Cordova v. City of Tucson, 2
| Decision Date | 29 February 1972 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 16 Ariz.App. 447,494 P.2d 52 |
| Parties | Maria CORDOVA and Raul Navarette Cordova, Appellants, v. CITY OF TUCSON, a municipal corporation, Appellee. 1108. |
| Court | Arizona Court of Appeals |
Murphy, Vinson & Hazlett, by Eric D. Johnson, Tucson, for appellants.
Herbert E. Williams, Tucson City Atty., by Miller, Pitt & Feldman, P.C., James C. Carruth, Special Counsel, Tucson, for appellee.
This appeal involves two condemnation actions which were consolidated in the trial court. Appellee, the plaintiff below, moved for summary judgment on the issue of the right to condemn. This issue was decided in appellee's favor and the case was tried on the issue of damages only, resulting in a judgment for a total sum of $135,250.
Appellants assert that the city does not have the right to condemn their property since the improvements on the land are of great historical value. The record before us does not disclose to us the exact nature of this historical value.
Pursuant to A.R.S. § 36--1471, et seq., the City of Tucson adopted a resolution on or about the 3rd day of April, 1967, which resolved that a slum or blighted area exists within the City of Tucson and that the redevelopment of such area is necessary in the interests of the public health, safety, morals and welfare of the residents of the City of Tucson. The resolution authorized and ordered the condemnation of the property within the area necessary for the completion of the Pueblo Center Redevelopment Project No. Arizona R--8. The appellants' properties are situated within said area. The appellee agrees that the property in question has great historic value, and has admitted that the property in question will be preserved in its present condition and that title to said property will be retained in the City of Tucson. The intention of the City of Tucson is to lease the property to the Tucson Art Center, which, in turn, has resolved to maintain and preserve appellants' properties.
Appellants assert that their contention that the use is not a 'public use' is substantiated by the following: (1) The City has admitted that their property is not 'slum property', (2) their property is not going to be torn down, (3) the property is going to be leased to a private corporation and (4) the one block where their property is located is the only area in the slum program which is north of the City Hall and has not been treated in the same fashion--complete razing--as was done with all of the land in the urban renewal area south of City Hall.
The exercise by a condemning authority of its power of eminent domain is conditional upon the proposed use being a 'public use.' Ariz.Const. art. 2, § 17; Oury v. Goodwin, 3 Ariz. 255, 26 P. 376 (1891). Whether the contemplated use is a 'public use' is a judicial question to be determined without regard to any legislative assertion that the use is public. Ariz.Const. art. 2, § 17, A.R.S.
A.R.S. § 36--1471, subsec. 18, defines 'slum area' as follows:
"Slum area' means an area in which a majority of the structures are residential, or an area in which there is a predominance of buildings or improvements, whether residential or nonresidential, and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency or crime, and is detrimental to the public health, safety, morals and welfare.'
Appellants' contention that the City has admitted tht their property is not 'slum property' is not supported by the record unless appellants mean that the fact that the City is not razing their property constitutes an admission that it is not 'slum property.' In any event the vital question is not whether appellants' property is 'slum property' but rather, is their property in a 'slum area' as defined by A.R.S. § 36--1471, subsec. 18? This issue was decided by the court adversely to appellants. The transcript of the proceedings in the trial court was not made a part of the appellate record nor is there anything...
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City of Phoenix v. Superior Court, Maricopa County, 16605-SA
...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 Although not expressed in ou......
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City of Tucson v. Royal Orchid Corp.
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