City of Tucson v. Rickles, 2

• Decision Date: 31 August 1971
• Docket Number: No. 2,CA-CIV,2
• Citation: 15 Ariz.App. 244,488 P.2d 180
• Parties: CITY OF TUCSON, a municipal corporation, Appellant, v. Eugene C. RICKLES and Mildred Rickles, husband and wife, Appellees. 928.
• Court: Arizona Court of Appeals

Page 180

488 P.2d 180

15 Ariz.App. 244

CITY OF TUCSON, a municipal corporation, Appellant, v. Eugene C. RICKLES and Mildred Rickles, husband and wife, Appellees.

No. 2 CA-CIV 928.

Court of Appeals of Arizona, Division 2.

Aug. 31, 1971.

Rehearing Denied Sept. 24, 1971.

Review Granted Oct. 19, 1971.

Herbert E. Williams, City Atty., by J. Dan O'Neill, Asst. City Atty., Tucson, for appellant.

Stubbs & Stephens, P.C., by Robert C. Stubbs, Tucson, for appellees.

HOWARD, Judge.

This is an appeal by the City of Tucson, hereinafter referred to as the City, from a judgment entered in eminent domain action.

Appellees are the owners of a trailer park located on West Prince Road, Tucson, Arizona, known as Bermuda Gardens Mobile Home Court. In the before situation, property consisted of 85 trailer spaces. In addition to the trailer spaces there are improvements on the property consisting of a well, which supplied the water to all of the trailer park, a swimming pool, a recreation hall, an office building, a house, and two separate laundry facilities, each with drying yards, and four shuffle board courts. There were also roadways within the park.

The City took fifteen feet of the frontage along West Prince Road which consisted of 8,718 square feet. Included in the take were six trailer spaces, trees and shrubs.

The case was tried to the court on the issue of damages only. Judgment was entered in the landowners' favor in the sum of $15,600 for the land and improvements taken and $17,500 severance damages.

The City presents two questions to this court, to-wit: (1) In a partial taking under eminent domain, is it proper to measure the value of the part taken by a standard other than the value of the land taken and the value of the improvements located within a taking? (2) In an eminent domain action, is evidence of an improvement district assessment, and the amount and alleged defect thereof, properly admissible?

EVIDENCE OF THE IMPROVEMENT DISTRICT ASSESSMENT

It is the City's position that it is improper to introduce evidence regarding an improvement assessment levied against the remainder property in a trial for a partial taking under eminent domain.

In the case of Moschetti v. City of Tucson, 9 Ariz.App. 108, 449 P.2d 945 (1969) we stated, in dicta, that special assessments, as such, are not elements of damage in condemnation proceedings but that evidence as to the existence or nonexistence of a special assessment on the land remaining after a portion has been taken by eminent domain is admissible for any bearing it may have upon the after value of the property. While review was denied by our Supreme Court in the case of Moschetti v. City of Tucson, supra, such denial is not tantamount to affirmance. City of Tempe v. Del E. Webb Corp., 13 Ariz.App. 597, 480 P.2d 18 (1971). Our examination of this dicta in Moschetti v. City of Tucson, supra, indicates to us that the language in the dicta is unfortunate and we therefore exercise the same judicial surgery which we used in City of Tempe v. Del E. Webb. Corp., supra, to remove the infirm portions of that decision.

Although there are times when a special assessment may be considered in valuing the remainder of the landowner's property, this is not one of those situations. Local assessments or special taxes for the payment of the cost of certain kinds of public improvements commonly prevail and are generally sustained under the exercise of the power of taxation. They have no relation to the exercise of the power of eminent domain, and hence, constitutional provisions respecting this right have no application. In re Public Service Electric & Gas Co., 18 N.J.Super. 357, 87 A.2d 344 (1952). As everyone holds his property subject to the police power, everyone also holds his property subject to the taxation power of the state. Although in the case of Moschetti v. City of Tucson, supra, the court stated that the special assessment could not be considered as a special item of damages, yet, even allowing it to be considered in valuing the remainder accomplishes the same thing and it is a distinction without difference. The fallacy of allowing assessments to be taken into consideration in valuing the property in after situation, absent special situations which are hereinafter set forth, can be better understood by hypothesizing a street widening situation wherein the property owners on one side of the street have none of their property taken and the property owners on the other side of the street have ten feet of their property taken. Those property owners who have none of their property taken are still burdened with the payment of the assessments, whereas those who have the ten feet taken would be able, under the rule espoused in Moschetti v. City of Tucson, supra, to recoup their assessment and end up, perhaps, paying nothing for the assessment. The injustice of the situation is further aggravated by the fact that in improvement districts it is quite common that those persons who do not border on the improvement still must pay a proportionate but lower share of the assessment. These persons would still be burdened with the assessment on their lands whereas those whose property actually bordered on the improvement, part of which was taken, could conceivably end up paying nothing for the assessment. Such a situation is intolerable without even considering the fact that a rule such as that laid down in Moschetti v. City of Tucson, supra, could completely frustrate the taxing power of a municipality in street...