Arizona Supreme Court Declines Review Of Tempe Eminent Domain Case

John Kramer
John Kramer · November 29, 2005

Phoenix, Ariz.—The Arizona Supreme Court today declined to review a Maricopa County Superior Court judge’s ruling rejecting Tempe’s attempted condemnation of private property to build a shopping mall. In September, Judge Kenneth J. Fields ruled that the City of Tempe’s land grab is unconstitutional. Tempe and the developer, Miravista Holdings, Inc., desire to build a 1.3 million-square-foot retail center known as Tempe Marketplace on private property located on prime land at the Southwest corner of the Loops 101 and 202.

In October, the City of Tempe filed a petition for special action in the Arizona Supreme Court. The petition attempted to by-pass the Court of Appeals and sought an extraordinary remedy by asking the Supreme Court to overrule a two-year old Court of Appeals decision which rejected the City of Mesa’s attempt to seize Randy Bailey’s brake shop to make way for a hardware store. The Arizona Supreme Court today rejected Tempe’s request meaning that if the case proceeds, it must be presented to the Court of Appeals.

“It is time to cease the appeals in this case and incorporate the remaining properties into future redevelopment plans,” declared Tim Keller, executive director of the Institute for Justice Arizona Chapter (IJ-AZ), which helped represent the property owners in briefs before the High Court. “While the City of Tempe asserts that it must acquire the properties for environmental remediation, the trial court rejected that assertion. The bottom line is that if the land must be cleaned up, the government doesn’t need to take it from the rightful owners. The court rightfully saw through Tempe’s empty environmental clean-up claims.”

“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,” declared Jennifer Barnett, staff attorney at the Institute for Justice Arizona Chapter. “The trial court clearly found that Tempe is trying to take land for a private use, not a public use.”

“Tempe’s special action petition asked the Arizona Supreme Court to make a major shift in Arizona legal precedent by abandoning the text of our state Constitution and instead adopting the reasoning of the U.S. Supreme Court in the recent Kelo v. City of New London case, which held any alleged ‘public benefit,’ including increased taxes and job revenue, will satisfy the public use inquiry,” explained Keller. “If Tempe were to get its way, then no Arizonan’s property would be safe because anybody’s property could generate more tax revenue as part of an enormous retail shopping complex.”