to say what the economic loss for local businesses will be in the meantime.

To help ease the inevitable struggles ahead, Metro Light Rail has developed a Metro Business Assistance Program aimed at keeping the affected businesses alive and thriving during the extension’s construction. The Program includes free signs and banners alerting customers of businesses open during construction, as well as a 24-hour hotline where questions or concerns can be directed. The Assistance Program is offering a variety of free marketing and promotional support to affected business, such as the Metro Max Rewards Program which offers discounts as incentives for customers to frequently visit the businesses along the construction route.

If you have been affected, or have received notice that your home or business will be affected by the light-rail extension project, I highly suggest that you contact an experienced Arizona eminent domain attorney. Call (480)-428-3572 to set up a consultation to better understand your rights as a property owner.