City of Phoenix v. Superior Court, Maricopa County, 16605-SA

• Decision Date: 15 September 1983
• Docket Number: No. 16605-SA,16605-SA
• Parties: CITY OF PHOENIX, a municipal corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable William T. Moroney, judge thereof; Hurley Trust Company, an Arizona corporation; Jane Hurley Haney, Conservator of the Estate of John Cornelius Hurley; Irving Shuman, a single man; Joel D. Baker and Jane Doe Baker, his wife; Karl Nilson and Mary Beth Nilson, husband and wife; Doyle Roberson and Marjorie Roberson, husband and wife, Respondents.
• Court: Arizona Supreme Court

Page 387

671 P.2d 387

137 Ariz. 409

CITY OF PHOENIX, a municipal corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable William T. Moroney, judge thereof; Hurley Trust Company, an Arizona corporation; Jane Hurley Haney, Conservator of the Estate of John Cornelius Hurley; Irving Shuman, a single man; Joel D. Baker and Jane Doe Baker, his wife; Karl Nilson and Mary Beth Nilson, husband and wife; Doyle Roberson and Marjorie Roberson, husband and wife, Respondents.

No. 16605-SA.

Supreme Court of Arizona, In Banc.

Sept. 15, 1983.

Andy Baumert, City Atty. by Robert A. Slonaker, Phoenix, for petitioner.

DeConcini, McDonald, Brammer, Yetwin & Lacy by Douglas G. Zimmerman and James W. Hill, Phoenix, for respondents Moroney, Hurley Trust, Haney, Shuman.

Johnson & Shelley by J. LaMar Shelley, Mesa, for amicus curiae League of Arizona Cities and Towns.

Jennings, Strouss & Salmon by Jay C. Stuckey, Jr., Stephen C. Earl, Phoenix, for amicus curiae Trammel Crow Co.

FELDMAN, Justice.

Petitioner (the City) brings this special action proceeding alleging that the respondent trial judge acted in excess of his authority and jurisdiction or abused his discretion in a condemnation action by denying the City's application for immediate possession of land owned or possessed by the real parties in interest (property owners). Finding that the petition presented important questions of general public interest and that there is no remedy by appeal, we accepted jurisdiction. We have such jurisdiction under Ariz. Const. art. 6, § 5, and Ariz.R.Sp.Act. 4, 17A A.R.S.

The City sought to condemn the property in issue under authority granted in A.R.S. §§ 36-1471 to -1491 for slum clearance and redevelopment and to gain immediate possession of the property under § 12-1116. ¹ A prerequisite to the exercise of the powers of eminent domain for slum clearance and redevelopment is that the municipality adopt a resolution finding that a slum or blighted area exists, § 36-1473, and that the property to be condemned is "necessary for or in connection with a redevelopment project," § 36-1478. The City Council adopted such a resolution, but the trial judge refused to grant the City's application for immediate possession, ruling that:

Upon evidence presented to the Court, the Court finds that the subject property is not a part of a blighted area, nor part of a slum area....

The ultimate issue before this court, therefore, is whether the trial judge acted properly in finding that the subject property was not a part of a slum or blighted area in the face of the City's adoption of a resolution to the contrary. This issue poses the question of whether the determination that property is within a slum or blighted area is a legislative or judicial question.

The City argues here that it is empowered by law to condemn property for redevelopment of slum or blighted areas and the subject property is necessary for such a redevelopment project. The City Council had made an express finding to that effect and claims that the determination of the existence of blight is essentially a determination of the necessity of the taking and is a legislative question subject to only extremely limited review by the courts. Thus, the City contends that the trial court abused its discretion in finding that there was no blight and that, therefore, the property could not be condemned. The property owners, on the other hand, argue that the City is not empowered to condemn land unless it is used for a public purpose, and that if there is no blight, redevelopment is not for a public purpose. They contend, therefore, that the determination of the existence of "blight" essentially puts in question the existence of public purpose, which is a judicial and not a legislative question. We disagree with both positions. A review of the division of judicial and legislative authority in eminent domain proceedings is helpful in the resolution of this issue and other minor issues raised in this special action.

At the outset, we note that generally no condemning body may exercise the power of eminent domain unless the property which is to be taken is to be put to a "public use." Ariz. Const., art. 2, § 17. If put in issue, "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." Id.

