takings analysis in Arizona

2023Id. at 485. ¶20 The Court decided the case against the backdrop of Dolan v. City of Tigard, 512 U.S. 374 (1994), in which the United States Supreme Court had held that under the takings clause of the Fifth Amendment, an exaction imposed upon an individual landowner as a condition of development must be related both in nature and extent to the proposed development’s burden on the community.

2018Nollan found the “essential nexus” between “legitimate state interests” and the required easement, which might have 5See Wennerstrom, 169 Ariz. at 496 (Feldman, V.C.J., dissenting) (“The court adopts no specific test for distinguishing between legislative and administrative acts.”). 6 Although AFW argues Gilbert was required to exercise discretion in applying the traffic signal SDF, Redelsperger noted that, in the referendum context, “[t]he more discretion afforded, the more likely the act is legislative.” 207 Ariz. at 434 ¶ 16. 7 AMERICAN FURNITURE v. GILBERT Opinion of the Court removed the

2024Compare Kelo v. City of New London, 545 U.S. 469 , 483–90 (2005) (upholding the taking of a working-class neighborhood to facilitate amenities related to a private business), with Bailey v. Myers, 206 Ariz. 224 , 227 ¶ 12 (App. 2003) (“Taking one person’s property for another person’s private use is plainly prohibited . . . .”). ¶18 In addition to prohibiting government-executed takings for private use, article 2, section 17 prohibits the legislature from authorizing private individuals to take property for private use, except for some enumerated exceptions not implicated here.

2024Compare Kelo v. City of New London, 545 U.S. 469 , 483–90 (2005) (upholding the taking of a working-class neighborhood to facilitate amenities related to a private business), with Bailey v. Myers, 206 Ariz. 224 , 227 ¶ 12 (App. 2003) (“Taking one person’s property for another person’s private use is plainly prohibited . . . .”). ¶18 In addition to prohibiting government-executed takings for private use, article 2, section 17 prohibits the legislature from authorizing private individuals to take property for private use, except for some enumerated exceptions not implicated here.

2018Nollan found the “essential nexus” between “legitimate state interests” and the required easement, which might have 5See Wennerstrom, 169 Ariz. at 496 (Feldman, V.C.J., dissenting) (“The court adopts no specific test for distinguishing between legislative and administrative acts.”). 6 Although AFW argues Gilbert was required to exercise discretion in applying the traffic signal SDF, Redelsperger noted that, in the referendum context, “[t]he more discretion afforded, the more likely the act is legislative.” 207 Ariz. at 434 ¶ 16. 7 AMERICAN FURNITURE v. GILBERT Opinion of the Court removed the

2012Lingle, 544 U.S. at 539 , 125 S.Ct. 2074 ; see also First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987) (explaining that the Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”) (emphasis in the original); see also Ranch 57 v. City of Yuma, 152 Ariz. 218, 225 , 731 P.2d 113, 120 (App.1986) (“Although a zoning ordinance may be a proper exercise of the police power, it

2012Lingle, 544 U.S. at 539 , 125 S.Ct. 2074 ; see also First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987) (explaining that the Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”) (emphasis in the original); see also Ranch 57 v. City of Yuma, 152 Ariz. 218, 225 , 731 P.2d 113, 120 (App.1986) (“Although a zoning ordinance may be a proper exercise of the police power, it

2012Lingle, 544 U.S. at 539 , 125 S.Ct. 2074 ; see also First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987) (explaining that the Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”) (emphasis in the original); see also Ranch 57 v. City of Yuma, 152 Ariz. 218, 225 , 731 P.2d 113, 120 (App.1986) (“Although a zoning ordinance may be a proper exercise of the police power, it

2012Lingle, 544 U.S. at 539 , 125 S.Ct. 2074 ; see also First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987) (explaining that the Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”) (emphasis in the original); see also Ranch 57 v. City of Yuma, 152 Ariz. 218, 225 , 731 P.2d 113, 120 (App.1986) (“Although a zoning ordinance may be a proper exercise of the police power, it

2010Maricopa County v. Superior Court, 170 Ariz. 248, 254 , 823 P.2d 696, 702 (App.1991) (requiring a protectable property interest for a due process claim); Havasu Heights Ranch & Dev.

2010Maricopa County v. Superior Court, 170 Ariz. 248, 254 , 823 P.2d 696, 702 (App.1991) (requiring a protectable property interest for a due process claim); Havasu Heights Ranch & Dev.

2009Id. at ¶¶ 42-45; accord Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1027 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992) (holding that a state may refuse compensation “if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”); In re Water Use Permit Applications, 94 Hawai'i 97 , 9 P.3d 409, 493-95 (2000) (concluding that no property interest existed and denying a takings claim based upon groundwater restrictions).

2009Id. at ¶¶ 42-45; accord Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1027 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992) (holding that a state may refuse compensation “if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”); In re Water Use Permit Applications, 94 Hawai'i 97 , 9 P.3d 409, 493-95 (2000) (concluding that no property interest existed and denying a takings claim based upon groundwater restrictions).

2009Id. at ¶¶ 42-45; accord Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1027 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992) (holding that a state may refuse compensation “if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”); In re Water Use Permit Applications, 94 Hawai'i 97 , 9 P.3d 409, 493-95 (2000) (concluding that no property interest existed and denying a takings claim based upon groundwater restrictions).

