Benjamin Barr

Tempe Loses Bid to Take Property

Posted on November 30, 2005 | Type: Press Release | Author: Benjamin Barr
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The Arizona Supreme Court yesterday rejected Tempe's request for a special action in Tempe v. Valentine.  At issue was whether Tempe's proposal to condemn private property to make way for a developer to erect a shopping mall met the constitutional definition of "public use."  At the trial court, Tempe lost; prompting the city to file its special action petition. 

The Arizona Constitution contains explicit protection for property owners, prohibiting the taking of private property for private use in most instances.  Historically, "public use" has been interpreted to include such things as sewers and roads.

In the 2003 case Bailey v. Myers, an appellate court developed a test to determine when a project meets the proper definition of "public use".  According to the court, the public benefits of a project must "substantially predominate" over private benefits.  The test is a good first step to restoring the constitutional meaning of public use. Under this standard, a project that primarily benefits one private individual or group of individuals rather than the public as a whole will be found unconstitutional.

In its special action petition, Tempe asked the Arizona Supreme Court to reject Bailey, contending that as long as a municipality could show minimal public benefit, the public use standard would be met. Under such a broad standard however, any home could be torn down if a tax-generating 7-Eleven were built in its stead.

Sharing recognition that private property rights are fundamental to a free society, the Goldwater Institute and NAACP Maricopa County Branch filed an amicus brief in support of the Bailey standard. Bailey gives courts the full picture about municipal projects to help ensure that eminent domain is employed only for the uses for which the power was intended.  Fortunately, the Arizona Supreme Court declined the request to reject the Bailey standard, leaving its sound constitutional standard intact.

Key Links:

- Arizona Daily Star: "My opinion Jim Kiser:  Court can clarify property-use questions"
-Institute for Justice: Castle Coalition

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