High court ruling spurs bills curtailing eminent domain: Tucson Citizen, 1/17/06

By David Pittman

In one of the most controversial court decisions of our time, the U.S. Supreme Court ruled last June that cities and towns can take people's property and give it to private developers.

In response to that 5-4 decision in the case of Kelo v. New London, Conn., a spate of bills have surfaced at statehouses throughout the country, including in Arizona, to make it more difficult for local governments to seize private property.

One of those proposals is expected to be introduced at the Legislature this week by Rep. Chuck Gray, R-Mesa. The Institute for Justice, a nonprofit public interest law firm that represented homeowners in the Kelo case, helped Gray write those reforms. If passed by lawmakers, those eminent domain changes would be referred to Arizona voters for their approval.

Tim Keller, executive director of the Arizona chapter of the Institute, said the measure would make it harder for local governments to take property for slum clearance and redevelopment efforts.

"In Arizona, the definitions of 'slum' and 'blight' are so broad that virtually any neighborhood could qualify," he said. "All it takes for an area to be considered blighted is for it to have a 'diversity of ownership.' We want to ensure cities can condemn only properties that threaten human health or safety."

Keller said "other nebulous terms" would be clarified under the legislation. For instance, he said local governments can take property under eminent domain law because of "inadequate lot layout."

"What does that mean?" he asked. "That is very subjective."

In addition, the proposed legislation would ban the taking of property by government for private commercial development. It would also require governments to prove that seizing of property was done for a purely public use, rather than placing the burden of proof on private property owners.

However, a lobbyist for Arizona cities said state eminent domain reforms are unneeded.

"The Kelo case could not have happened here," Kevin Adam of the Arizona League of Cities and Towns told The Arizona Republic. "The Arizona Constitution is far more restrictive than the U.S. Constitution - and also more restrictive than what is allowed in Connecticut.

In Kelo, the Supreme Court ruled a local government could bulldoze homes and turn the land over to private developers to build a hotel, health club and offices.

Opponents of the decision contend it violates the Fifth Amendment to the U.S. Constitution, which prohibits the taking of property except for "public use," such as the building of a highway, bridge, post office or school.

However, the majority opinion, written by Justice John Paul Stevens and backed by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, said a private development could be considered a "public use" if it created jobs and resulted in greater tax revenue.

In a strongly worded dissent, Justice Sandra Day O'Connor said the ruling was tilted in favor of those with "disproportionate influence and power in the political process.

O'Connor - joined in her dissent by then-Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas - said there is nothing preventing governments "from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Keller predicted Arizona lawmakers would look favorably on eminent domain reforms.

"The Kelo decision is enormously unpopular," he said. "Some public opinion polls have shown 90 percent disapproval of the ruling. I would expect the bill we are backing will receive bipartisan support in the House and Senate."

Alabama, Delaware, Ohio and Texas have all recently passed new restrictions on public property seizures and the Institute for Justice claims as many as 40 state legislatures will consider such measures this year.

Tucson Citizen: www.tucsoncitizen.com