Valley's eyes on Tempe effort after U.S. ruling
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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.
The condemnation fight comes just weeks after the U.S. Supreme Court broadened the government's right to take land from private owners.
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.
Tempe doesn't need to take private property to clean up pollution, the lawyer said.
"If you have hot spots of methane, do you drill a vent (to remove the gas) or do you condemn 200 acres?" Hirsch said. Communities "deal with this every day of the week without clearing out businesses."
Tempe, however, argues that the case is a classic example of how a city can use its eminent domain powers for public good. While some industrial businesses have thrived there, the 214-acre site is riddled with pollution, the city's lawyer says.
"If this area doesn't meet slum and blight, nothing does," said Jim Braselton, an attorney who represents Tempe.
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.
There are also safety concerns.
At least two major fires have flared in the area and the Tempe firefighters union president told the City Council that access problems and pollution create "substantial hazards."
"In order to clean up this property, you need to assemble the properties into one parcel under one ownership," Braselton said, adding that the planned mall site has about 100 lots. "If you have holdouts, you can't do redevelopment. You have a hodgepodge."
Braselton tried to distance the Tempe case from the brake shop saga. In the Mesa case, judges questioned whether the repair shop was shoehorned into a redevelopment area merely to justify taking the property from its owner.
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.
Meanwhile, it's unclear how the Supreme Court's June decision - which was argued by an affiliate of the Institute for Justice, an Arizona private property rights proponent - could affect the Tempe case.
The court ruled that the economic benefits of a private development could outweigh private property rights even if an area isn't blighted.
Reach the reporter at jahna [email protected] or (602) 444-7949.Arizona Republic
