Tempe wants 'squatter' to pay cost of lost case

The city of Tempe won its land dispute with a man who claimed he owned property where his family had lived on for more than a century. Now the city wants him pay the attorneys who beat him.

Tempe has asked Steve Sussex to pay $27,646.40 in attorney’s fees in his case, which a Maricopa County Superior Court judge dismissed in October.

The battle was over an increasingly valuable parcel near Tempe’s growing downtown and its signature man-made lake. Sussex asserted that the land belonged to him under “squatters’ rights,” arguing that his family had openly lived on the land since 1892 and no one had taken action to kick them off.

He lost that argument. A judge ruled that squatters’ rights do not apply to city property.

It was the second loss for Sussex in his decade-long battle to claim title to the 1.75 acre parcel on the northeast corner of First Street and Farmer Avenue.

The parcel is home to both an historic adobe structure, one of the oldest in the region, and an ever changing collection of lumber, furniture and vehicles in various states of operability. Sussex, a self-described “junker,” has said he allows friends to park vehicles on the land, including a graffiti-covered bus visible to passengers entering Tempe on the nearby light rail.

All the while, the land underneath Sussex was sold underneath him, in transactions involving the Arizona land department, a railroad and the city.

Sussex filed his lawsuit in May. In June, Tempe asked a Maricopa County Superior Court judge to toss out the case, saying that a private citizen cannot claim squatters’ rights, legally called "adverse possession," against a city.

Judge Patricia Starr granted that request in October. In her ruling, she stated that citizens can’t take over city land simply by squatting on it.

A month after that ruling, Tempe asked for attorneys’ fees. It claimed two city attorneys worked for close to 100 hours on the case. The city said an assistant city attorney’s work was valued at $275 an hour, while the city attorney’s work was valued at $278 an hour.

The city said Sussex owes Tempe residents the money because he filed a lawsuit he knew had no merit.

“The Plaintiffs had no legal standing, be it statutory law or case law and they were clearly aware of this fact and yet they still pursued the claim at a cost to the City,” reads the brief filed last week. “The Plaintiff’s claim was a frivolous claim.”

A city spokesman refused further comment on the matter.

Sussex’s attorney, Jack Wilenchik, in an e-mail, described the city's request for fees as "frivolous."

In a separate legal action, Wilenchik has asked to re-file the case against Tempe with additional facts.

Wilenchik, in a briefing filed this week, said that squatters’ rights should apply to the land because Tempe was acting as a private business and not a government entity when it acquired it.

The argument centers on the amount of debt Tempe took on to purchase the parcel from a railroad in 2002. Wilenchik argued that the amount of debt -- $550,000 – is beyond what is legally permissible for Arizona governments. Therefore, he wrote, the city should not be treated as a government body, but instead a private business.

Wilenchik’s brief imagined scenarios where city could act as business, using government protection as an advantage. He said cities could set up banks or holding companies.

“Or the city could work with commercial developers to acquire land that somebody’s house has been sitting on for 120 years, with the intent to hold it under the City’s name until they are ready to develop, and to enjoy the City’s immunity from adverse possession in the meantime,” Wilenchik wrote, “which is exactly what is alleged to be happening here.”

Tempe has been eyeing the property for decades. Thanks to its October court victory, the city can now claim clear title to half of the parcel – the eastern half containing the adobe house. The state of Arizona holds title to the western half of the property. It won its court case against Sussex in 2005.

It is not clear what other government agency intends to do with the land. Tempe, in the past, has said it would create a pedestrian and bicycle path that would go to the Tempe Town Lake.

Wilenchik said in a legal brief that he believed the land would become commercial.

“Defendant intended to purchase (the) adjacent parcel from the State and work with a developer to build retail, office and/or condominiums on the Property,” according to the court filing, “even though there is no shortage of such accommodations in the area.”