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Palmer v. City of Phoenix

Court of Appeals of Arizona, First Division

March 30, 2017

GAIL L. PALMER, et al., Plaintiffs/Appellants,
CITY OF PHOENIX, et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. LC2015-000477-001 The Honorable Dawn M. Bergin, Judge

          Timothy A. LaSota PLC, Phoenix By Timothy A. LaSota Counsel for Plaintiffs/Appellants

          Schern Richardson Finter Decker PLC, Mesa By Michael A. Schern, Adam B. Decker Counsel for Defendant/Appellee Grand Canyon University

          Phoenix City Attorney's Office, Phoenix By Paul M. Li Counsel for Defendant/Appellee City of Phoenix

          Judge Patricia K. Norris delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


          NORRIS, Judge

         ¶1 In 2015, Grand Canyon University ("GCU") asked the City of Phoenix to abandon a roadway near its campus that had been dedicated to the City for the public's use in 1926 (the "1926 Dedication"). Over the objections of Plaintiffs/Appellants Gail L. Palmer, Janice M. Palmer, and Gary S. Perkins-Warinner (the "Landowners"), the City decided to conditionally abandon the roadway. On appeal, the Landowners argue the City's decision to conditionally abandon the roadway was contrary to the terms of the 1926 Dedication, state law, and the City Code, and, therefore, illegal. The Landowners also argue the abandonment method the City adopted-a public sale - violated state law and the City Code because the City "engineered" the sale to ensure that GCU would be the only bidder. We reject the Landowners' arguments and affirm the superior court's judgment in favor of the City and GCU.


         ¶2 In 2015, GCU submitted an "abandonment application" to the City's Planning and Development Department ("Department") and requested the City abandon part of West Colter Street, an east-west street, and part of a street that intersected West Colter Street, North 30th Drive, a north-south street (collectively, the "roadway"). GCU owned all the property abutting the roadway except for three parcels of property abutting West Colter Street, one owned by a third party not involved in this litigation, [1] and two neighboring parcels owned and used as rental properties by the Landowners (collectively, the "private property owners"). GCU proposed building two guard gates or booths, one on the eastern end of West Colter Street and one at the north end of North 30th Drive which would allow GCU to control access to all of the property abutting the roadway, whether owned by it or the private property owners.

         ¶3 The City received the roadway for the public's use through a recorded dedication in 1926 when the "Homeland" subdivision was platted. The 1926 Dedication recited the owners had:

caused the . . . property to be surveyed, subdivided and platted as shown hereon, which said premises so subdivided and platted shall hereafter be known as HOMELAND, and that the plat as shown hereon sets for the location, gives the number and dimensions of each lot and block and gives the name and width of roads, which said roads so shown are hereby dedicated to the use of the public.

(Emphasis added).

         ¶4 In July 2015, the City's Abandonment Hearing Officer conducted a public hearing on GCU's abandonment application. At the hearing, an attorney representing GCU explained GCU representatives had met with the Landowners and others to discuss the requested abandonment and GCU had agreed to several "stipulations" designed to address various access concerns they had raised. Accordingly, GCU's attorney informed the Hearing Officer, that, in addition to building the guard gates, GCU would: (1) build an "express/thru" lane so the private property owners and their renters, guests, invitees, and service providers (collectively, "related users") could bypass the guard gates; (2) maintain at its expense the roadway's pavement and sidewalks "commensurate with" public roadways in the City; (3) grant a permanent, unrestricted, recorded access easement to the private properties' owners for their benefit and the benefit of their related users; and (4) not restrict pedestrians from accessing or leaving Little Canyon Trail, a City maintained trail, at West Colter Street or North 30th Drive. Although GCU's original abandonment application had not expressly asked the City to convey title or fee ownership of the roadway to GCU, given GCU's willingness to agree to the stipulations, GCU clearly anticipated that, if the City approved the proposed abandonment, the City would convey the roadway to it.

         ¶5 The Landowners objected to the proposed abandonment at the hearing, criticizing, among other matters, GCU's presence in the area, GCU's treatment of them, GCU's students, and GCU's failure to obtain an environmental impact statement. Despite the Landowners' opposition, the Hearing Officer conditionally approved GCU's abandonment application, subject to GCU's compliance with and performance of the stipulations within 18 months. The Landowners and a third party appealed the Hearing Officer's decision to the Phoenix City Council.

         ¶6 City officials and Department staff then met with the appealing parties and representatives of GCU and discussed the proposed abandonment and the appealing parties' objections. Based on the discussions, the Department's Director submitted a memorandum to the City Council recommending approval of the proposed abandonment with modified and additional stipulations. The modified and additional stipulations concerned, in part, access issues and, in part, reflected that if the City abandoned the roadway, it would do so through a public sale which, under state law and the City Code, would allow anyone, not just GCU, to buy the roadway, subject to any stipulations imposed by the City. Accordingly, the Director explained the stipulations had been modified to "correctly portray that any purchaser of the abandonment area must comply with all or their portion of the stipulations prior to taking control of" the roadway.

         ¶7 Thus, by way of example, the modified stipulations required "[a]ny purchaser . . . [to] provide the private property owners along Colter Street . . . with a permanent, unrestricted, recorded access easement to their properties for the benefit of the owners and their invitees, guests and any service personnel to use the [express/thru] lane at all times." Similarly, the modified stipulations required "any purchaser . . . [to] maintain the [roadway's] existing pavement and sidewalk improvements in a condition commensurate with public roadways in the City of Phoenix, for so long as there remains any private properties (not owned by GCU) within [] the abandonment boundaries." And, the modified stipulations prohibited "[a]ny purchaser of any portion of the [roadway from restricting] movement of pedestrians utilizing Little Canyon Trail from accessing the trail at Colter Street or 30th Drive during hours of operation."

         ¶8 Subject to the modified and additional stipulations in the Director's memorandum ("the final stipulations"), in October 2015 the City Council unanimously, but conditionally, approved the proposed abandonment. The City Council's approval was ...

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