By Cecilia Chan, GSN Managing Editor
A Maricopa County Superior Court judge has granted Gilbert’s seizure of businessman Marc Barlow’s property as it builds a five-deck public parking garage in the Heritage District.
“The burden to establish public use is on the Town of Gilbert,” Judge Bruce Cohen wrote last week. “The evidence presented overwhelmingly supports a determination of public use.”
Town Attorney Christopher Payne could not comment as the case was still ongoing. Barlow’s counter claim was still active and he can contest the town’s $145,000 appraised value for the land – which would mean a trial, according to Payne.
Barlow said he disagrees with the judge’s ruling, stating, “Our property has been damaged by this project and the litigation process will continue.”
The issue came to a head after the town initiated eminent domain proceedings on 755 square feet from the northeast portion of Barlow’s vacant property near Gilbert Road and Hearne Way to build a roundabout at the garage entrance for emergency vehicles.
Barlow contended the seizure would create accessibility issues for his property.
During a two-day hearing, Barlow’s attorney Dale Zeitlin argued the town’s $19.2 million garage, under construction since February, was being built to benefit a private developer, Common Bond Development Group, and was not for public use.
Common Bond purchased town-owned land in 2015 next to the garage and has exclusive use of 100 of the 600 parking spots, from 11 a.m.-11 p.m. daily.
Cohen said the garage was helping address the town’s need for 1,000 more parking spaces in the Heritage District. “The public access to the structure and availability of 500 net public parking spaces call for a finding of public use,” he wrote.
Cohen also found Common Bond wasn’t getting special treatment, noting the town has reserved the top floor of another nearby public parking garage for business owners and their employees to use for free while Common Bond will pay Gilbert $33,000 a year for its 100 spaces. The developer is currently building a 20,500-square-foot building to house tenant Culinary Dropout Restaurant.
Had Gilbert opted to build surface parking for approximately the same number of parking spaces required for the restaurant, there possibly could have been an argument about the constitutionality of the transaction if all the spaces were then limited in use to the restaurant’s customers, according to Cohen.
The judge also didn’t buy Zeitlin’s argument that Gilbert’s plan to convert Hearne Way into a one-way street with a drop-off area was actually a valet lane for the exclusive use of the restaurant and that it would render the public road into a private one.
The town’s plan for Hearne will remove five or roughly half of Barlow’s parking spots for his office building, which sits on property adjacent to his vacant lot.
“The Town of Gilbert has a legitimate need for creating this drop-off area as ride-sharing services have grown in popularity,” wrote Cohen, who heard during the hearing how Uber and Lyft drivers were stopping along Gilbert Road dropping off passengers and causing safety issues.
The judge also said there are no contacts that included a commitment for valet use and he refuted Zeitlin’s contention that the reconstruction of Hearne Way, which leads to the garage, would turn it into a private road for the restaurant.
Hearne now is a dead-end street and aside from drivers who mistakenly turn onto the road off of Gilbert Road, the only users are the tenants and customers at Barlow’s building, the judge said.
After the reconstruction, those same people will still have access to Hearne as will the restaurant’s patrons. Moreover, people also can find parking in the Heritage District that might be more accessible than the garage, he added.
Although Barlow will lose parking spaces as a result of Hearne’s reconstruction, he will also benefit from the garage parking since the structure is close to his building, the judge said.
It cannot be refuted, the judge noted, that some of the decisions made by Gilbert will benefit Common Bond and other town decisions may have been changed after the developer expressed concerns.
But Cohen wrote: “Best business practices call out for collaboration between the private and public sectors when developing property that is intended for use by the public.”
The judge also addressed Zeitlin’s claim of a “backroom deal” between the town and the developer. “It was not. While negotiations were not conducted in public hearings, which they never are, everything relating to the contracting for and development of the subject property was done within the light of day.”
The judge also acknowledged the town’s mistreatment of Barlow: “After hearing Mr. Barlow’s testimony, there is perhaps something left to be desired as to how each aspect of this development has been handled when impacting Mr. Barlow and his family.”