A judge in Phoenix has ruled against the City of Tempe in its effort to condemn thirteen properties to make way for a shopping mall.
The ruling follows a two-week hearing in August where Tempe’s lawyers argued that combustible methane gas and other pollution lurks beneath the surface of the former Superfund site near Rio Salado Parkway and McClintock Drive.
The property owners’ attorneys, however, argued that the Tempe Marketplace mall site isn’t an altruistic civic project — it’s a sales tax generator conceived and bankrolled by developer Mira Vista Holdings.
Judge Fields sided with the landowners and gave little weight to Tempe’s assertions that the area was an environmental time bomb.
While the judge agreed that the area should be cleaned up, Fields noted that the state’s sole risk assessment of the area concluded that it wasn’t a health hazard. The city’s documentation about methane hot spots was at least 15 years old, and the methane had probably degraded since then, the judge wrote. Plus, a developer testified that unstable soil, not environmental hazards, were the biggest problem on the site.
Tempe failed to show that the mall project constituted a “public use,” Fields said.
“The private developer Mira Vista Holdings and its principals are the driving forces behind the project not the Plaintiff, City of Tempe.” Fields wrote. “Profit, not the public improvement, is the motivating force for this redevelopment,” he continued.
All I can say is good. Good. Good. Good. After the Supreme Court’s decision in Kelo v. City of New London, many people, myself included, feared that the door had been opened for cities to condemn private property in favor of politically connected developers. Its good to see that there are judges out there willing to say — No, you can’t do that.
And the news is even better:
Field’s ruling will toss cold water on cities that may have been emboldened by the U.S. Supreme Court’s recent ruling against New London, Conn. property owners, said Tim Keller executive director of the Institute for Justice’s Arizona chapter.
In the New London case, the court ruled that the economic benefits of a private development could outweigh private property rights even if the area wasn’t blighted.
In the wake of the U.S. Supreme Court decision, “it will be up to the individual states to protect private property rights,” said Keller, whose group represented the Bailey Brake shop and the New London owners.
“The battle will shift to the states,” he said.
Hopefully, this is the first of many victories for liberty in that battle.
