The Gilbert Town Council voted this week to continue a costly two-year legal battle to obtain county island property for widening Higley Road north of Pecos Road -a few hours before voting to raise the town sales tax a quarter-cent to help deal with a $14.7 million operating budget deficit.
Jim Torgeson, son-in-law of land owner Leni Cazden, told the council before a vote to take the matter to the state Court of Appeals that he found the idea of officials pursuing the case further after being ruled against twice "unfathomable," particularly given Gilbert'sfiscal condition.
"You're looking at spending more money, in this time of no money, on what is a foregone conclusion," Torgeson said.
Still, the council voted 5-2 to appeal a May 9 Maricopa County Superior Court decision in the case, with Mayor Steve Berman and Councilmember Linda Abbott voting against it. Several of those who voted "yes" said they hoped that a settlement could be reached in the long-running feud before the appeal was actually heard.
Councilman Don Skousen told Torgeson he would like to see it settled out of court, but "I understand our legal counsel has advised us to go ahead with this, and it's pretty hard to argue with the counsel we have to represent us."
Charles Ayers, the town's special counsel in the suit, was also involved in Phoenix's unsuccessful attempt to condemn county land for a nature preserve. The move was denied at the appeals court level and was denied review by the state Supreme Court the following year.
But Ayers said Thursday condemning land for a park versus a road are different processes, and different sections of Arizona state statutes apply to Cazden's property.
"Anyone who says that everything is going to be this way from here on out because of one case doesn't know how the law works," Ayers said.
Maricopa County Superior Court Judge Jeanne Garcia split the difference between the town and Cazden, but gave Gilbert only half of the 80-foot strip along Cazden's property officials say they need to build Higley to the town standards.
She said Gilbert has the rights to the eastern half because it's within the town limits, but not to the other 40 feet, which are in the county, as well as being in Cazden's yard. The move would take out a little more than a quarter-acre of her property, according to Garcia's ruling.
This followed a January 2008 ruling that the town did not have eminent domain rights over what's being called the "West 40" in Cazden's yard, but didn't settle the status of the "East 40" along Higley, which she had also claimed.
Torgeson has claimed that Gilbert has already spent tens of thousands of dollars litigating this case. Town Manager George Pettit said he couldn't quickly come up with the amount spent on the case because it spans multiple fiscal years, but the money is coming from voter-approved street bonds. This money can't go into the general fund that pays for most daily operations and salaries, which is where the $14.7 million shortfall is, Pettit said.
The appeal is expected to cost another $15,000, which will come out of the $18.7 million in capital projects funds Gilbert has set aside to widen streets that narrow as they run past county islands.
The town's legal right to condemn county island property is the most fundamental of the numerous disagreements between the town and Cazden which were aired during the meeting.
Cazden's family thinks she's being lowballed on price, and doesn't think the town needs any part of the West 40 to widen the road itself. She argues the town wants the land for landscaping standards which don't have any place for the pines and cottonwoods in her yard, up to 45 feet high.
"Let's just deal with this so it won't affect safety, but don't put it on me to match Gilbert's aesthetics," she said.
Pettit responds that the town needs all of the West 40 to relocate utilities and irrigation canals that would be affected by the road widening. The work would also include widening sidewalks seen in many developer-funded Gilbert streetscapes: "The plan is to build a sidewalk next to the curb with streetlights behind it."
Cazden, a 10-year resident who turns 65 next month, said on Friday she is still hopeful an out-of-court deal can be struck to end the protracted battle.
