Eminent Avarice at an End

Posted on October 05, 2003 | Type: In the News
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Well, cities, the party is officially over. Goodbye to taking when you don't like the look of the development on the corner or you think a newer, fresher building might bring in more revenue. It's not that city planners and elected officials can't still be visionary in their quest to see their municipalities develop in the best possible way, they just can't force someone to sell out in order to implement the vision.

In the Randy Bailey brake shop case, the Arizona Court of Appeals read the state Constitution, and thankfully decided that the words in Article 2, Section 17-- "private property shall not be taken for private use" are to be taken literally.

While you may read that and think it is pretty darn clear what the framers of our state constitution intended, Arizona municipalities have been reading that provision to allow them to play strong arm real estate broker, forcing private land owners to sell their homes, land and businesses, even if they do not want to sell.

This decision does not stop revitalization of older sections of municipalities, it merely tells cities that if they want to revitalize, they need to help private parties make a deal. The Court of Appeals gives people back the right to chose to sell or to hold and allows us to be at least a bit more secure in the ownership of our land.

The court ruling instructs cities that they can only take land for a clearly public use, like a park, road, government building or for the health, safety and welfare of the general public. It says that when a municipality takes land for a use that is questionable, the court can be asked to step in and decide on a case-by-case basis whether or not the Arizona Constitution allows it.

Private property owners in Arizona should hum these words: the "anticipated public benefit must substantially outweigh the private character of the end use so that it may truly be said that the taking is for a use that is really public." Look at that Randy Bailey, the Scottsdale Waterfront, the Coach House--the use they take your property for must be "really public". Ding-dong the witch is dead!

The decision suggests some 18 important questions to properly determine whether the city has violated the constitution. While this leaves the door open for some takings that are not for a clearly public use, the questions, such as asking if the development will actually house public services, if there is a profit motive, and if a private entity will benefit more than the general public, should prohibit most abuse.

When the Goldwater Institute published a study in August 2002 suggesting legislation that might save people from the threat of the government taking their property, and then when House Majority Leader Farnsworth introduced legislation to tighten up the redevelopment districts so municipalities had less room for abuse, private property owners rejoiced. But to have the courts step in and actually save us all from this rampant abuse of government power gives me new faith in the American system of government.

While the porn stars and old sit-com cast members may be making a mockery of democracy in California, isn't it great that freedom reigns in Arizona?

--Scottsdale land-use attorney Jordan R. Rose is on the managing board of the Institute for Justice. She referred the Bailey case to the institute.

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