Host of bills seeks to curtail eminent domain: East Valley Tribune (Mesa AZ), 2/12/06

By Dennis Welch

Tempe businessman Del Sturman’s long and expensive fight against City Hall ended quietly last week when he gave them what they’d wanted for years — his property.

Since the beginning of this decade, the blue-collar machinist had fought to keep his land out of the hands of developers wanting to build a $200 million shopping center.

But finally, tapped out and burned out, Sturman said he could no longer continue and agreed on Wednesday to sell his land near Rio Salado Parkway and McClintock Drive.

While he can’t legally discuss the financial details, the deal makes him the last of a group of holdouts to sell their land, making way for the future Tempe Marketplace.

Unable to pay the continuing attorney’s fees as the city threatened to appeal the case up the judicial ladder, Sturman said he was left with no options.

“I have to get on with my life, now,” he said Friday afternoon. “I don’t like what happened, don’t like the outcome, but it’s time to move on.”

Ironically, as Sturman was reluctantly giving in, a host of eminent domain bills that could have helped him continue his legal challenge was working its way through the Arizona Legislature.

Specifically, one of the bills called for municipalities to pay all legal fees associated with eminent domain cases. Had that been the law of the land, Sturman said he would never have agreed to give up.

Cases such as Sturman’s as well as other high-profile eminent domain hearings over the past couple of years have helped fuel an increasing desire by state legislators to enact more laws regarding the issue.

So far in the 2006 session, lawmakers have filed nearly 20 bills either banning or adding further restrictions to eminent domain.

On Thursday alone, about a half-dozen of those bills were considered in the House and Senate, including one giving property owners the option of a jury trial before any government entity could seize their land.

In addition, a U.S. Supreme Court ruling last year expanding local government’s power to condemn private property has added to the Legislature’s sense of urgency.

That case thrust eminent domain into the national spotlight because the high court ruled in Kelo v. New London, Conn., that local governments can force property owners off their land for private economic development.

According to the court’s decision, property can be condemned strictly for economic benefits even if the proposed project’s success is not assured.

That strikes at the heart of Sturman’s case, as Tempe wanted to seize private property so a real estate developer could build a shopping center.

Now, property rights activists and owners say Arizona residents need more protection from municipal governments because that ruling greatly increased their power.

But others, including members of the powerful utility lobby, contend the state’s “kneejerk” reaction to the high court’s decision carries unintended consequences that could damage local communities.

Russell Smoldon, manager of government relations for Salt River Project [SRP], said the company opposes most of the legislation because it paints too broad of a stroke.

He said SRP only uses its power to condemn property to provide public benefits as allowed by the Arizona Constitution.

SRP officials fear that some of the proposed legislation would interfere with their efforts to install basic infrastructure that local communities need, such as power and sewer lines. That, Smoldon said, could have a damaging effect on local communities.

The main problem, Smoldon said, is that some municipalities have used their power to condemn for the purposes of private economic development and not public benefit.

Tim Keller, president of the Arizona Chapter of the Institute for Justice, agreed. He said towns and cities have a number of tools other than condemnation to use for economic redevelopment.

He has been pushing for legislation that would overhaul the state’s slum and blight definitions. He said cities have been exploiting that broad definition to justify seizing private property. Arizona has tough laws that restrict public takings to only projects that provide a public benefit — such as a road or a hospital.

But some legislative observers say lawmakers are worried that future rulings in state courts could weaken those laws and further embolden cities and towns.

Rep. Chuck Gray, R-Mesa, has sponsored several eminent domain bills being considered this year. Despite the state’s strict standards that limit its use, he said it’s prudent the Legislature add extra safeguards to protect property owners from future attempts to weaken the laws. As for Sturman, he said he has about 50 days to leave his property. But he said he’ll be cheering from the sidelines, hoping the state clamps down on the use of eminent domain. “I hope the Legislature passes these bills so that it could help out people like us in the future,” he said.

Senate bills:
SB1110: Stipulates that economic benefit alone is not a public use for which eminent domain can be used to seize property. Status: Adopted by the Senate and now moves to the House for approval.

SCR1002: A ballot measure that would give property owners the right to a jury trial before any governmental entity could condemn their land. Status: Adopted by the Senate and now moves to the House for approval.

House bills:
HB2062: Requires a written description of the proposed project, including all costs and all aspects of work to be performed, to be given to the property owner. Status: Preliminary approval given by the House. A final vote is scheduled this week.

HB2063: Prohibits public bodies from discussing eminent domain in closed-door sessions. Status: Preliminary approval given by the House. A final vote is scheduled this week.

East Valley Tribune: www.eastvalleytribune.com