Eminent Domain Guide for Arizona

Arizona Eminent Domain Overview

Are you a property owner impacted by Eminent Domain in Arizona? When it comes to eminent domain, the government is playing in their arena; they do this every day. They know what the rules are, they know how the rules affect them and they know how the rules affect property owners. If the government is taking your land, make sure that you become informed so that you know what you can and cannot do.

In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading to learn about the Arizona eminent domain process, your rights as a property owner and hiring an Arizona eminent domain attorney.

Arizona Eminent Domain Process

In the state of Arizona, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Arizona eminent domain process.

Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.

The majority of eminent domain cases in Arizona meet the requirement for public purpose and necessity. Examples of cases that meet these criteria are: property acquisition for highway improvement projects, and acquisitions for utility projects such as installation of power lines and sewer systems.

If the taking of your property meets the requirements for public necessity or public purpose, then take a look at our chart below to learn more about the eminent domain process in the state of Arizona.

1. Government Announces Project and Properties Affected
Typically during project development, the condemning authority (whether that agency is the Department of Transportation, or a City/County Planning Division, etc.) will hold public meetings to inform the public of the upcoming project and how this project will affect private property.

2. Property Owner Hires Attorney
Depending upon the complexity of the case and the amount of additional damages done to the property, it may be necessary to allow condemnation to occur in order for the property owner to receive just compensation.  If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim.

3. Government Inspects and Values Property
The government has the right to enter the property to examine, map, appraise and survey the property. (§ 12-1116(A)(B)(C))

4. Government Makes Offer to Property Owner and Delivers Appraisal
At least 20 days before filing an action for condemnation, the government is required to provide a written offer to purchase the property. The offer must include the government’s estimate of just compensation for the property taken and damages to any additional parcel. They must also provide the property owner with copies of one or more appraisals that support the amount of compensation. (§ 12-1116(A)(1, 2))

5. Attorney Evaluates Offer
After the condemning authority makes an offer, the property owner’s attorney will evaluate the appraisal and offer to determine if it represents just compensation. If the attorney finds errors in the condeming authority’s valuation, then they will determine how best to proceed.

6. Determine Negotiation Strategy
The attorney will need to assess all damages that were not included in the condeming authority’s valuation and determine the full amount of compensation owed to the property owner.  The attorney will then determine how best to present this information to the condeming authority during the negotiation phase.

7. Select Appraiser to Determine True Property Value
The property owner may select an appraiser from a government-maintained approved list of appraisers for a second appraisal. This may be done at the government’s expense. (§ 12-1130(A))

Selecting an appraiser who can accurately value your property and assess the damages to any remaining parcel is one of the most critical steps in any eminent domain claim. Many times, property owners try to take matters into their own hands, and unknowingly hire an inexperienced appraiser. Unfortunately, this step could ruin a good claim. Visit our Resources page, under hiring experts in eminent domain to read an example of how hiring the wrong appraiser can hurt your claim. Make sure you consult with an eminent domain attorney before hiring an appraiser on your own.

8. Property Owner Settles With Government
If the property owner signs the final settlement papers, they waive their right to pursue additional damages and the case is complete.

9. Deed is Transferred
Once the final settlement papers are executed by the property owner, the deed is transferred to the condemning authority.  It is at this time that ownership is transferred from the property owner to the condeming authority.

10. Owner’s Case is Done
The owner is paid in full, the condeming authority owns the property, and the owner’s case is completely done. The property owner can no longer file a claim to challenge the taking or to receive additional compensation.

11.Property Owner Does Not Accept Offer
If, after negotiations, the property owner is not satisfied with the amount offered by the condeming authority, they can refuse the offer and allow condemnation to occur.

12. Government Initiates Eminent Domain Proceeding
The government must initiate the eminent domain proceeding in the superior court of the county the property resides in. At the time of filing the complaint, or at anytime thereafter, the government may apply to the court for an order granting immediate possession of the property. If at the hearing, the court determines the taking is necessary, it may order the government to submit a direct payment to the property owner, or a deposit of likely damages with the state treasury or clerk of courts. This would occur prior to the final judgment. Then, subject to court approval, the deposit may be released to the property owner. (§ 12-1116(A))

13. Property Owner Pursues Claim for Additional Damages in the Eminent Domain Proceeding
The government will initiate the eminent domain proceeding in order to acquire the property.  A hearing or trial will be scheduled to allow the property owner’s attorney to present their case to determine the amount of just compensation owed to the property owner.

