Court sides with schools in road condemnation case

PHOENIX — School district boards are entitled to condemn property for roads leading to their buildings despite the lack of specific authority under state law, the Arizona Court of Appeals ruled Tuesday.

The La Paloma Property Owners Association had argued that Catalina Foothills Unified School District had no right to take control of a private road in the gated community to build a new vehicle entrance for the school. Attorney Lawrence Schubart said that right is limited to cities, counties and towns.

Appellate Judge Diane Johnsen acknowledged the statute says schools can condemn property for “buildings and grounds.”

But Johnsen, writing for the unanimous three-judge panel in a dispute going back decades, said that lack of express authority does not end the matter.

She said the law also permits condemnations when there is a “necessary implication.” And Johnsen said that’s the case here.

“A school district’s power to condemn property for use as buildings or grounds necessarily must include the power to condemn property to create access to school buildings and grounds,” Johnsen wrote.

She said that power is not absolute.

For example, Johnsen said, a school board could not vote to condemn private land to construct a street unconnected with any district property. But when it’s as an entry way to a school, as is the case here, the district does not need express legal authorization.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

And Johnsen said it’s irrelevant that there already was vehicular access to the school campus.

The legal spat surrounds the Valley View Early Learning Center on East Sunrise Drive near East Skyline Drive.

The district’s governing board determined that vehicular access to the school via Campo Abierto was necessary for safety reasons, she wrote, saying courts should not overturn such a conclusion “in the absence of fraud or arbitrary and capricious conduct.”

In 1994, in acquiring the property from the developer, the district agreed that vehicles would have to enter and leave the school property from either Sunrise Drive or Skyline Drive, but not from Campo Abierto, which leads to the gated subdivision. Only pedestrian traffic to and from the school would be allowed on Campo Abierto, which was maintained as a private road by the homeowners association and used by residents to get in and out of the subdivision.

In an earlier ruling, a different appellate court panel rejected the district’s contention it could use Campo Abierto for vehicles to access the school. That led to the decision by the district to condemn the already-existing portion of Campo Abierto, from Sunrise to the subdivision’s guard house, and build a new vehicle access to the school there.

Schubart said the move damaged the property owners who use the same road, creating additional heavy traffic at certain times of the day. He said the road was engineered solely to deal with traffic to and from the gated subdivision.

“They created a less safe access for the homeowners,” Schubart said. “There have been five accidents where before no accidents had ever occurred.”

The appellate court rejected a separate argument that the school district had not obtained required approval to condemn the road. The judges pointed to a 2004 bond election authorizing the board to acquire property and spend money “for a new preschool facility.”