The three properties were located in north Scottsdale in an area known as Dynamite Hills.  They consisted of about 25 acres.  The properties did not have paved access or water and sewer. The City filed these actions 4 years ago, and now will have to pay four years of interest on top of the settlement amount for each property.  Each of the properties will receive about double the City's original appraisal, plus the four years on interest.

For example, the Journal reports that another couple has fought for compensation for seven years and has been under surveillance ever since.

Thank goodness we have the Fifth Amendment in the United States and a judiciary that is willing to ensure that property owners can have a fair jury trial to determine just compensation.  A property owner can stand up to various sorts of  government projects as unconstitutional:  urban renewal projects have been stopped when courts have found that they do not serve a public purpose.  And even in questionable types of takings, such as new baseball stadiums that have been constructed using public monies, ie., the Washington Nationals new ballpark, property owners have been fairly compensated for the takings of their properties. 

The jury award was the largest award in the history or Arizona trials in eminent domain actions. This was also one of the largest jury verdicts in the United States for trials that occurred in 2008.

 The City had condemned Toll Brothers' land that Toll had planned to development into a high-end residential single family community.  Toll's land was condemned for the McDowell Sonoran Preserve, a  project where the City wished to preserve desert land in its natural state and prohibit development.The City had appraised the 383 acres for  $82,000 per acre or  about $31,000,000. 

The jury rejected the City's appraisal, and found that the fair market value of the land was about $214,000 per acre, or $82,000,000. Although the City threatened to appeal, the City ultimately realized that the jury's decision was fair and that it did not have a viable appeal.

When a municipality starts talking about using its "planning power" to acquire property watch-out.  That is really a euphemism for an unconstitutional taking of property without just compensation.  Often, a City will try to exact property from developer's during the zoning process, knowing that the developer may need the cooperation of the city during the land entitlement process.  A city will use this to its advantage and require a developer to give up land for reasons that may be completely unrelated to the zoning and use of the property.  The only way that such unconstitutional activity can be stopped is for the developer to stand up to the city and refuse to dedicate the land.  Even if that means having to fight the city in court. 

Read more  

The ability to use planning powers to acquire private property is limited.  Announcing its intention prior to a planning request and on the eve of a private purchase of the property may subject a municipality's actions to closer scrutiny if the property owner challenges the municipality's actions 

For more, read East Valley Tribune - "Scottsdale Preserve Condemnation"

It is likely that any appeal will cause Toll to file a cross-appeal, which could have the effect of increasing the City's exposure to $120,000,000.

If the City uses good management practices, it will simply pay the judgment and not appeal.   

This is not surprising  to Dale Zeitlin, who represents property owners in condemnation cases, because urban renewal has been used as a tool by developers and cities to force owners to sell their properties for less than fair market value. 

Dale Zeitlin, who represents  one of the largest properties that is being condemned, asked the court to produce the agreement because it could have the effect of prejudicing his client's right to a fair trial on the issue of just compensation.

The court did the right thing and ordered the production of the secret agreement.

The jury deliberated for two days before reaching its verdict.

The jury reached a fair and reasonable result and I applaud the jury for doing so.

The City ignored the fact that   the desert and mountains were not created by the City. Oops!

The jury saw through the City's argument.  The jury system works again.

For more, read East Valley Tribune -  "Court Rejects Gilbert..."

For more, read Inversecondemnation.com - "Court Strikes Delegation..."]]>The court saw through what was a thinly veiled outright delegation of the county's power to condemn to the developer.  While property is often condemned in connection with private projects, the power to condemn property for public use and necessity is a power granted to governmental entities and courts require that the governmental entities retain some real and substantive control over the process. ]]> http://www.beyondfairmarketvalue.com/2008/01/articles/cases/delegation-of-power-to-condemn-is-limited/ http://www.beyondfairmarketvalue.com/2008/01/articles/cases/delegation-of-power-to-condemn-is-limited/ Cases Thu, 24 Jan 2008 16:13:30 -0700 dale@zeitlinlaw.com (Dale Zeitlin)