14. Property Owner has Right to Jury to Decide Amount of Damages to be Paid
If requested by property owner, the final award of damages is determined by a jury trial. (§ 12-1122 (A))

The eminent domain process in the state of Arizona is complicated, and if you are undergoing eminent domain and want to make sure you are justly compensated, you should speak to an eminent domain attorney. Speaking to an eminent domain attorney regarding your case will keep you informed of your rights, the eminent domain process, and whether or not your attorney’s fees will be paid for by the state of Arizona.

Arizona Property Rights

The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.

Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership.  The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity.  While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.

The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws.  The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain.  The Castle Coalition gave Arizona a B+ for property rights, they say:

“The Arizona Legislature responded to Kelo by passing House Bill 2675 (2006), an extremely strong piece of blight reform legislation. The bill would have required a condemning authority to prove by “clear and convincing evidence” that a property is maintained in a slum condition, and blight designations could be made only on a property-by-property basis. It also prohibited the use of eminent domain for economic development. Unfortunately, however, the governor vetoed the bill.”

“But the people of Arizona would not let their governor have the last word when it came to protecting their liberties. Proposition 207 was filed in response to the veto and the statutory reform was reborn through citizen initiative. The language, very similar to HB 2675, appeared on the ballot last fall and passed by a substantial margin.”

“The Private Property Rights Protection Act (§ 12-1136) accomplished many necessary eminent domain reforms. Most importantly, the initiative significantly limited the scope of activities that could qualify as a public use. Rather than creating an exhaustive list of approved uses, Arizona’s new definition of public use simply requires that the general public retain “possession, occupation, and enjoyment of the land.” With this approach the statute encompasses the traditional uses of eminent domain, with allowances for acquisition of property to handle utilities, unsafe structures, or abandoned properties, but not for benefits from economic development. The next step is to include these protections in the state constitution.”

“Proposition 207 did not amend Arizona’s Slum Clearance and Redevelopment chapter, so extremely broad definitions of “blighted area” and “slum area” were not changed. But after the recent reforms, all eminent domain actions now require a judicial determination that the use is, in fact, “public.” In the case of slum clearance and redevelopment, the government must present clear and convincing evidence that each and every targeted parcel poses a direct threat to the public, such that eminent domain is necessary to eliminate the threat. With these new protections, as well as heightened compensation requirements, the citizens of Arizona have fought back against eminent domain abuse and can worry less about developers and city officials kicking them out of their homes.”

Castle Coalition

Hiring an Eminent Domain Attorney in Arizona

If your instincts tell you that the offer from the government is low, then it probably is. However, determining just compensation usually requires an attorney to identify damages and help guide you through the Arizona eminent domain process. Additionally, other experts are needed such as an appraiser and maybe an engineer or planner to provide evidence and expert testimony on your behalf.

Most eminent domain attorneys work on a contingent fee basis. With this fee structure, the attorney assumes the risk for earning a fee. Property owners are generally only responsible for paying costs, with the primary cost being the appraiser who values the property. Because of the contingent fee structure, most eminent domain attorneys will conduct a free case evaluation for property owners prior to recommending representation.

Are my Attorney’s Fees and Costs Recoverable in Eminent Domain in Arizona?

Attorney’s fees and costs may be paid for by the government in Arizona if the property being acquired is residential and owner-occupied (AZ § 12-1130 (D)). Additionally, attorney’s fees may be awarded by the court if the government abandons a proceeding, or if the court determines that the property may not be acquired.

Arizona eminent domain statute also states that if the proceeding is dismissed because both parties agree to settle outside of court, then each party shall pay their own costs (AZ § 12-1129(B)).

If you’re affected by eminent domain, you should obtain a consultation so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation.

Very few attorneys can claim expertise in the area of eminent domain law. Make sure you consult with an eminent domain trial attorney who can effectively identify damages and select the necessary experts. Your attorney should also be able to interface with the condemning authority and be willing to take your case to trial if negotiations can not be reached. 

Summary

The state of Arizona has taken significant measures in protecting its citizens, but making these changes as part of the state constitution would solidify their existence. Significantly tightening the definitions of blight and public use provides significant protection for property owners, as well as the safety of parcel by parcel deeming for blighted properties. Click to read more about the Private Property Rights Protection Act.