Arizona Court of Appeals Division One Holds That City Cannot Condemn Land for Park Purposes Outside its Territorial Limits.

Harnish owned an undeveloped 5-acre parcel of land outside the City of Phoenix, in unincorporated Maricopa County. In 2001 the Phoenix City Council approved an ordinance to acquire 22 parcels of land for a nature preserve, including the 5-acre lot owned by Harnish. After failing to reach agreement an agreement to buy the parcel from Harnish, the City filed an eminent domain complaint in 2003. The Superior Court ruled that under ARS 9-511 the City could condemn the land because it fulfills a “public park purpose.” A jury subsequently fixed the amount of Harnish’s “just compensation at $590,527” and Harnish appealed.

Division One first held that the words “public park” have their ordinary, dictionary meaning and that the nature preserve here falls within that definition. The Court then held, however, that Section 9-511 does not grant the City the power to condemn the land exclusively for public park purposes. The Court confirmed that the power of eminent domain is vested in the State and that cities have only such eminent domain powers that are statutorily delegated to them. Then, parsing the statute’s conjunctions, and considering the placement of the statute within Chapter 5 titled “Public Utilities,” the Court concluded that Section 9-511 only allows a city to condemn land outside its boundaries for park purposes when that land is also used simultaneously for public utility purposes. Finally, the Court held that the City charter cannot authorize the condemnation of the Harnish land, because state law, as previously described, prohibits such condemnations.

Because the Court held that the City lacked the power to condemn the land, it reversed the Superior Court and remanded for entry of judgment in favor of Harnish, awarding her costs and fees for both trial and appeal. Judge Gemmill wrote the opinion, in which Judges Kessler and Orozco concurred.