Goldwater Institute Appeals Ruling in Mesa Impact Fees Case

Goldwater Institute News Release
July 16, 2009

Phoenix–The Goldwater Institute announced today that it is seeking an appeal in its legal challenge against Mesa’s cultural facilities impact fee. Maricopa County Superior Court Judge Douglas Rayes gave the Goldwater Institute an opening-round defeat in its challenge to the fee, which is imposed on all new homes. Cities have limited authority to impose impact fees so that development pays its own way. However, Mesa used the fees to pay for museums and performing arts centers, rather than the necessary public services strained by the impact of new development.

“No matter how desirable, cultural facilities are not a ‘necessary’ public service as required by the impact fee statute,” said Clint Bolick, Director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “The City did not show that new development created a need for new cultural facilities.”

Despite that, Judge Rayes deferred to the City’s judgment. The Goldwater Institute believes it has a very strong and factual case, and after consultation with its client, the Home Builders Association of Central Arizona, decided to appeal the ruling.

More information about the case can be found at The Goldwater Institute is a nonprofit public policy research and litigation organization whose work is made possible by the generosity of its supporters.


  1. Another blog pointed out the question, why is the Goldwater Institute carrying the water for the Homebuilders? I can understand the mom and pop tattoo parlor in Tempe but can’t the Homebuilders sue themselves?
    Also, in your fight for relevance- appealing every case you lose so you can end up at the Supreme Court doesn’t necessarily help your image. It’s beginning to look petty at times.

  2. Conservative does not mean Republican says

    It’s true that Goldwater usually sues on behalf of the “little guy” in a lot of these constitutional cases. I guess they must of seen a great chance to win with the HBA case.

    I have to disagree with you on appealing the case, Roger. When Goldwater sued Phil Gordon over the CityNorth subsidy, they won on appeal. They had an excellent case, but the Superior Court justice just didn’t see it that way. I think a lot of Superior Court justices aren’t too eager to hand down controversial decisions that could be overturned by the Court of Appeals or the Supreme Court. And since a lot of Goldwater suits tend ruffle some people’s feathers, they’re going to have to appeal more often than not.

  3. The Judge addresses the claim Bolick is trying to make by stating that the law does not address what services are necessary so this is a decision cities need to make.

  4. Obviously, the judge is a friend of Carolyn Allen. She will vow that the arts and the foundation of our state. Thankfully, she will have a lot more time to contribute her own resources to the arts in another year.

    A museum or performing arts center is used as a matter of choice by a very small percentage of the citizens and is definitely not a “necessary public service.”

  5. Richard Wayne says

    Just another one of those unenumerated newly minted “rights” in the mold of health care and gay rights.

  6. Janelle,
    Since I have heard on here others argue even police and fire should be privatized, it would seems that ‘necessary’ public services are defined based on what communities decide. Oh, and only a small percentage of people make use of police or fire.

  7. Conservative does not mean Republican says


    I think reasonable people can come to the agreement that fire and police are necessary services in order to provide safety and protection to the community. While you argue that very few people use police, I would argue that we all use/benefit from police. Their very presence prevents crimes from being committed and therefore indirectly benefits all of us.

    Additionally, those same reasonable people can agree that funding for the arts is not “necessary.” While I enjoy the arts, the benefit they provide is individual and hardly critical to everyday life.

  8. Conservative does not mean Republican,
    I think people who support arts funding might as well make the claim that arts improve the quality of life of the whole community and impacts people in many ways. It is likely most people have contact with “arts” on a daily basis – but maybe not city sponsored arts.

    But again, the question is what does a community decide through its elected representatives. This is what the court decision hinges on.

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