Section 1.2 Constitutional Provisions

• Library: Eminent Domain 3rd Edition 2013

Underlying all state constitutional and statutory eminent domain provisions is the fifth amendment to the United States Constitution. It provides, in part: “No person . . . shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The fourteenth amendment imposes similar requirements on the states by providing: “nor shall any State deprive a person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

However, according to the Ninth Circuit, a party claiming an unconstitutional taking is limited to the remedy provided by the Takings Clause and is not entitled to relief under the Substantive Due Process Clause.

Madison v. Graham, 316 F.3d 867 (9th Cir. 2002) (challenging surface waters statute)

Esplanade Properties, LLC v. City of Seattle, 307 F.3d 978 (9th Cir. 2002) (challenging denial of development approval)

Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (challenging building codes)

State constitutional provisions and statutes relating to eminent domain are not limited by, but must be consistent with, the United States Constitution.

Cienega Cattle Co. v. Atkins, 59 Ariz. 287, 126 P.2d 481 (1942) (taking for private use not prohibited by federal constitution)

De Hansen v. District Court, 11 Ariz. 379, 94 P. 1125 (1908) (statutes which violate the fifth amendment are void)

The Arizona Constitution sets forth specific criteria to control the exercise of the power of eminent domain. Article 2, Section 17 provides:

Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes or ditches, on or across the...