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legalgems
legalgems, Arbitrator
Category: Real Estate Law
Satisfied Customers: 8064
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We have a home in Arizona in a community that has heavy

Customer Question

We have a home in Arizona in a community that has heavy restrictions on moving a cactus or disrupting the desert on or near your own property. The mountain and land directly across from us (100 yards) was originally zoned for single family homes. Out of nowhere, Toll Brothers purchased the land, made a deal with the HOA and the City of Fountain Hills to build a complex of 60 condos. In a city that does not allow desert disruption outside of a small envelope, Toll Brothers took 30 feet off of the mountain, scraped the land bare, and will construct the 60 condos. Those of us across the fairway from this mess have been disrupted by dynamite explosions, terrible dirt and dust accumulations, and now falling home values. Our home has been on the market for over 1 year during the excavation and no buyer wants to consider purchase until they can see what will be built on the now barron land. The project has a 4 year timeline with approx. 16 units built per year. Does a lawsuit against the city, HOA, and Toll Brothers have any merit?
Submitted: 3 months ago.
Category: Real Estate Law
Expert:  FamilyAttorney replied 3 months ago.

Hello and thanks for using Just Answer. I’m a licensed attorney with 36 years’ experience in family law, appeals, landlord-tenant, and other types of law. I look forward to helping you today.

Please note:This is general information and not legal advice. No specific course of action is proposed, and no attorney-client relationship is formed. This is for educational purposes only.

Also – I will be typing my answer for you so I’ll be back in a few minutes.

Expert:  legalgems replied 3 months ago.

Did they have permission from the city and the HOA for the project?

Customer: replied 3 months ago.
I assume so. However, this looks like a play from the city to get tax revenue versus holding Toll Brothers to the same standard as any other homeowner. While it may work for them, it disrupts the sale of homes in our neighborhood and somehow allowed them to get by
Expert:  legalgems replied 3 months ago.

Unfortunately if it was authorized it is permitted; one could sue if they could prove that there was some type of fraud/illegal conduct, such as personal gain by a city official. But the courts have been very expansive in this area, even allowing the government to transfer land from one private party to another under the eminent demain theory. This expansion was seen in Kelo v. City of New London, a 2005 case (citation is 545 US 469) decided by the Supreme Court which held that for purposes of economic development, land can be transferred from one private owner to another due to the public policy considerations (thus "public use") which encourages community development and the resulting economic benefits. Thus it is permitted under the 5th Amendment's Takings Clause.

This is a case of big government at play.

I am sorry I could not find contrary law but I have a moral duty to provide accurate information.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  legalgems replied 3 months ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.
Thanks!

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