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Corrigan v. Scottsdale, City of

ELR Citation: 16 ELR 20985
Nos. No. 18239-PR, 720 P.2d 513/149 Ariz. 538, (Ariz., 06/02/1986)

The court holds that a landowner is entitled to monetary damages under the Arizona Constitution for a temporary taking of property due to an invalid zoning ordinance. Absent definitive Supreme Court guidance on the subject of just compensation for a regulatory taking of property, the court holds that it may rely upon the Arizona Constitution. Unlike the Fifth Amendment, Article 2, §17 of the Arizona Constitution not only prohibits a taking without just compensation, it specifically mandates monetary compensation to a deprived landowner. The court holds that the Scottsdale Hillside District zoning ordinance constitutes a taking of private property and that statutory invalidation alone does not constitute adequate compensation. Citing with approval other state cases and Justice Brennan's dissent in San Diego Gas & Electric v. City of San Diego, 11 ELR 20345, the court holds that just compensation does not require full condemnation damages when the taking is reversible, only monetary damagesfor the temporary taking until cured by invalidation of the confiscatory regulation. Next, the court rejects three rationales used to deny monetary damages for takings. Awarding damages does not usurp legislative functions because it affords legislatures the same policy alternatives after invalidation alone. Second, municipalities should be liable for a taking of property as an incentive to sound land planning and should face substantial liability only for "irresponsibly imposed staggering losses." Finally, invalidating zoning ordinances without affording a financial remedy will inadequately deter future takings. Lastly, rather than arbitrarily adopt any of five basic measures of damages for a taking of property, the court holds that damages for temporary taking are to be based upon losses actually suffered in each individual case.

Counsel for Plaintiff-Appellant
James Powers, Timothy Berg, Jane Nicoetti-Jones
Fennemore, Craig, von Ammon, Udall & Powers
Suite 1700, 100 W. Washington St., Phoenix AZ 85003
(602) 257-8700

Counsel for Defendant-Appellee
William E. Farrell
Scottsdale City Attorney
3939 Civic Ctr. Plaza, Scottsdale AZ 85251
(602) 994-2405

HOLOHAN, C.J., GORDON, V.C.J., and HAYS, J., concur.

FELDMAN, J., did not participate in the determination of this matter.