No eminent domain for Tempe: East Valley (AZ) Tribune, 11/30/05

By Garin Groff

The Arizona Supreme Court on Tuesday set back Tempe’s efforts to build a massive shopping center through condemnation.

The high court decided not to consider Tempe’s request to overturn an eminent domain case that stands in the way of Tempe Marketplace.

Several property owners have refused to sell land needed for the project and the city has tried to force them to sell through eminent domain.

Private property advocates said the decision is a big win.

"I’m just thrilled," said Del Sturman, a spokesman for Desert Composites, one of the remaining holdouts. "It’s solidifying that private property rights are still very important. And they’re more important than a shopping center and they’re more important than some one else’s profit motive."

Miravista Holdings and Vestar Development Co. control all but 28 acres of the 120-acre project. The city has said the scattered industrial lots are essential to finishing the project and cleaning up environmental hazards.

Tempe Mayor Hugh Hallman said Tuesday it was too early to know what’s going to happen next.

The decision doesn’t necessarily kill Marketplace — or the possibility Tempe could use eminent domain. The city can still turn to the Arizona Court of Appeals, though that’s the court that issued the ruling Tempe wants to overturn.

Tuesday’s decision will create even more heartburn over eminent domain, said David Merkel, who represents the League of Arizona Cities and Towns.

Because the court didn’t uphold or strike down eminent domain — it merely declined to hear the matter — cities will remain confused over when it’s OK to seize land for redevelopment.

"I wanted to hear the Supreme Court say who was right and who was wrong and they decided not to do that," said Merkel, who has sided with Tempe. The court did not say why it declined to take the case.

Tempe wanted the court to overturn the 2003 Randy Bailey eminent domain case — a landmark ruling for redevelopment projects in Arizona. In that case, the Arizona Court of Appeals said Mesa could not force brake shop owner Randy Bailey off his land and transfer it to a hardware store owner.

The court said the private landowner was receiving a substantial benefit while the public was receiving a relatively small one, which is not the intent of eminent domain.

That case has confused cities because it conflicted with previous Arizona Supreme Court rulings about condemning land for redevelopment, Merkel said.

Tempe argued the public would benefit substantially because the Marketplace would clean up an environmental mess left by years of industrial use. In the process, Vestar Development will build the shopping center and make a profit.

The city argues the developer’s role is essential to help pay for important benefits — cleaning up former landfills, getting rid of potentially explosive methane gas and demolishing unsafe buildings.

The Arizona Court of Appeals ruled Sept. 13 that the city’s attempted condemnation did not meet the standards for public use.

The remaining landowners question the benefit of seizing their land to build a shopping center. They say the city has exaggerated the supposed hazards and insist Tempe doesn’t need to take every property to clean up the area.

Tempe should instead negotiate with property owners for what they feel is a fair price or change its redevelopment plans, said Tim Keller of the Institute for Justice.

The organization has helped landowners in eminent domain cases.

Property owners said they hope the Supreme Court refusal will make Tempe give up eminent domain.

"The Supreme Court has sent a real strong message to the city that they don’t have a case," Sturman said. "We’d like them to go away and leave us alone because we’re tired of being hassled."

East Valley Tribune: www.eastvalleytribune.com