Court turns away appeal on eminent domain

PHOENIX - In a victory for property rights advocates, the Arizona Supreme Court on Tuesday declined to consider Tempe's appeal of a trial judge's rejection of the city's efforts to use condemnation lawsuits to seize privately owned land so that it can be used for development of a shopping complex.

With backing from a group representing municipalities across Arizona, Tempe had argued that the trial judge's ruling and a never-appealed 2003 decision by the Court of Appeals in a Mesa condemnation case set the wrong legal standard for condemnations for redevelopment projects.

The Supreme Court's action, made without comment, let stand a Sept. 13 ruling by Judge Kenneth Fields of Maricopa County Superior Court.

Tempe had asked the Supreme Court to overturn both Fields' ruling and the 2003 Court of Appeals ruling that he relied on to make his decision. In the 2003 ruling, the Court of Appeals said the Arizona Constitution requires that public benefits from use of eminent domain for redevelopment projects must substantially outweigh private benefits.

That's a tougher standard than the one found in the U.S. Constitution earlier this year by the U.S. Supreme Court in an eminent domain case from New London, Conn.

The city's appeal of Fields' ruling was a special action filed directly with the state Supreme Court, and it wasn't immediately known whether the city will file a regular appeal that would have to work its way through the Court of Appeals before reaching the state high court again.

Tempe spokeswoman Nikki Ripley referred a request for comment to a lawyer for the city who did not immediately return a call Tuesday from The Associated Press.

An attorney for the League of Arizona Cities and Towns said the Supreme Court's action means the Court of Appeals' 2003 ruling in the Mesa case known as Bailey remains binding precedent on Arizona trial courts.

Fields, said league general counsel David Merkel, "felt he was bound by Bailey and I think he was."

However, because the Supreme Court declined to rule on the Tempe case, it's not known whether the justices agreed with the Mesa ruling or had some other reason to turn away Tempe's special action, according to Merkel.

"We still don't have the highest court of the state opining," he said.

The league had filed a legal brief urging the Supreme Court to overrule Fields' ruling or to modify the Court of Appeals decision to find that deciding whether a condemnation decision has enough public benefits to pass the state constitutional test is a decision for city councils, not courts.

The Supreme Court's action represents a rebuff to Tempe's attempt to "hopscotch over the Court of Appeals," said Timothy Moulton, a lawyer who filed a friend-of-the-court brief on behalf of the Goldwater Institute to support the property owners in the Tempe case.

Tempe's position, if adopted by the Supreme Court, would have opened the door to a standard where any condemnation would be allowed if there's a claimed public benefit, Moulton said.

Lawyers for the Institute for Justice, a public-interest law firm which helped represent the Tempe property owners before the Supreme Court, said the city should drop the court fight.

"If Tempe continues to push this case, we have no doubt that the courts will enforce the plain language of the Arizona Constitution, which prohibits taking private properties for private use," said Jennifer Barnett, an attorney for the institute's Arizona chapter. The property owners in the Tempe case also received support from an association representing mobile home parks.

Older parks located in urban cores and housing low-income residents would be "prime targets of municipal authorities should the takings standard under the Arizona Constitution be watered down," the Manufacturing Housing Communities of Arizona said in a friend-of-the-court brief.