Eminent domain barriers proposed: East Valley (Mesa AZ) Tribune, 1/4/06

By Howard Fischer

An East Valley lawmaker hopes to throw more roadblocks in the path of cities that want to use eminent domain.

And Rep. Chuck Gray, RMesa, wants quick action. He already has proposals scheduled for a hearing — and vote — by his committee this Monday.

Gray proposes:
  • Property owners be entitled to a jury trial to decide whether seizing their property is really for a legitimate public purpose. Now, a judge solely decides if the action is legal.
  • Municipalities must prove to the court the land is needed for a true public purpose. Current law presumes government is acting legally, forcing the property owner to demonstrate otherwise.
  • Legal fees for landowners when they challenge property seizure to give their land to someone else.
  • City councils be blocked from discussing the matters behind closed doors.

The bills will get a fight from municipalities.

"They would make condemnations for economic development purposes almost impossible," said Mary Okoye, lobbyist for Tucson.

Gray — chairman of the House Committee on Federal Mandates and States Rights — is crafting an even more comprehensive measure to bar municipalities from taking one person’s property and giving it to another, no matter what the reason.

Kevin Adam, lobbyist for the League of Arizona Cities and Towns, said that could undermine urban renewal projects.

Plans often call for replacing what is on the property with hotels, shopping and other commercial development.

"Are you going to cripple the ability of cities and towns to redevelop and address slum and blight, particularly in urban areas that are undergoing significant decay?" he asked.

Gray countered that not even urban blight gives the government the right to take one person’s property and give it to someone else.

He said cities can use nuisance laws to force landowners to bring the buildings up to code.

"But to take that property away from them and then give it to another person because of the tax revenues it might bring the city has nothing to do with the blight itself, other than as a cover to take the property," Gray said.

Adam said ordering property owners to clean up or close down is not a solution to urban blight.

"I suppose you could shut them down and board up that business, that home," he said.

"Basically, you have an unoccupied building which is a potential for additional crime."

The U.S. Supreme Court ruled last year that cities can take private property and turn the land over to another private developer. The justices said increased tax revenue and new jobs were enough to qualify the action as a taking for "public purpose."

Arizona has a more restrictive constitutional provision which bars taking private property for private purposes. And Arizona judges have twice rejected efforts by cities — Tempe and Mesa — to take land to give to new private businesses as part of municipal redevelopment projects.

But Gray said cities "always see new angles and new ways to twist the laws."

In Tempe, the city tried to use eminent domain to force industrial businesses off their property to build the planned Tempe Marketplace. Several property owners sued successfully to block condemnation.

In the Mesa case, judges said Mesa could not force brake shop owner Randy Bailey off his land and transfer it to a hardware store owner.

East Valley Tribune: www.eastvalleytribune.com