Court Of Appeals of Arizona, Division Two, 2 CA-CV 2009-0186, Aug. 31, 2010: Attorney fees may not be awarded to a private landowner who prevails in a regulatory taking case pursuant to A.R.S. § 11-972(B). The court analyzed the statute and concluded that attorney fees may be awarded only in a physical taking matter and reviewed the differences between a physical taking and a regulatory taking. A mountain ridge dividing the northern portion of the privately-owned Dos Picos’s land from the southern portion was declared a “protected ridge” by the county, which meant a special use permit from Pima County was then required in order to develop it. The southern portion was surrounded by county parkland with no road access. Dos Picos sought a special use permit to build a road across the protected ridge in order to connect the northern and southern portions of its land, but Pima County denied its request. Eventually, Dos Picos sued for inverse condemnation, arguing the county’s actions constituted a governmental taking of private property to incorporate the private land into Tucson Mountain Park. The trial court agreed and awarded Dos Picos attorney fees in addition to compensation for the land value.
The text of the decision is available at http://www.apltwo.ct.state.az.us/Decisions/CV20090186%20Opinion.pdf.