Court decision sends bad signal - East Valley Tribune: Business

Court decision sends bad signal

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Posted: Sunday, June 26, 2005 7:05 am | Updated: 9:42 am, Fri Oct 7, 2011.

After 87 years living in the same house, it looks like Wilhelmina Dery of New London, Conn., will have to move soon.

She was on the losing end of a 5-4 U.S. Supreme Court decision Thursday that allows local governments to condemn homes or businesses to be redeveloped for private uses — as long as those uses are deemed more lucrative. There is debate as to how much this ruling will directly affect Arizona, but the decision sends a distressing signal.

Dery was born in the home in 1918. A son lives next door. The home is by all accounts well-maintained.

New London on the other hand is a bit down at the heels. The state declared the town a "distressed municipality."

As part of an effort to revitalize the community, a development corporation came up with a plan that includes developing Dery’s property as part of a research park.

What the court did, it seems, is expand on powers granted in a 51-year-old case. That case found the Fifth Amendment of United States Constitution allowed the District of Columbia to take properties to clear a slum. Justice William Douglas wrote the government had the right to take blighted private property — even if it was turned over to other private ownership.

Under the new standard a property needn’t be in disrepair. The standard is only that more taxes could — not necessarily would, but could — accrue.

We’ve had two high-profile East Valley cases involving eminent domain in recent years. There was the Bailey Brake Shop case in Mesa, where the city wanted to condemn Randy Bailey’s business to make room for private development. Bailey won in the state appeals court, and the case was decided on a provision in the Arizona Constitution.

Tempe is trying to condemn properties to make room for the Tempe Marketplace. The city’s legal claim is based on cleaning up an environmental hazard. That argument seems to be within the powers granted by previous U.S. Supreme Court rulings.

State courts still can restrict cities’ power to condemn beyond what the U.S. Supreme Court ruling allows. That is the hope of the Institute for Justice, which won the Bailey case and represented Dery and the others in the Connecticut case.

The most unsettling aspect of the case is this: The concept of economic development already is being expanded to include projects that range from funding the arts to building cool apartments to curing diseases.

Now there may be expanded power to go with it.

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