2009Id. at ¶¶ 42-45; accord Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1027 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992) (holding that a state may refuse compensation “if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”); In re Water Use Permit Applications, 94 Hawai'i 97 , 9 P.3d 409, 493-95 (2000) (concluding that no property interest existed and denying a takings claim based upon groundwater restrictions).

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

2006See, e.g., Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.Cir.2004) (“It is a settled principle of federal takings law that under the Penn Central analytic framework, the government may defend against liability by claiming that the regulated activity constituted a state law nuisance without regard to the other Penn Central factors.”); Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir.2004) (noting, before engaging in Penn Central analysis, “[w]e could appropriately end our Takings Clause analysis here, as there is no taking if there is no private property in the first place

1995See, e.g., Commercial Builders of N. Cal v. City of Sacramento, 941 F.2d 872 (9th Cir.1991) (applying a takings analysis to an ordinance conditioning building permits on payment of fee to offset burdens of providing low-income housing for workers at such developments), cert. denied, 504 U.S. 931 , 112 S.Ct. 1997 , 118 L.Ed.2d 593 (1992); Blue Jeans Equities W. v. City and County of San Francisco, 3 Cal.App.4th 164 , 4 Cal.Rptr.2d 114 (1992) (applying a takings analysis to an ordinance conditioning building permit on payment of fee for traffic control programs).

1995See, e.g., Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872 (9th Cir.1991) (applying a takings analysis to an ordinance conditioning building permits on payment of fee to offset burdens of providing low-income housing for workers at such developments), cert. denied, 504 U.S. 931 , 112 S.Ct. 1997 , 118 L.Ed.2d 593 (1992); Blue Jeans Equities W. v. City and County of San Francisco, 3 Cal. App.4th 164 , 4 Cal. Rptr.2d 114 (1992) (applying a takings analysis to an ordinance conditioning building permit on payment of fee for traffic control programs).

1995See, White v. Kaibab Road Improvement Dist., 24 Ariz. App. 258 , 537 P.2d 986 (1975) (" White I "), disapproved on other grounds, 113 Ariz. 209 , 550 P.2d 80 (1976) (" White II "); City of Tucson v. Rickles, 15 Ariz. App. 244 , 488 P.2d 180 (1971), vacated on other grounds, 109 Ariz. 82 , 505 P.2d 253 (1973).

1995See, White v. Kaibab Road Improvement Dist., 24 Ariz. App. 258 , 537 P.2d 986 (1975) (" White I "), disapproved on other grounds, 113 Ariz. 209 , 550 P.2d 80 (1976) (" White II "); City of Tucson v. Rickles, 15 Ariz. App. 244 , 488 P.2d 180 (1971), vacated on other grounds, 109 Ariz. 82 , 505 P.2d 253 (1973).

1995See, White v. Kaibab Road Improvement Dist., 24 Ariz. App. 258 , 537 P.2d 986 (1975) (" White I "), disapproved on other grounds, 113 Ariz. 209 , 550 P.2d 80 (1976) (" White II "); City of Tucson v. Rickles, 15 Ariz. App. 244 , 488 P.2d 180 (1971), vacated on other grounds, 109 Ariz. 82 , 505 P.2d 253 (1973).

1995See, White v. Kaibab Road Improvement Dist., 24 Ariz. App. 258 , 537 P.2d 986 (1975) (" White I "), disapproved on other grounds, 113 Ariz. 209 , 550 P.2d 80 (1976) (" White II "); City of Tucson v. Rickles, 15 Ariz. App. 244 , 488 P.2d 180 (1971), vacated on other grounds, 109 Ariz. 82 , 505 P.2d 253 (1973).

1995See, e.g., Commercial Builders of N. Cal v. City of Sacramento, 941 F.2d 872 (9th Cir.1991) (applying a takings analysis to an ordinance conditioning building permits on payment of fee to offset burdens of providing low-income housing for workers at such developments), cert. denied, 504 U.S. 931 , 112 S.Ct. 1997 , 118 L.Ed.2d 593 (1992); Blue Jeans Equities W. v. City and County of San Francisco, 3 Cal.App.4th 164 , 4 Cal.Rptr.2d 114 (1992) (applying a takings analysis to an ordinance conditioning building permit on payment of fee for traffic control programs).

1995See, e.g., Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872 (9th Cir.1991) (applying a takings analysis to an ordinance conditioning building permits on payment of fee to offset burdens of providing low-income housing for workers at such developments), cert. denied, 504 U.S. 931 , 112 S.Ct. 1997 , 118 L.Ed.2d 593 (1992); Blue Jeans Equities W. v. City and County of San Francisco, 3 Cal. App.4th 164 , 4 Cal. Rptr.2d 114 (1992) (applying a takings analysis to an ordinance conditioning building permit on payment of fee for traffic control programs).

1995See Ehrlich v. City of Culver City, ___ U.S. ___, 114 S.Ct. 2731 , 129 L.Ed.2d 854 (1994).

1995See Ehrlich v. City of Culver City, ___ U.S. ___, 114 S.Ct. 2731 , 129 L.Ed.2d 854 (1994).

1995See Ehrlich v. City of Culver City, ___ U.S. ___, 114 S.Ct. 2731 , 129 L.Ed.2d 854 (1994).

1995See Ehrlich v. City of Culver City, ___ U.S. ___, 114 S.Ct. 2731 , 129 L.Ed.2d 854 (1994).