Eminent domain limit OK’d: East Valley Tribune (Mesa AZ), 5/27/06

By Dennis Welch

The Arizona Legislature has approved what some are calling the most sweeping changes to eminent domain in the state’s recent history by severely limiting when cities and towns can take private property for economic development.

Despite strong opposition from state municipalities, the Legislature adopted a measure late Thursday that would bar local governments from condemning property solely to boost sales tax dollars.

“It should not be easy for government to take someone’s property,’’ said Sen. Chuck Gray, R-Mesa, sponsor of the legislation. “This is America, after all, not China or the old Soviet Union.’’

If passed, Gray said his legislation would further protect the rights of private property owners from what he sees as the abuse of eminent domain by local government agencies.

The bill goes on to eliminate the ability of governments to designate large swaths of land as “slum” or “blighted,” and use that as a reason to condemn properties. Governments would have to condemn land on a property-by-property basis.

The measure also mandates that property owners be given a chance to clean up their properties before they can be taken under the state’s current slum laws.

Tim Keller, an attorney for the Arizona chapter of the Institute for Justice, called the bill one of the most significant pieces of private property legislation in the state’s history.

“I believe this will stop the use of slum and blight by cities that use it as a cover for economic development,” he said.

It is now up to Gov. Janet Napolitano to decide whether she will sign the bill. Officials with Napolitano’s office said Friday that the governor would not comment on the bill until after she makes a decision.

Kevin Adams, a lobbyist for the League of Arizona Cities and Towns, said the bill strips governments of a tool that could be used to revive economically depressed areas. He added that he will urge the governor to veto the bill.

“This effectively takes away the ability of towns and cities to redevelop certain areas,” he said. “We really think this is overkill.”

Adams believes there are enough laws on the books including the state constitution, to safeguard the rights of property owners. But local governments have been using laws that govern public benefits as a way around that.

The Institute for Justice successfully defended Randy Bailey, a Mesa brake shop owner, from the city’s efforts to take his business for economic development. The landmark decision by the Arizona Court of Appeals in 2003 further strengthened private property rights in the state.

However, Keller said the decision did not fully protect property owners because the case was not heard by the Arizona Supreme Court. The proposed legislation would basically codify the Bailey decision into state law.

Although Mesa has not since tried to condemn property for redevelopment, the city did oppose the legislation because officials had concerns that this new law would be overly restrictive.

“This raises the threshold so much that even when there is a true slum area we may not be able to . . . mitigate a public health and safety issue,” Mesa government relations coordinator Scott Butler said.

Mesa Mayor Keno Hawker who voted against expanding the redevelopment area to include Bailey’s business but then voted in support of the condemnation, said he agreed with the Arizona Court of Appeals decision regarding Bailey and thought that should be given time to see how it worked out.

“I’m disappointed some one still wants to ride that bandwagon and put some thing through whether it makes sense or not,” Hawker said.

East Valley Tribune: http://www.eastvalleytribune.com