Since the Town Council’s action on Monday, March 4, 2013, many questions have been asked by residents and others interested in the details of the council’s decision.
Before the Town Council voted to exercise its right of eminent domain, Curis Resources had filed a formal notice of claim against the Town, claiming that the Town owed Curis for the full value of its property. The lawsuit that would have resulted from Curis’ claim would have put both Curis and the Town in the same position as if the Town files eminent domain, with similar costs and risks on both sides, but with at least two important differences.
First, by condemning or otherwise acquiring the property, the Town will have the use of the land and everything that goes with it, such as the water rights, and will have a valuable asset at the conclusion of the proceedings that will be worth exactly what the Town pays for it. The law requires the Town to pay no more and no less than the fair market value of the property acquired. If the Town had not exercised its eminent domain rights, Curis was threatening to sue the Town for the value of the property anyway, but Curis would have been able to keep the land.
“Under the circumstances, the Town really had no choice,” said Florence Town Manager Charles Montoya. “It was clear that a lawsuit was going to happen one way or the other. The Town would have been in the position of possibly having to pay for the property, with nothing to show for it at the end of the day. The Council had to act.”
Second, in condemnation cases, property owners usually are not awarded their attorneys’ fees. In a lawsuit initiated by a property owner claiming a taking or reduction in value as the result of government action, as was being claimed by Curis in its Notice of Claim, attorneys’ fees can sometimes be awarded in favor of the owner. “If the Council had not authorized eminent domain, we would have been looking at the same claims for compensation, with the added burden of possibly paying Curis’ attorneys’ fees,” said Mr. Montoya.
The Town’s right and need to condemn the entire property was triggered by Curis’ claim that they have the right to mine or conduct mining operations on the entire 1,187 acres of residentially zoned land. The stated public policy of the State of Arizona, enacted into law, is to eliminate such non-conforming uses as soon as possible, and to use eminent domain, when necessary, to do so.
“Characterizing the Town’s actions as a confiscation or seizure of private property is inaccurate and misleading. No private property is being taken without payment of just compensation,” said Mr. Montoya.