City Lacked Authority to Condemn Land for Suburban Park

Wednesday, January 09, 2019 5:49 am
January 2019 - Volume 47 Number 1

Phoenix v. Harnish , 1 CA-CV 05-0023, 2006 Ariz. App. Lexis 166 (Dec. 28, 2006)

Facts: In 2000, Sherry Harnish (Harnish) purchased a five acre parcel of property (the Property) outside the Phoenix city limits. The following year, the Phoenix City Council adopted an ordinance authorizing the acquisition of land --- including the Property --- for a nature preserve (the Preserve). In 2003 --- after unsuccessfully negotiating to purchase the Property --- the City of Phoenix (the City) filed a complaint for eminent domain, and a trial court granted the City’s application for immediate possession of the Property. Harnish appealed the decision.

A.R.S. § 9-511 provides, in part, that a “municipality may exercise the right of eminent domain either within or without its corporate limits for ... public utility and public park purposes.” The trial court relied on the statute as authorization for the City’s condemnation of the property for the Preserve as a “public park purpose.”

Harnish first argued that the proposed Preserve did not qualify as a “park” and did not a[..]