Coyote Blog

Unfortunately:

The Arizona Supreme Court today unanimously reversed an appellate court ruling on the CityNorth case, saying it erred when it deemed the city of Phoenix's $97 million subsidy of the shopping center unconstitutional.

I discussed this in great depth in a series of posts, including this one.  The purpose of the subsidy was to try to get Nordstrom's to move their planned store about 1 mile from a development planned in Scottsdale over the line to a development planned in Phoenix  (the public cover story was to provide parking for a park and ride).

Fortunately, the ruling seems to be more procedural than anything else, and seems to slam the door in the face of similar private subsidies in the future:

Indeed, in today's unanimous decision, penned by Chief Justice Andrew D. Hurwitz, the five Supreme Court judges say that indirect public benefits -- like, apparently, beating out Scottsdale for the sale tax from Bloomingdales -- aren't enough to justify a giveaway to a private party.

Previous courts who've held that, they say, have misread precedent.

"In short, although neither [of two Supreme Court precedents] held that indirect benefits enjoyed by a public agency as a result of buying something from a private entity constitute consideration, we understand how that notion might have been mistakenly inferred from language in our opinions," they say. Now that they've clarified, the justices seem to be saying, the appellate court must examine whether the direct benefit the city of Phoenix gets -- aka. those parking spaces -- is enough to justify the giveaway.

For the record, the Supreme Court suggests that the parking garage is not, likely, benefit enough to justify such a tax giveaway.

"We find it difficult to believe that the 3,180 parking places have a value anywhere near the payment potentially required under the Agreement," its opinion finds. "The Agreement therefore quite likely violates the Gift Clause."

Kudos to the Goldwater Institute for continuing to push this issue.

Phoenix's agreement to give a $100 million handout to a shopping mall development in north Phoenix was struck down as illegal.

A major economic-development agreement between Phoenix and the CityNorth development has been ruled unconstitutional, meaning the project may not grow into the once-envisioned second downtown on the city's north side.

The Arizona Court of Appeals said Tuesday that the $97.4 million agreement violates the gift clause of the Arizona Constitution, which prohibits governments from granting money or credit to private entities in most cases.

In 2007, the city agreed to give the developer half the sales-tax revenue from the site. The developer, among other provisions, agreed to denser construction and to provide free parking and special spaces for park-and-ride use.

Excellent news.  This handout was engineered in a fairly smart bit of rent-seeking on the developer's part.  There are two competing shopping mall development sites about a mile apart in a wealthy area along highway 101.  The two sites are close, but on different sides of the Scottsdale-Phoenix border, so the developers managed to get Phoenix to pony up tons of taxpayer swag out of fear that stores like Nordstrom would move to the Scottsdale development (more here).  The parking subsidy came in at around $30,000 per parking space, and the only public benefit was supposedly that other locals could use the lot, though there are no other structures not within this particular development in walking distance of the proposed lot.  Here is the enormous downside that Phoenix now faces for not being able to hand $100 million to the developers:

Representatives of the Thomas J. Klutznick Co. declined interviews but issued a prepared statement saying that, without the agreement, they will be forced to cut the density of the project.

Less density would mean fewer shops, restaurants, hotels and offices and fewer jobs, the statement said.

The company said a "less capital-intensive design" would include surface parking lots covering more than half the development. It also warned that the project will face delays.

Uh, okay.  I think I will survive.   Their problem is they wanted the taxpayer-funded garage so that they could convert surface lots in their plan to more buildings they could rent or sell.  Boohoo.  Either it makes economic sense, and they can pony up their own money, or not.  Speaking personally, fighting Christmas shopping traffic, I am just fine with lower density shopping.

The city of Phoenix's $97 million subsidy for the developers of a new Phoenix shopping mall has been ruled by a local judge as being "'undoubtedly' in the public interest."  Even weirder, the developers lawyers are so mad at having their largess questioned that they are demanding the Goldwater Institute pay them $600,000 in attorneys fees as punishment for even questioning whether funding private mall parking lots that would have been built anyway is really in the public interest.

