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Sophistry from the Superior Court

November 8, 2014

The Superior Court decision upholding the massive subsidy Phoenix gave CityNorth is an exercise in legal sophistry.

Judge Robert Miles held that there were considerable public benefits from the building of the shopping center, and so there wasn’t a violation of the state Constitution’s gift clause.

There is not, however, a public purpose or benefits exception to the gift clause ban. It states that no Arizona government “shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any . . . corporation.” Period.

The only legal issue in the case should have been whether Phoenix was paying a market rate for a specific good or service for its tax rebate. And that should have been easily disposed of. Cities don’t have to pay shopping centers nearly $100 million to provide free parking at their developments. And that’s a tad high for 200 park-and-ride spaces. At one point, Phoenix was requiring developers to provide easements for transit as a condition of zoning.

If the court manufactures a public purpose exemption from the gift clause ban and then defers to local governments as to what constitutes a public benefit, the gift clause will have, for all practical purposes, no meaning. And the court will have amended the state Constitution without a vote of the people.

Robert Robb is a columnist for the Arizona Republic. This article originally appeared in the Arizona Republic.

Learn More:

Goldwater Institute: CityNorth Subsidy Case, Turken v. Gordon

Goldwater Institute: Problematic Parking



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