Activists out of Tempe land fight — East Valley (AZ) Tribune, 1/5/05

By Dennis Welch

The Institute for Justice will not defend a group of Tempe landowners fighting the city’s attempts to take their property for a planned $200 million shopping center.

Tim Keller, executive director for the institute’s Arizona chapter, said a number of other high-profile cases throughout the country has stressed its financial resources.

The institute expects two of its cases to go before the U.S. Supreme Court this year, which demands a considerable amount of time and money, Keller said. One case involves a New London, Conn., woman fighting municipal attempts to take her business, which could have broad implications for property rights nationally.

He said the institute has pledged to continue supporting the Tempe holdouts, but advised them to hire private lawyers.

"There is no doubt in my mind or the institute’s mind that this is an abuse of eminent domain," Keller said.

The Tempe City Council will vote Thursday on a resolution calling for the condemnation of more than 30 properties needed to build the proposed Tempe Marketplace. The resolution must pass by a super majority.

The Washington, D.C.-based law firm successfully defended Mesa business owner Randy Bailey against that city’s attempts to take his brake shop for economic development.

Supporters of the proposed mall have said the project differs from the Bailey case because it offers a public benefit.

Brad Wilde, president of Miravista Holdings, said building Marketplace will rid the community of a slum and blighted area and clean up potentially lethal environmental contamination.

"I want to give the people of Tempe a place they can go to and be proud of," Wilde said. "I first became intrigued with the notion of helping to clean up a slum and blighted area," he added.

A recent environmental study by Brown and Caldwell, a major environmental engineering firm, found hazardous waste — including methane gas — on a number of properties.

Wilde estimates that he has spent nearly $30 million to buy property and relocate businesses in the area. His company had set aside more than $42 million for land acquisition, according to city documents.

Opponents of the planned shopping center have said it fails to meet the test for condemnation because it does not deliver a public use such as a road, a government building or a hospital.

"This is being done for profit, not for the environment," said Del Sturman, part-owner of a machine shop facing condemnation. Although the institute will not take the case, Sturman said he plans to continue fighting the city.

The city could move forward with eminent domain proceedings even if the council votes down the proposed resolution on Thursday, said City Attorney Marlene Pontrelli.

The council passed a previous resolution authorizing condemnation in April, possibly committing the city to use eminent domain.

According to a development agreement with Miravista Holdings and Vestar, the city is contractually obligated to condemn once a resolution has been passed by the council.

The city called for the council to pass an additional resolution on Thursday to ensure that they were in compliance with state statute.

"It’s troubling to have had our hands tied by a prior council action," said Tempe Mayor Hugh Hallman, who took office after the April vote. "Now we’re faced with making a vote that some view as meaningless."

Hallman said he had been struggling to decide which way he will vote, saying this is one of the most difficult decision that City Council is asked to make.

Council members Pam Goronkin and Hut Hutson have said they support redeveloping the area. Likewise, Vice Mayor Mark Mitchell has said he does not expect the council to vote differently.

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