The subsidy, which I described in more detail here, provides $97 million for the construction of a parking garage at a new mall in North Phoenix, with the only condition being that the mall owners provide free parking in the garage to the public.  I can think of only three reasons this would be in the public interest:

1.  Without the subsidy, the mall might not provide enough parking
2.  Without the subsidy, the mall might charge for parking
3.  The parking garage could serve other surrounding businesses or homes within walking distance

Now, some of you on the coasts may be confused about this, so let me give you one other piece of background.  There are hundreds of shopping malls in the Phoenix area, from local strip malls to huge mega-malls of the type in this case.  At least 99.9% of the parking at all of these malls has been paid for with private funds.   Every one of these has plenty of parking.  This might not be the case in Boston, where land costs are high, but here in Phoenix, land is relatively cheap and malls are plentiful -- If I can't find a parking space, I would just go to a different place to shop.

Further, do you know the total number of these spaces at mall in Phoenix that are not free?  Zero.  OK, there may be one mall downtown that charges money to park, but for any mall in the area in which this one is being constructed, it would be insane to charge to park.  There are just too many competitor malls with free parking.

Finally, as to #3, look at the satellite view here.  Enough said. 

So the city paid $97 million in return for nothing of value, or at least nothing of value that the mall owners would not have provided on their own out of their own self-interest.  The only thing that I can identify the $97 million bought was possibly influencing the decision of one store (Nordstrom's) to locate in this particular development rather than 1 mile away, over the city line in another development planned in the City of Scottsdale.

About the numbers:   I really can't get away without taking on this statement in the same article:

According to its developers, CityNorth is expected to generate $1.9 billion in annual economic activity

In 2005, the metro Phoenix area had a GDP of $160 billion dollar.  The retail component of this is about $12 billion.  So this one mall / real estate project in one small part of Phoenix, one of hundreds just like it all over town, will increase our city's GDP by over 1% and in particular increase the city's retail output by 16%.  Sure.  I really wish our local paper would be just a tiny bit more credulous about printing these numbers from promoter's press releases.

The City of Phoenix is subsidizing a mall developer to the tune of $100 million dollars.  Why?

Desperate to keep another Nordstrom store out of Scottsdale, the City
of Phoenix put together a $100 million incentive deal to lure the
upscale retailer to the new CityNorth development.

That picture emerged in Maricopa County Superior Court arguments Monday over the constitutionality of the package.

That deal bought a parking deck -- at $30,000 per parking spot.

You see, the developer and its allies in city hall were afraid that Nordstrom's might instead locate their new store waaaaayyyyy over in Scottsdale, probably at the shopping development getting started ... about a mile away and all of one exit further down loop 101, as show below or here.

Here is the gist of it:

At issue in the lawsuit is an agreement between the developers
of CityNorth and the city of Phoenix that enables the developers,
Related Urban Development and the Thomas J. Klutznick Co., to retain
half of the project's sales taxes in exchange for free public parking
spaces in a parking garage. The agreement goes for 11 years or $97.4
million, whichever occurs first.

Now, those of you who are from New York or Boston may be saying -- Hmm, free public parking.  Thats a good deal.  Well, in Phoenix, its absurd.  All the mall parking is free.  All the mall parking garages are free.  Every mall around these two locations provide free parking and parking garages.  In fact, a mall developer would get run out of town on a rail in north Scottsdale or Phoenix for even uttering the words "paid parking."  People freak out around here if the valet parking is not free.  Further, the city is trying to somehow portray that the parking is a useful asset for the community at large.  Look at the Phoenix site above.  Do you see a lot of stuff in the surrounding acres that is demanding a lot of parking?

Effectively, this is all a smoke screen for the city giving a $100 million handout to developers to build something, ie free parking, they already had to build.  And the incremental sales revenue argument is absurd.  All the wealthy Scottsdale folks who want to shop at Nordstrom's are already doing so, or are shopping at nearby Desert Ridge.  Only the worst sort of analysis would show incremental sales from this location - all it will do is shift sales around a bit.

I am reminded of my previous post on the subsidization of business relocations as a prisoners dilemma problem.