Tempe now knows: Bailey case is eminent domain cornerstone - East Valley Tribune: Opinion

Tempe now knows: Bailey case is eminent domain cornerstone

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Posted: Thursday, December 1, 2005 5:38 pm | Updated: 7:59 am, Fri Oct 7, 2011.

Arizona's municipal officials, who've gotten used to using eminent domain as a redevelopment tool, are blubbering over the state Supreme Court's refusal to hear Tempe's appeal of Mesa's loss in the Bailey Brake Shop case. Tempe officials wanted the Bailey ruling overturned to clear the way for their Marketplace commercial project southwest of Loops 101 and 202.

The Tempe Marketplace is a worthy project, as was Mesa's redevelopment effort that involved the Bailey case.

Randy Bailey, you'll recall, fought Mesa's attempt to take his property near a key downtown intersection for redevelopment by other businesses. The Arizona Court of Appeals ruled that condemning private property in order to hand it over to private developers violates the state constitution's requirement that eminent domain be used only for public purposes.

Tempe had argued that environmental cleanup of the Marketplace site was a legitimate public interest justifying condemnation. But the trial court judge determined the cleanup could be done without taking the property from its owners.

So the quite sound Bailey precedent still stands. That is, cities can still pursue redevelopment projects, but they need to respect the rights of property owners, and not use eminent domain to roll over them.

That seems quite clear and fair to us, but David Merkel of the League of Arizona Cities and Towns is baffled. “I wanted to hear the Supreme Court say who was right and who was wrong and they decided not to do that,” Merkel told the Tribune's Garin Groff.

We'd like to help clear up Merkel's confusion: Tempe was wrong, and the holdout property owners who resisted the city's effort to strong-arm them through eminent domain were right. There.

Of course, with a bunch of lawyers involved in the Marketplace case, the confusion is bound to continue. We would hope that Tempe's elected officials would take the Supreme Court's brushing aside this case as a strong hint they should do the same.

That doesn't mean abandoning a worthy project. It just means doing it right.

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