A Baseline, Not a Ceiling

Posted on June 27, 2005
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Property owners are reeling from last week's U.S. Supreme Court ruling in Kelo v. City of New London, which permits the Connecticut municipality to seize land from homeowners and sell it to a private developer to build a hotel, office space, and shops.

The Court's decision gutted Fifth Amendment private property protections, which limit government power to seize private property to cases where it is needed for "public use," traditionally interpreted as projects like roads and bridges.

However, Justice Stevens writes "that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose 'public use' requirements that are stricter than the federal baseline."

Arizona is one such state. Article II, Section 17 of the Arizona Constitution limits acceptable private uses of condemned property to "private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes."

In the well-publicized 2003 Bailey case, Arizona Court of Appeals judge John Gemmill upheld a narrow definition of public use: "The constitutional requirement of 'public use' is only satisfied when the public benefits and characteristics of the intended use substantially predominate over the private nature of that use."

When it comes to protecting private property, the federal constitution is a baseline. Property owners in Arizona can take some comfort knowing that the Arizona Constitution sets a higher standard.

Key Links:
-Institute for Justice: Kelo case file
-U.S. Supreme Court Decision in Kelo v. New London
-Arizona State Constitution

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