A new state law could force the Tempe City Council to vote at least one more time before condemning private property needed for the planned $200 million Tempe Marketplace.
Before local governments can take private property for development, state law requires they pass a resolution by a super-majority showing that the land is critical for the planned project.
Tim Keller, executive director for Arizona’s Institute for Justice chapter, said the city has not done that.
"In my opinion, the City Council will have to make a separate vote before they can use eminent domain," he said.
"No city is above the law," Keller said.
If the city pushes forward, Keller said Tempe would be violating an Arizona law that went into effect last year.
The institute, a Washington, D.C.-based law firm, successfully defended brake shop owner Randy Bailey against Mesa’s attempt to take his land and give it to another local businessman to build a hardware store.
In the past, Keller has said the institute could step in to defend the holdouts under the right conditions.
Keller said he will continue to monitor the situation, but has not committed to taking any legal action.
Developers Miravista Holdings and Vestar are attempting to assemble nearly 90 parcels of property near Rio Salado Parkway and McClintock Drive.
Marlene Pontrelli, an attorney for the city, said her office will make sure Tempe has met the state’s requirements before moving forward.
The city has been preparing to mail nearly 20 final notices to landowners who have not sold their property to the developers.
The notices, which are being reviewed by the city attorney’s office, would give the holdouts seven days to respond before condemnation proceedings could begin.
There was no plan for the City Council to make a separate vote regarding the necessity of the properties.
Sen. Jay Tibshraeny, R-Chandler, one of the state lawmakers who worked on the eminent domain bill, said they wanted the provision to add more teeth to the law.
"Basically we wanted to put more of the burden of proof on the cities to ensure that eminent domain was being used as a last resort and people’s private property rights were not being violated," Tibshraeny said.
In April, the previous Tempe City Council unanimously voted to use eminent domain if the developers could not cut private deals with the property owners.
"As policymakers, part of our job is to abide by the law and I for one will look to the city attorney and her counsel to ensure that we do so," said Tempe Mayor Hugh Hallman.
He was not on the council that authorized the use of eminent domain.
Hut Hutson, the other new member of the council, said the city should move forward with condemnation.
He added that he generally is opposed to using eminent domain, but said he backs it in this case because of environmental concerns.
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