Arizona Court of Appeals Division One holds that a homeowner is not entitled to severance/proximity damages if the State condemns positive and negative easements but does not take a portion of the homeowner’s parcel of land.

This case involved a homeowners’ association that held title to a parcel of land that included common areas for use by all homeowners.  Each of the homeowners had a positive and negative easement over the common areas, but no homeowner held title to the common areas.  The State filed a condemnation action to acquire the common areas and agreed to pay the homeowners’ association fair market value for the common areas.  The homeowners subsequently sought compensation for their loss of positive and negative easements, seeking proximity damages for noise, pollution, loss of view, and unsightliness.  The State conceded that the homeowners should receive compensation for lost value to their property, but argued the homeowners should not receive proximity damages.  The superior court awarded both proximity and valuation damages to the homeowners.

On appeal, the only dispute was over whether the homeowners could receive proximity damages.  The court focused its analysis on A.R.S. § 12-122(A)(2), which authorizes courts to award proximity damages “[i]f the property sought to be condemned constitutes only part of a larger parcel . . .”  The court applied this statute to the facts of the case, and held that the homeowners were not entitled to proximity damages because their easements did not constitute a “part of a larger parcel” under the terms of the statute. 

The court noted that this limitation damages might raise a federal or state constitutional issue, but did not address the issue because the parties did not brief it.

Judge Weinzweig authored the opinion, in which Judges Bailey and Campbell concurred.  

Posted by: John Bullock