http://www.azcentral.com/news/articles/0115eminent15.html

Cities call eminent-domain bills too harsh Opponents say legislation would block redevelopment and vital civic projects

Casey Newton The Arizona Republic Jan. 15, 2006 12:00 AM

Local governments are opposing legislation that would limit their right to seize property for public use, saying it would cripple efforts ranging from road construction to redevelopment.

State lawmakers in both the House and Senate have introduced bills this session to create new hurdles for cities and towns trying to use eminent-domain powers to take private property.

Among other provisions, new laws would:

Prevent municipalities from discussing land seizures in executive session.

Allow a jury, not a judge, to decide whether a land seizure constitutes a "public use."

Award all court costs and attorney fees to the defendant in eminent-domain cases, regardless of the outcome.

The bills' primary sponsor, Rep. Chuck Gray, said the new laws are needed to protect property owners from the judges who sometimes side with government. The bills could face a floor vote as early as this week.

"I thought it was important that we strengthen our laws to make sure that private-property rights are protected against the government's intrusions, and to be proactive about it instead of reactive about it," said Gray, R-Mesa.

But city leaders say the bills would paralyze them in their efforts to build roads and sewers, never mind rebuilding blighted areas.

"Any one of these bills would make the condemnation process more difficult," said Tobin Rosen, Tucson's city attorney, in an e-mail. "Together, they would make condemnations for economic-development purposes almost impossible, and would make normal condemnations much more expensive and time-consuming."

Chandler officials are strongly opposing the bills, saying new regulations could prevent them from acquiring the land to build a new City Hall downtown.

While the city would use eminent domain only as a last resort, lobbyist Patrice Kraus said, Gray's bills would make the project vastly more difficult.

New London calling

Arizona is the latest state to reconsider its eminent-domain laws in the wake of a key U.S. Supreme Court decision in June.

In Kelo vs. New London, the court ruled 5-4 that a Connecticut city could raze residents' homes so a private developer could built a riverfront hotel, health club and offices in their place.

Under the U.S. Constitution, the government can take land only if it represents a "public use."

The Kelo ruling surprised observers by arguing that a private development could be considered a public use and that property rights could be superseded by prospective economic benefits.

In recent months, legislatures passed new restrictions on property seizures in Alabama, Delaware, Ohio and Texas. The National Conference of State Legislatures says defining "public use" is one of its top five issues this year.

The court's decision worried property owners in the Valley, where high-profile eminent-domain cases include the recent fight to build the Tempe Marketplace and Mesa's attempt to acquire Randy Bailey's brake shop.

Among those concerned by the Supreme Court ruling is restaurateur Betsy Yee, who is at odds with Phoenix over the city's attempt to take the front of her property to accommodate light-rail construction.

"I feel very strongly about taking land for private use," said Yee, who owns the Blue Fin, 1401 N. Central Ave. If the city tried to give her land to a private developer, she said, "it'd be over my dead body."

Yee acknowledges that light rail is a public use and could be good for the city. But she said Phoenix's eminent-domain proceedings against her have been bewildering and said the city had offered to buy her property at only a fraction of the true value.

Could it happen here?

Advocates for cities say the Arizona Legislature's bills go too far.

"The Kelo case could not have happened here," said Kevin Adam, lobbyist for the Arizona League of Cities and Towns. "The Arizona Constitution is far more restrictive than the U.S. Constitution - and also more restrictive than what is allowed in Connecticut."

Adam said Gray's proposals could prevent cities from redeveloping altogether. He is especially concerned about the bill that would guarantee property owners court costs and attorney fees even if they lost a legal challenge.

"You're incentivizing people to settle this in court, which is going to drive the cost of condemnation actions up, and the taxpayer is going to pay that cost," Adam said.

Gray said most of his bills would affect only cases in which a city attempted to transfer property from one private landowner to another.

Meanwhile, property-rights advocates say Arizonans have reason to worry about their land.

"When government determined that it can use eminent domain to create a more-beneficial use for your property, you have a specter of condemnation that will hang over any type of property," said Benjamin Barr, a policy analyst for the libertarian Goldwater Institute.