Posted on 11/30/2005 6:32:39 PM PST by Graybeard58
PHOENIX -- The state's high court handed Arizona cities a setback Tuesday in the fight over the right to condemn property for commercial development.
Without comment the Arizona Supreme Court refused a request by the city of Tempe for an expedited review of a lower court ruling which blocked its efforts to take total control of a 120-acre site to create Tempe Marketplace. The justices gave no reason for their decision.
Tuesday's action does not end the matter: Attorney Steven Hirsch said the decision simply means that the high court saw no reason to jump into the legal battle -- at least not at this time.
But attorney David Merkel, who represents the League of Arizona Cities and Towns, said the refusal of the justices to take up the issue now creates uncertainty for communities around the state about when they can use their power of imminent domain for major renovation projects that are not clearly public, like highways and sewage treatment plants. That, he said, clouds the ability to take land for things like stadiums, shopping centers and office projects.
He said unless the high court eventually overturns the ruling it will be "the death knell for urban renewal as we now it now in Arizona."
Tim Keller of the Institute for Justice, however, said if Tempe succeeds in overturning the lower court ruling "no Arizona property would be safe" because cities could claim that taxes generated by new commercial development give them sufficient legal right to take someone's land.
What happens now is that Tempe, which lost at the trial court level, now has to go through the regular appeal process which could take months -- if not longer.
The U.S. Supreme Court ruled earlier this year that cities can condemn private property for commercial projects as long as there is some "public purpose." In that case, the nation's high court gave the go-ahead for a Connecticut city to take land and give it to a private developer for an office project.
But the Arizona constitution specifically says private property may not be taken for a private use.
Maricopa County Superior Court Judge Kenneth Fields, in ruling against Tempe earlier this year, cited the constitutional provision and concluded that "profit, not public improvement'' is the motivating force behind the Tempe Marketplace project.
But Merkel said Fields' ruling -- and a similar one by the Court of Appeals in 2003 in a Mesa case -- were based on the erroneous assumption that cities can take property only when the public benefit substantially outweighs any private gain. He is asking the Supreme Court to lower the legal burden on cities.
Uhhh, I think you mean "eminent domain", which is the right of a government or its agent to expropriate private property for public use, with payment of compensation.
The article made the same mistake.
Which is precisely what happened in Connecticut, I think.
I saw it but copied and pasted it anyway. I always use original titles - warts and all.
"Expropriate" always sounds better than "take", by force, if necessary. It's smooth. This probably wouldn't be up for discussion, except they now seem to be stretching the bounds of what now seems to qualify for reason to use that power. Many feel that they are over stepping their legal bounds, and have very much broken from American tradition that holds private property in much regard.
Well, it's obvious that SCOTUS has broken the tradition, but the trouble is that they have stretched the legal bounds by doing so. The AZ constitution (which prohibits expropration for private use) is now in conflict with the U.S. Constitution (as interpreted by Souter & co.) and something's gotta give.
He said unless the high court eventually overturns the ruling it will be "the death knell for urban renewal as we now it now in Arizona."
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He says this like it's a bad thing.
More article and commentary on teh Kelo case and other emm domain cases:
http://www.neoperspectives.com/scotuspropertythieving.htm
"but the computer spellchecker said it was OK !!!"
Maybe it was just a Freudian slip because they believe that their domain is after all, imminent.
There is only one way that can go. Anything else is, or should be unacceptable to any freedom loving people.
Or more precisely, your domain is imminently theirs if they so choose it.
I prefer to use "STEAL!"
You know, I prefer your version too.
There's no conflict; the SCOTUS simply ruled that the Constitution didn't prohibit local or state governments from using eminent domain for private use. States and municipalities are still permitted to ban their governments from engaging in that practice.
Yes but would they? What about the conflict of interest? Would it not be in their best interest to support this$? And then come up with all kinds of high paid answers as to why they must use this power. Corruption and big money can even sway votes, with extended air time and highend, tailor made coverage.
"Imminent domain" means that you have applied for a name for your new Web site, but it hasn't come through yet.
ping
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