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Taking aim at eminent domain

By Howard Fischer

Phoenix – Rep. Chuck Gray said he has no problem with cities using their power of eminent domain for legitimate public purposes, like streets and firehouses. But Gray said he believes cities misuse that right in the name of urban redevelopment. So he wants to give those property owners whose land would be taken for those projects more rights. One of his measures would let a jury decide whether the property seizure is really for a public use -- allowed by the state Constitution -- or for some private development. A companion bill would place the burden on the city to prove that the land really is needed for a public purpose. Now all city actions are presumed legally valid, leaving it up to the property owner to prove otherwise. Finally he wants to ban any taking of private property if it Ultimately would put one person's land in the hands of another private landowner. So, for example, a city could not decide that it needs to demolish some old businesses downtown to make way for a new mini mall or hotel.

Kevin Adam who lobbies for the League of Arizona Cities and Towns said he appreciates the legislature's desire to protect property rights.

(But obviously the concern is, if you swing the pendulum too far, are you going to cripple the ability of cities and towns to redevelop and address slum and blight, particularly in urban areas that are undergoing significant decay.)

Gray said that's exactly what he has in mind. He said there are other answers to questions of urban blight. For example, he said a city can use existing nuisance laws to force a landowner to either bring the property up to standards or close.

(But to take that property away from them and then give it to another person because of the tax revenues that it might bring the cities has nothing to do with the blight itself, other than as a cover to take the

Adam said that's fine -- if the property owner complies.

(And if they don't choose to fix it up, basically, I suppose you could shut them down. You could board up that business or that home. But that doesn't address the slum or the blight. It just basically you have an unoccupied building which is potential for additional crime.)

Gray's fear of cities taking land from one owner and giving it to another in the name of higher taxes is not entirely unfounded. The U.S. Supreme Court ruled last year that cities can take private property and turn the land over to another private developer. The justices said increased tax revenues and new jobs were enough to qualify the action as a taking for a -- quote -- public purpose. Arizona does have a more restrictive constitutional provision which bars taking private property for private purposes. And state judges have twice rejected efforts by cities to take land to give to new private businesses as part of municipal redevelopment projects. But Gray said that without further restrictions at the state level cities will find new angles to take property. In Phoenix, for Arizona Public Radio this is Howard Fischer.