Tempe Property Owners Score Victory Over Eminent Domain Abuse

WEB RELEASE: October 27, 2005
CONTACT: Tim Keller at (480) 557-8300
John Kramer at (703) 682-9320

[Private Property]

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Phoenix, Ariz.—Arizona courts continue their trend of protecting private property rights, today finding for property owners and against the City of Tempe’s attempt to abuse its power of eminent domain.  In the wake of an infamous U.S. Supreme Court decision shifting the responsibility of protecting property rights to the states, Arizona’s state judiciary stepped up and told cities in no uncertain terms that private property in Arizona may not be taken for a private use.

“The Judge saw through the smoke and mirrors to the heart of the issue,” declared Tim Keller, executive director of the Institute for Justice Arizona Chapter (IJ-AZ).  While the Institute for Justice Arizona Chapter did not represent the property owners, they served as part of the property owners’ defense litigation team.  “He understood this project was driven by private interests and not by anything related to a public use.  In Arizona, our Courts respect our constitutional requirement that private property ‘may not be taken for private use.’”

“We applaud the effort of the attorneys who represented these property owners,” Keller said.  “They have strengthened protection for property owners across the state and should be commended.”

The City of Tempe sought to condemn private property in the McClintock/Rio Salado Redevelopment Area so that the City could ultimately turn the land over to private developer Miravista Holdings in order to build a 1.3 million-square-foot retail center known as Tempe Marketplace.  Tempe claimed that it needed to condemn the land in order to address some environmental conditions present in the redevelopment area.  Judge Kenneth Fields saw through the City’s asserted justification, recognizing it as a pretext for the opportunity to make a private-to-private land transfer, something the Arizona Constitution does not allow.

Among his findings, Judge Fields wrote that:

• “The property will be used for private commercial use, a retail shopping complex.”
• “The private parties owning the property ultimately will use it for private profit purposes.”
• “No needed public services will be provided by the end use of the property.”
• “The City of Tempe, the condemning authority, will exercise only that control it has over other privately owned property within its borders.”
• “There are no anticipated public uses of the property.”
• “The funds for the redevelopment project are almost exclusively private.”
• “Private parties appear to be gaining more financially by the taking of the property than the public.”
• “The private developer Miravista Holdings and its principals are the driving forces behind this project not the Plaintiff, City of Tempe.”
• “Profit, not public improvement, is the motivating force for this redevelopment.”
• “The plaintiff wants to improve the ‘appearance’ of the property within the City of Tempe by removing any heavy industrial activity outside its municipal boundaries.”
• “There are some public health and safety issues involved in the taking.  The Court refers to the need to mitigate the methane gas concentrations, improve fire protection and resolve the soil subsidence problem.  These public safety concerns can be resolved by the exercise of the police powers of the City without taking the property in issue.  The only health assessment of the area in question does not support the plaintiff’s position.”
• “The property being sought does not appear to be a true ‘slum’ since the owners are providing legitimate and legal commercial services.  The conditions that the plaintiff feels threaten the public safety can readily be addressed by exercise of its police powers without resort to taking private property.”

The Institute for Justice Arizona Chapter successfully defended Mesa brake shop owner Randy Bailey in 2002 when the City of Mesa attempted to take his property and hand it over to an Ace Hardware Store.  That case made its way to the Arizona Court of Appeals, which ruled in favor of Bailey, determining that Mesa was attempting a private-to-private transfer of property contrary to the Arizona Constitution.  Judge Fields’ decision today relied on the Bailey decision in determining that Tempe also failed to meet the required “public use” test.

“It’s a great day for private property rights in the state of Arizona,” noted Jennifer Barnett, staff attorney at the IJ-AZ.  “Three years ago, we were able to protect Randy Bailey’s property when the City of Mesa tried to take it, and our work in that case has provided the Tempe property owners protection from that City’s attempt to take their property.”