No eminent domain for Tempe
By Garin Groff, Tribune
November 30, 2005
The Arizona Supreme Court on Tuesday set back Tempe's efforts to
build a massive shopping center through condemnation.
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The high court decided not to consider Tempe's request to overturn an
eminent domain case that stands in the way of Tempe Marketplace.
Several property owners have refused to sell land needed for the
project and the city has tried to force them to sell through eminent
domain.
Private property advocates said the decision is a big win.
"I'm just thrilled," said Del Sturman, a spokesman for Desert
Composites, one of the remaining holdouts. "It's solidifying that
private property rights are still very important. And they're more
important than a shopping center and they're more important than some
one else's profit motive."
Miravista Holdings and Vestar Development Co. control all but 28 acres
of the 120-acre project. The city has said the scattered industrial
lots are essential to finishing the project and cleaning up
environmental hazards.
Tempe Mayor Hugh Hallman said Tuesday it was too early to know what's
going to happen next.
The decision doesn't necessarily kill Marketplace - or the
possibility Tempe could use eminent domain. The city can still turn to
the Arizona Court of Appeals, though that's the court that issued the
ruling Tempe wants to overturn.
Tuesday's decision will create even more heartburn over eminent
domain, said David Merkel, who represents the League of Arizona Cities
and Towns.
Because the court didn't uphold or strike down eminent domain - it
merely declined to hear the matter - cities will remain confused over
when it's OK to seize land for redevelopment.
"I wanted to hear the Supreme Court say who was right and who was wrong
and they decided not to do that," said Merkel, who has sided with
Tempe. The court did not say why it declined to take the case.
Tempe wanted the court to overturn the 2003 Randy Bailey eminent domain
case -a landmark ruling for redevelopment projects in Arizona. In
that case, the Arizona Court of Appeals said Mesa could not force brake
shop owner Randy Bailey off his land and transfer it to a hardware
store owner.
The court said the private landowner was receiving a substantial
benefit while the public was receiving a relatively small one, which is
not the intent of eminent domain.
That case has confused cities because it conflicted with previous
Arizona Supreme Court rulings about condemning land for redevelopment,
Merkel said.
Tempe argued the public would benefit substantially because the
Marketplace would clean up an environmental mess left by years of
industrial use. In the process, Vestar Development will build the
shopping center and make a profit.
The city argues the developer's role is essential to help pay for
important benefits - cleaning up former landfills, getting rid of
potentially explosive methane gas and demolishing unsafe buildings.
The Arizona Court of Appeals ruled Sept. 13 that the city's attempted
condemnation did not meet the standards for public use.
The remaining landowners question the benefit of seizing their land to
build a shopping center. They say the city has exaggerated the supposed
hazards and insist Tempe doesn't need to take every property to clean
up the area.
Tempe should instead negotiate with property owners for what they feel
is a fair price or change its redevelopment plans, said Tim Keller of
the Institute for Justice.
The organization has helped landowners in eminent domain cases.
Property owners said they hope the Supreme Court refusal will make
Tempe give up eminent domain.
"The Supreme Court has sent a real strong message to the city that they
don't have a case," Sturman said. "We'd like them to go away and
leave us alone because we're tired of being hassled."
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