I'm not sure why the Legislature thought
it was necessary to adopt this statutory definition,
but it does appear to give the property owner
an added measure of certainty about the process.
These new requirements do not radically change
the process, but they do give property owners
and tenants the right to specific notice from
the government body prior to the government
body filing a lawsuit to condemn the property.
They also require the government body to formally
offer to purchase the property (although this
often occurred anyway). Perhaps with these
additional steps, the process of condemnation
will be less mysterious, and therefore less
intimidating, to property owners and tenants.
The question of whether the use for which
the government wants your property is a "public
use" is another matter altogether. As
I said earlier, some people are surprised
to learn that the government can acquire private
property through condemnation and sell it
to another private party if the conditions
are right. This type of government action
is typically seen in the redevelopment of
"blighted" areas. Such a case last
year in Mesa, Arizona got some national attention.
The city wanted to acquire several parcels
of property near the center of town so that
they could be redeveloped. One of those parcels,
however, is owned by the Bailey family, the
operators of an auto repair business, who
took exception to being forced out of their
long-time location in favor of another business.
The Baileys contested the condemnation and
got a ruling from the Arizona Court of Appeals
that says there are limits on what is a "public
use."
The Court of Appeals said that "the
mere fact that the property being taken will
ultimately be conveyed to a private party
does not, by itself, dictate a conclusion
that the use is private and not public....
[However] not every combination of perceived
public benefits and advantages will satisfy
the ‘public use' requirement...."
The Court went on to conclude that the Arizona
Constitution permits a condemnation for redevelopment
"only when the public characteristics
or benefits of the intended use substantially
outweigh the private nature of that use...."
That doesn't sound like a rule that will
be simple to apply. In the case of the Baileys,
the Court seemed to be saying that the fact
that the redevelopment would ultimately consist
entirely of private businesses and was driven
by the city's desire to provide "an attractive
and revitalized ‘gateway' to [its] downtown
area" meant it was not sufficiently "public"
to fit within the constitutional power of
condemnation. Seems like it could be pretty
subjective, but that's how these things end
up sometimes.
What is surprising to me is that now, less
than a year later, the same process appears
to be underway next door to Mesa, in Tempe.
A private developer, with the city's backing,
is trying to assemble a number of properties
in an area that is suddenly desirable for
commercial development because of the proximity
of a recently constructed freeway. The city
has promised to use condemnation to acquire
the property of anyone in the area who won't
sell to the developer. The mayor of Tempe
was quoted recently as saying that "[t]he
cleanup of [the subject area] is the most
significant project we are undertaking. It's
the ugliest eyesore that exists anywhere near
a freeway." Translation: because of the
new freeway, the city wants to clean up an
area inhabited by wrecking yards, construction
yards, and the like that are suddenly visible
to large numbers of passing motorists. If
the decision in the Bailey family's case holds
up, I think the city is going to need a better
reason than that to convince a court that
the intended use is sufficiently "public"
to allow the city to use the power of condemnation.
How these types of situations will be resolved
is obviously difficult to predict. The particular
circumstances will be important in each case.
There will be situations where the government
can take property by condemnation and then
sell it to other private owners. There will
also be situations, however, perhaps more
often than before, where the government or
the private proponents of a project will not
be able to use the power of condemnation,
and will have to convince the existing owners
to sell by simply offering them a price that
is too good to refuse.
Remember, though, that this discussion really
only applies when the intended use is redevelopment.
The courts have never been willing to second
guess a government on whether a new road,
school, jail, or such thing is really needed.
If it is a "public use," then the
government will be allowed to acquire the
property, for just compensation.