As stated above, municipalities are empowered to acquire property for "slum clearance and redevelopment." See A.R.S. §§ 36-1471 to -1491. The legislature has asserted that acquisition of property pursuant to the cited slum clearance and redevelopment provisions "are public uses and purposes for which public money may be expended and the power of eminent domain exercised." A.R.S. § 36-1472(4). Since the statutory assertion directly contradicts the constitutional injunction that the question of public use "shall be a judicial question" determined "without regard to any legislative assertion that the use is public," we shall proceed to do as the constitution commands and disregard the quoted provisions of A.R.S. § 36-1472(4). It is generally accepted, however, that the taking of property in a so-called slum or blighted area for the purpose of clearing and "redevelopment," including sale before or after reconstruction to a private person or entity for operation of a public or private business, is a "public use." See Cordova v. City of Tucson, 16 Ariz.App. 447, 449, 494 P.2d 52, 54 (1972); 2A Nichols, Eminent Domain § 7.51561 (3d ed. 1981). We see no reason to depart from this rule.

Although not expressed in our constitution, the exercise of the power of eminent domain is also conditioned upon a showing that the property is "needed" for that use. A.R.S. § 12-1116(C); 1 Nichols, supra, § 4.11. With respect to "slum clearance," the legislature has expressly conditioned the exercise of the power of eminent domain upon a determination that the property is "necessary for or in connection with a redevelopment project." A.R.S. § 36-1478. To help in the process, the legislature has declared that there exist within our municipalities "slum and blighted areas," that these are "a serious and growing menace, injurious and inimical to the public health, safety, morals and welfare" (A.R.S. § 36-1472(1)) and contribute to the "spread of disease and crime," thus requiring excessive expenditures of public money and constituting "an economic and social liability" which "substantially impairs or arrests the sound growth of municipalities ...." Id., subsec. (2). Therefore, the legislature has declared that the necessity for the statute's authorizing taking of property for redevelopment of slum and blighted areas is "a matter of legislative determination." Id., subsec. (5).

Of course, the legislature's statement that something is "a matter of legislative determination" does not make it so if it is a matter of judicial determination. However, we agree with the legislature that the question of necessity of a taking is essentially legislative in nature and that a legislative declaration of necessity should be given weight. Citizens Utilities Water Co. v. Superior Court, 108 Ariz. 296, 299, 497 P.2d 55, 58, cert. denied, 409 U.S. 1022, 93 S.Ct. 462, 34 L.Ed.2d 314 (1972); Mosher v. City of Phoenix, 39 Ariz. 470, 482, 7 P.2d 622, 626 (1932), modified, In re Forsstrom, 44 Ariz. 472, 38 P.2d 878 (1934); City of Phoenix v. McCullough, 24 Ariz.App. 109, 114, 536 P.2d 230, 235 (1975); 1 Nichols, supra, § 4.11. Notwithstanding this rule, however, the courts have reviewed the evidence presented to determine whether a municipality's declaration of necessity was arbitrary or capricious. Citizens Utilities Water Co. v. Superior Court, supra. Our court of appeals correctly stated the rule as follows:

[A] condemnor's determination of necessity should not be disturbed on judicial review in the absence of fraud or arbitrary and capricious conduct.

City of Phoenix v. McCullough, 24 Ariz.App. at 114, 536 P.2d at 235. See also 1 Nichols, supra, §§ 4.11 and .

The trial judge, however, did not hold that the acquisition of the parcel at issue was for a private rather than a public use, nor that the acquisition of the property was unnecessary. He held, rather, that the property "is not a part of a blighted area, nor part of a slum area as those terms are defined [in the statute]." We believe that the finding that an area is a slum or blighted is an inquiry somewhat different from the issues of public use or necessity. By the very wording of the statute the municipality is required to make an express "finding" that a slum or blighted area exists as a prerequisite to the municipality's use of any of the powers conferred by the slum clearance and redevelopment act. A.R.S. § 36-1473. ²

Is this a determination analogous to that determination of "necessity", so that it is a legislative, rather than judicial, question? We note that the express words of the statute charge the governing body of the municipality, and not the judiciary, with the obligation and power to make the "finding" that is a prerequisite for the exercise of the power to condemn. In this connection, we agree with the words of the Washington Supreme Court:

[T]he conclusion of the trial court on the issue of blight (likewise, the conclusion of this court) is not material, as neither this court nor the superior court has been designated by the legislature to determine from the evidence submitted whether or not an area is "blighted." The legislature has designated "the local governing body" (City Council) to make that determination.

Apostle v. City of Seattle, 70 Wash.2d 59, 64, 422 P.2d 289, 292 (1966). See also Tucson Community Development and Design Center, Inc. v. City of Tucson, 131 Ariz. 454, 459, 641 P.2d 1298, 1303 (App.1982).

Moreover, we believe that the nature of the determination is better suited...