The appeal for The Hub housing development passed its first legal challenge Feb. 23 during a hearing in the Coconino County Superior Court. The Hub is a 591 bedroom off campus student housing project being constructed in Southside neighborhood. Pima County judge James Marner said the appeal merited a hearing.
The court also settled on a date to reconvene the hearing. Marner, who presided over the hearing, traveled from Pima County because all the Coconino County judges had excused themselves from being potential judges.
Within the courtroom, there was standing room only due to the large turnout. Many members of the public, along with city council members Jim McCarthy and Jamie Whelan, attended the hearing that lasted approximately an hour and a half.
Marner said that he let the case continue because of the constitutional right to due process but made it clear his decision was not a sign of how he could rule on the case in the future.
“Simply by denying the motion to dismiss, I am not [commenting on the case itself],” Marner said, adding that he did not feel comfortable throwing the case out. “The motion to dismiss basically stops the case before it starts.”
Construction of The Hub development will continue despite the hearing.
The plaintiff, a restaurant called Cottage Place, filed the complaint in September 2016 against the construction of the off campus student housing development, located near Mikes Pike street.
As the attorney representing Cottage Place, Whitney Cunningham, explained, the development is less than 300 feet from the plaintiff’s property.
They are bringing the lawsuit because they feel the development does not follow the city’s form based zoning code, under which it is being constructed and is unfit for the Southside neighborhood. Because of this, Cottage Place claims the development will negatively impact their business and the neighborhood.
“It will literally cast a shadow over Cottage Place’s property,” Cunningham said.
The developer of The Hub, Core Campus, and the city of Flagstaff sought to throw out the case claiming that Cottage Place had not adequately shown they had a right to bring a complaint to the court in the first place.
In order to bring a complaint, Arizona law states that the plaintiff must have legal standing, either by being effected by specific damages due to the construction of the building or be a “taxpayer.” In other words, a plaintiff must have skin in the game in order to bring a case.
The lawyer representing Core Campus, Cameron Artigue, said the plaintiffs had not met these specifications.
Artigue pointed to the damages claimed by the plaintiff and said the damages claimed were general as opposed to specific and did not have anything to do with the plaintiff.
“There is nothing that connects [the] grievances to Cottage Place,” Artigue said.
Artigue also said that despite calling themselves a taxpayer, Cottage Place had shown no evidence that they were.
Cunningham disagreed and said that whether the plaintiff was a taxpayer was not a debate. As a business and lease owner, Cunningham said that the Cottage Place pays taxes.
“[Cottage Place] as a matter of common sense [is] a taxpayer,” Cunningham said. “Under what articulation of facts is [the plaintiff] not a taxpayer?”
Cunningham also claimed that Core Campus was slow walking the hearing to have completed construction by the time the case ended. Artigue disputed this and in the end, all parties agreed that the court should get through this case as soon as possible.
Cottage Place hopes to reconvene as soon as mid-March but both the city’s attorney and the judge said they would not be ready for the hearing in such a short amount of time.
Instead, the court decided that the hearing will be reconvened April 21 and should last no more than four hours.
One limit to the speed at which the case will be heard is the fact that the judge, James Marner, does not live in Coconino County.
Despite not living in Flagstaff, Marner said he understood that this was a, “huge issue of great public concern.” He added that due to this, he would make himself as available as possible.
The decision was a victory for Marie Jones, the chair of a group that opposes The Hub called Stand Up For Flagstaff.
“I’m pleased about [the decision],” Jones said. “I’m just really looking forward to having the case and the appeal heard.”