Benjamin Barr

Making sure your land is yours

Posted on January 27, 2006 | Type: Op-Ed | Author: Benjamin Barr
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Got curb appeal?  Since the U.S. Supreme Court’s decision in Kelo v. City of New London, America has seen a proliferation of private property takings for things as insignificant as a property’s appearance.  Local governments are abusing their power of eminent domain to create new shopping malls, condos, and industrial parks.  Fortunately, the abuse can stop at Arizona’s doorstep.

The Arizona Constitution places two restraints on the power of eminent domain: public use and just compensation must be present.  While the state constitution affords private property strong protection, Arizona’s slum clearance and redevelopment statutes, which authorize the use of eminent domain, are expansive and vague.

For example, in the recent case of Tempe vs. Valentine, the city condemned 19 properties to build a massive shopping mall.  But the trial court agreed that malls don’t qualify as a traditional “public use” under the Arizona Constitution.

Even though this and other recent cases have turned out correctly, Arizona landowners shouldn’t be required to go to court every time a city dreams up a new redevelopment project.  Instead, the laws should be reformed to more strictly limit eminent domain usage. 

Under Arizona law, local governments may designate all sorts of properties as slum or blight.  Municipalities can declare properties blighted because their street layouts are “inadequate” or because property lots are considered faulty due to their “usefulness.”   

Slum and blight should be applied only to properties that are truly unsafe for habitation.  That will help make sure your land remains yours, even if the government thinks your home doesn’t have curb appeal. 

The case of Kelo taught the nation that defining “public use” is very important.  Without a sound definition, municipalities are apt to declare shopping malls and condos as public use projects.  In Arizona, “public use” is not clearly defined in slum clearance and redevelopment statutes.  But it should be, and it should be given the narrowest definition possible in order to protect private property.

Moreover, under the current law, citizens often bear the burden of demonstrating why they should be permitted to keep their home or business during eminent domain proceedings.  Let’s turn this equation around by requiring local governments to demonstrate, through clear and convincing evidence, that using eminent domain is truly necessary.  Requiring municipalities to submit comprehensive maps with detailed descriptions of the slum conditions present on each property would help make sure local governments use the power only for truly extraordinary purposes. 

Finally, if government is in the business of preventing slum and blight, then it should shorten its existing designations.  Once a designation is in place, property values often drop and owners have little incentive to invest in their own property, leading to the deteriotation they hoped to prevent. Limiting the duration of slum and blight designations returns the property to the marketplace sooner.

The Legislature should tighten and restrict slum clearance and redevelopment statutes as an important step in assuring Arizonans that their land really is their land.  


Benjamin Barr is an analyst with the Goldwater Institute.

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