2007 Eminent Domain Report Card: Arizona Gets A “B+”

Matt Powers
Matt Powers · June 6, 2007

Arlington, Va.—Arizona home and small business owners have reason to celebrate according to a 50-state eminent domain report card released today. In the two years since the infamous Kelo eminent domain ruling from the U.S. Supreme Court that allowed eminent domain for private gain, Arizona has passed some of the strongest legislation in the nation protecting small property owners from eminent domain abuse.

“Arizona homeowners are much more protected from eminent domain abuse today than they were the day the Kelo decision was announced,” said Steven Anderson, director of the Castle Coalition, a national grassroots organization that examined and graded eminent domain laws for each of the 50 states since the Kelo ruling. Read the report at: www.CastleCoalition.org/publications/report_card.

According to the report, the Arizona Legislature responded to Kelo by passing House Bill 2675 (2006), which was an extremely strong piece of blight reform legislation. The bill would have required a condemning authority to prove by “clear and convincing evidence” that a property is maintained in a slum condition, and blight designations could be made only on a property-by-property basis. It also prohibited the use of eminent domain for economic development. Unfortunately, however, the governor vetoed the bill.

But the people of Arizona would not let their governor have the last word when it came to protecting their liberties. Proposition 207 was filed in response to the veto and the statutory reform was reborn through citizen initiative. The language, very similar to HB 2675, appeared on the ballot last fall and passed by a substantial margin.

The Private Property Rights Protection Act accomplished many necessary eminent domain reforms. Most importantly, the initiative significantly limited the scope of activities that could qualify as a public use. Rather than creating an exhaustive list of approved uses, Arizona’s new definition of public use simply requires that the general public retain “possession, occupation, and enjoyment of the land.” With this approach the statute encompasses the traditional uses of eminent domain, with allowances for acquisition of property to handle utilities, unsafe structures, or abandoned properties, but not for benefits from economic development. The next step is to include these protections in the state constitution.

Proposition 207 did not amend Arizona’s Slum Clearance and Redevelopment chapter, so extremely broad definitions of “blighted area” and “slum area” were not changed. But after the recent reforms, all eminent domain actions now require a judicial determination that the use is, in fact, “public.” In the case of slum clearance and redevelopment, the government must present clear and convincing evidence that each and every targeted parcel poses a direct threat to the public, such that eminent domain is necessary to eliminate the threat. With these new protections, as well as heightened compensation requirements, the citizens of Arizona have fought back against eminent domain abuse and can worry less about developers and city officials kicking them out of their homes.

Among the states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota, each of which received an A or A- grade. States that received F’s were: Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

“In only two years since Kelo, 41 states have reformed their laws to offer greater protection to small property owners,” said Jenifer Zeigler, legislative affairs attorney with the Castle Coalition. “But much more work remains if homeowners, small business owners, churches and farmers are to be as safe as those in Arizona from the unholy alliance of tax-hungry governments and land-hungry developers.”

The report seeks to step back and evaluate the legislative work that has been done and is left to do. It finds, “Some states have passed model reforms that can serve as an example for others. Some states enacted nominal reform—possibly because of haste, oversight or compromise—and need to know what is left to fix. And finally, there are those states that have failed to act altogether, leaving home, farm, and business owners threatened by Kelo-type takings and beyond.”

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (703) 682-9320 ext. 205 or in the evening/weekend at (703) 527-8730. For more information on eminent domain abuse, visit www.ij.org or www.castlecoalition.org.]