Testimony of Clint Bolick and Timothy Keller

INSTITUTE FOR JUSTICE/ARIZONA CHAPTER

ON HB 2487
ARIZONA HOUSE OF REPRESENTATIVES

It is an honor to testify in favor of H.B. 2487, which would strengthen the private property rights of all Arizonans against the abuse of one of government’s most sweeping powers, eminent domain; and would bring state statutes into harmony with our Constitution.

Article 2, section 17 of our Constitution provides the strongest protection for private property rights of any state in the nation, declaring categorically that "No private property shall be taken for private use." But in reality, local governments throughout the state are engage in the most casual practice of using eminent domain to take property from private owners to transfer it to more politically powerful ones, a sort of Robin Hood in reverse. They do so in the guise of "redevelopment." The pendulum has swung so far that today there is no real limit whatsoever on government’s power to take property.1

We are challenging one such instance in City of Mesa v. Bailey, where the city is attempting to take a family-owned brake shop and give it to a hardware store that wants to expand. The exercise of eminent domain could well destroy a business that has operated in Mesa for 31 years. Not only is the city acquiring and clearing the property for the developer, it is contributing two million dollars in subsidies. This is corporate welfare at its worst.

Because there are no real limits on eminent domain, the city does not even have to follow its own plan, which requires it to rehabilitate property before using the eminent domain powers. This practice is exacerbated by the Legislature’s decision in 1997 to allow cities to use eminent domain without a finding of slum and blight, for the more nebulous purpose of "eminent domain."

This bill would accomplish several important reforms:

1. It would restore the requirement of slum or blighted conditions as a prerequisite for the exercise of eminent domain.
2. To eliminate slum or blight as a pretense, it would require that 85 percent of the properties in a particular redevelopment area actually be blighted.
3. It would force cities to use less-destructive measures before resorting to eminent domain.
4. To remove the temptation to respond improperly to private interests, and to bring the statutes into harmony with the Constitution, it would forbid municipalities from selling or leasing property acquired through eminent domain to private parties for ten years.
5. It would terminate a slum or blight designation after five years, which is important because in some municipalities (such as the Fifth Avenue area in Scottsdale), the designation itself is causing slum and blight.
6. It would empower courts to review findings of slum or blight.
These provisions would allow local governments to use eminent domain for legitimate purposes in legitimate circumstances. Of course, they do not at all lmit government’s eminent domain powers with respect to public uses such as roads or schools.
Since filing the Bailey case, our phone has rung off the hook with calls from property owners whose homes or businesses are being taken for questionable purposes. This bill would strengthen the constitutional private property rights that are every Arizonan’s birthright.