Private Property Rights
WHAT DOES THE ARIZONA CONSTITUTION SAY ABOUT EMINENT DOMAIN?
Article 2, Section 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.
Proposition 207 in 2006: The Private Property Rights Protection Act
Arizona Proposition 207, a 2006 ballot initiative officially titled the “Private Property Rights Protection Act”, requires the government to reimburse land owners when regulations result in a decrease in the property’s value, and also prevents government from exercising eminent domain on behalf of a private party. It was approved by a 64.8% margin. The land use portion of this proposition is similar to Oregon’s 2004 ballot measure, and the eminent domain portion is similar to initiatives advanced in numerous states following the United States Supreme Court’s Kelo v. City of New London decision.
For a comprehensive look at the Private Property Rights Protection Act, see this link to the Arizona Secretary of State’s website.
Arizona State Senate Bill 1366
Former Senator Chuck Gray sponsored and co-sponsors worked on five eminent domain bills, including SB1366. SB1366 was passed by the Arizona Senate and House of Representative and signed by the governor Jan Brewer on June 23, 2010.
- Sets a standard for relocation assistance at the same level as the federal regulations
- Gives both property owners and tenants assurances on what kinds of assistance they will receive when relocated due to eminent domain actions
THE LAW PROVIDES FOR AMENDING SECTIONS 11-961, 11-962, 11-974 AND 28-6993, ARIZONA REVISED STATUTES; AMENDING TITLE 11, CHAPTER 7, ARTICLE 4, ARIZONA REVISED STATUTES, BY ADDING SECTION 11-975; AMENDING TITLE 28, CHAPTER 20, ARTICLE 6, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 28-7104 AND 28-7105; REPEALING TITLE 28, CHAPTER 20, ARTICLE 7, ARIZONA REVISED STATUTES; RELATING TO RELOCATION ASSISTANCE.
Scottsdale City Charter
Article 1: Incorporation, Form of Government, Powers and Boundaries 6
Sec. 3. Powers of city.
The city shall have all the powers granted to municipal corporations and to cities by the constitution and laws of this state and by this charter, together with all the implied powers necessary to carry into execution all the powers granted, and these further rights and powers, to wit:
The city may acquire property within or without its corporate limits for any city purpose, consistent with state law, in fee simple or any lesser interest or estate, by purchase, gift, devise, lease or condemnation, and may sell, lease, mortgage, hold, manage and control such property as its interests may require. Condemnation may be exercised only if it is authorized by this state, if it is for a public use, if the city has exhausted all reasonable options to avoid the use of condemnation, including the negotiation of just compensation, and if its use is narrowly tailored to advance the public use the city contemplates for the property to be acquired. Land use laws that reduce private property rights shall further comply with all Arizona laws relating to diminution in value and just compensation thereof.
WHAT IS EMINENT DOMAIN, JUST COMPENSATION, AND INVERSE CONDEMNATION?
Eminent Domain:
The right of the government to forcibly take private property for public use with payment of just compensation to the property owner.
Just Compensation:
The constitutionally guaranteed right of property owners to receive payment for property taken by eminent domain that places the owner in as good a position financially as before the taking; just compensation is defined as the fair market value of the property taken, plus any incidental damages suffered as a result of the taking.
Inverse Condemnation:
An action brought by a property owner to obtain just compensation when a government action results in a taking of the owner’s property and the government has not commenced formal eminent domain proceedings.
TWO AMENDMENTS TO THE U.S. CONSTITUTION PROTECT PROPERTY OWNERS FROM THE MISUSE OF GOVERNMENT’S POWER OF EMINENT DOMAIN.
Fifth Amendment to the U.S. Constitution:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
14th Amendment to the U.S. Constitution:
Section 1
All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
