An initiative to restrict Mesa’s ability to seize private property won’t hold up under state law, according to a written opinion Friday by City Attorney Debbie Spinner.
Proponents of the initiative disagreed.
An initiative on Mesa’s March 9 ballot would add provisions to the city charter requiring the City Council to approve any land seizure at a special public hearing, and forbid the city from selling seized private property to a corporation, developer or resident for 10 years.
It also says the city must adhere to the Arizona Constitution when using eminent domain, which is the government’s power to take private property for public use.
In the legal opinion, Spinner wrote: "Eminent domain is a sovereign power delegated by the state and neither the citizens nor the City Council can alter that delegated power." Spinner couldn’t be reached late Friday.
Jan Hibbard, cochairwoman of the group Thwarting Abuse of Power and Spending, said the initiative passes muster because it has been checked extensively by constitutional lawyers.
Last month, the group filed 8,438 signatures to put the initiative on the ballot.
"You know how city attorney opinions go — they’re a dime a dozen," Hibbard said. "Debbie Spinner’s opinion doesn’t mean anything to me."
The legal opinion will not remove the initiative from the ballot, said Joe Padilla, the assistant city attorney.
The next issue will be to determine who can launch a legal challenge if the initiative is successful, Padilla said.
Spinner cited several cases to support her opinion, including a 1945 Nebraska Supreme Court ruling that eminent domain is subject solely to the state’s control and regulation.
The initiative was driven in part by Mesa’s failed attempt to seize a small brake shop downtown for a city redevelopment project.
In October, the state Court of Appeals ruled against the city’s attempt to take Bailey Brake Service.
Owner Randy Bailey’s plight caught widespread attention and was featured on CBS’ "60 Minutes."