Eminent Domain Abuse in Arizona: The Growing Threat to Private Property

Posted on August 16, 2002 | Type: Policy Report | Author: Jordan R. Rose
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The Arizona Constitution contains the very strongest protection of private property rights in the nation. Arizona allows governments to condemn private property only for clearly defined public purposes, such as roadways and police stations, or certain very specific private purposes, such as a right of way or a drain. As written, that constitution gives Arizona property owners complete security against arbitrary condemnation and seizure by local governments. Since 1997, however, when the Arizona State Legislature adopted new redevelopment statutes, the power of governments to take has become frighteningly broad, and the spirit of the Arizona Constitution has been ignored.

The redevelopment statutes allow municipal legislative bodies to vote to put property in redevelopment districts for preposterous reasons. An area can be targeted for redevelopment if it is deemed to be "deteriorating," if there is "no diversity of ownership," or if the streets are "inadequately laid out." Once properties are voted into redevelopment districts, municipalities can move to condemn them and then sell them to other private property owners.

The redevelopment statutes threaten every landowner in Arizona because municipalities can use it to force any property owner off a piece of land. If a developer is attempting to purchase property and cannot reach an agreement on the sales price, the relevant municipality can step in, vote to put the reluctant seller in a redevelopment district, condemn the property, and then sell the land to the developer. In effect, the redevelopment statutes give municipalities the power to act as real estate brokers in what have traditionally been private land deals. Two recent examples are the Scottsdale City Council's attempted condemnation of the Coach House and the city of Mesa's current attempt to force out Bailey's Brake Service.

This study offers some general background on private property rights under the U.S. and Arizona constitutions and describes the use and abuse of the power of eminent domain in the state. It then suggests means of political opposition and legal defense for landowners who become victims of eminent domain abuse. The study also lists several means by which municipalities can achieve redevelopment goals without abusing the rights of private property. The study concludes by recommending two major reforms with regard to private property and redevelopment in Arizona:

1. The legislature should revoke the 1997 redevelopment statutes in their entirety. The Arizona Constitution already allows for municipalities to condemn property for truly public purposes such as the provision of roadways, sewers, and sanitation. The free market can and will allow for redevelopment of older areas without any government intervention.

2. The legislature should adopt a statute requiring municipalities to hold at least two public hearings prior to any condemnation. Currently, a general plan amendment requires two public hearings, but condemnations are generally not discussed in public meetings and often appear only on executive session agendas and as consent items in public hearings.

Click here to read the report.

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