...And Kelo Visits Arizona

For those of our regular readers who don’t know this, Marcie and I live in Arizona. To be exact, we live in Mesa, where last year a bitter battle erupted over the Mesa City Council and Randy Bailey—the owner of Bailey’s Brake Shop. In short the city was trying to seize the shop because Mr. Bailey was the only business owner who refused to sell his property to the City Council so they could redevelop the area.

This story is a couple days old, but I had to do a bit of research regarding it before I could put a post up.

Tempe this week will try to convince a judge that the city should be allowed to take immediate possession of land from 13 property owners to build a $200 million mall.

Developers plan to transform a polluted, rough-and-tumble industrial corridor into a bustling shopping center. But Maricopa County Superior Court Judge Kenneth Fields must decide Tuesday if Tempe can use its eminent domain powers to take the 200-plus acres.

Here we go again as the Arizona version of Kelo v. New London comes home to roost. Back in June, both Marcie and I posted a bit on the decision reached by the USSC in a case regarding the eminent domain powers of the state, or of cities. The residents of New London that filed the appeal to the high court were not living in a "blighted" or a "slum." No buildings had been "condemned." The residents simply refused to accept the city’s "just compensation" for their land. This is their right under the Fifth Amendment, or so it was prior to the Kelo decision. In that decision, the US Supreme Court ruled against property owners, claiming that the controlling interest of the community was in greater tax revenues, and the new development would be for "public good."

The problem with that logic is that it’s wrong. The Fifth Amendment doesn’t state "public good." The exact phrase is "for public use." The development that was being proposed in New London was not a road, a park, a school, or anything dealing with the public use as the proper interpretation of the Fifth Amendment.

And in the Valley, eminent domain cases hit a raw nerve. Critics say the Tempe case has shades of the one involving a brake shop owner who fended off Mesa's plan to give away his land.

"For me, this is the Bailey's Brake case all over again," said Troy Valentine, a cabinet shop owner and defendant in the Tempe suit. His business has been near McClintock Drive and Rio Salado Parkway for 11 years. "This is not (for) a public building - a fire station, a police station or a road. Someone else wants my property for their own benefit," he said referring to the Tempe Marketplace developers, who ultimately would gain the land.

In court, Valentine and other property owners will argue that their neighborhood doesn't meet the legal definition of "slum" and that the mall is not a "public use" of the land, said Steven Hirsch, a Phoenix lawyer who represents Valentine.

Tempe annexed the industrial corridor from Maricopa County in 1999, promising to make nearly $1 million in sewer, road and other infrastructure upgrades, Hirsch said. The city never did the work but now is using those problems and environmental issues to justify a land grab, he said.

Mr. Valentine is correct. Only this time, the high court has ruled against such a fight. You can, but you’ll lose because their precedent stands. It takes the high court to reverse the decision. Mr. Hirsch is also correct. A check of the records show that Tempe hasn’t spent one dime to help revitalize that area in terms of the normal maintenance required by a city. They made a promise, and broke it just as easily.

I’ve driven down to this area. I did so just a couple days ago to see for myself whether the area was truly—under the definition of the law—blighted. Is it run down? A little, yes. Are there any condemned buildings? None that I could see. Were there people there—the public—utilizing the area? Not at night, but based on the businesses in the area, I would say yes. But this is what the State Constitution states about eminent domain:

17. Eminent domain; just compensation for private property taken; public use as judicial question

Section 17. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the state treasury for the owner on such terms and conditions as the legislature may provide, and no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefore be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.

In 1997, the state legislature effectively gutted the Constitution's protection and now allows local governments to seize private property for any reason they may choose, even the most preposterous. If a locality decides a piece of property has "no diversity of ownership" or if there are streets that are "inadequately laid out" or the property is seen to be "deteriorating" the municipality can just snatch it up.

According to the City of Tempe, the area is question is considered "blighted" and a "slum." (For the record, I used to work in a slum; this area isn’t even close to being a slum.)

The complex deal between Tempe and developers Mira Vista Holdings and Vestar Development Co. is the only way to mop up the former Superfund site, Braselton said.

In the Tempe case, the Marketplace site is part of a credible redevelopment area, Braselton said.The mall also could bring Tempe an economic windfall. An estimated $5 million in annual sales tax revenue, and 4,500 jobs hang in the balance, the city says.

And there was this twist added by the city’s lawyers.

The city must have all 214 acres to clean up pollution on the former Superfund site, said Tempe's attorney, Jim Braselton, during his opening statement. Workers have found methane gas -- which can cause explosions -- hazardous waste and contaminated surface soils, he said."What we have underneath here is land that was reclaimed and sits on top of landfills," Braselton said. "The probability is real that it's a real danger to the public's safety."

This is the main point of the city’s argument. And on any other occasion, some people may agree with this argument. Those people would be fools that take what the city says at face value, and not investigate any further. But, Mr. Hirsch isn’t going to, and had this to add to today’s story on this case.

"The federal Environmental Protection Agency ‘de-listed’ the former Superfund site because ‘no other action was needed or required,’ he said. The remaining properties are largely uncontaminated, and Tempe controls enough land to address any pollution without using eminent domain," Hirsch said.

OK. I’m no fan of the EPA, and I’m an even bigger critic of them and their overreaching bureaucratic bungling. However, if they removed the site from their list of health hazards, where is the leg that Tempe was standing on. Oh yeah. The Cardinals just drop kicked it.

Fact of the matter is this is a clear usurption of property by the City of Tempe, and done much in the same way the City of New London manufactured theirs. It is being done through the guise of revitalization, and all for the benefit of tax revenues. This isn’t going to help revitalize the area. If that were true, Tempe would do the same thing in this proposed area that the did on Mill Ave. Mill was the "hot spot" in the East Valley. It was, for the most part, virtually transformed into an area where people wanted to put a business. It wasn’t swiped by the city for a developer already with plans in hand.

Kelo has given the cities, states, and municipalities the right to take what isn’t theirs; an inherent right enumerated under the Constitution—that being the ability to own private property, and not have someone take it away for a reason other than "public use." The reason Tempe is doing this over an increase to their tax coffers. It’s the same reason that New London did what they did. And it is disappointing that the United State Supreme Court decided the way they did. The Framers established this branch to be the weakest; the one least likely to injure our rights. Unfortunately, the judiciary—the highest court in the nation—decided not just to injure them, and pave the way for cases like this. They drove a stake right through the heart of the Constitution.

Publius II