The Loop - Can Pima County Condemn Property to Create an Urban Loop Park?

Pima County has almost completed a multi-use path around the City of Tucson the county calls "The Loop." Designed for pedestrians, bicyclists, and all other manner of non-motorized transport, The Loop will certainly be a fun amenity in Tucson once completed. Can the county use its power of eminent domain to take the remaining properties necessary to complete The Loop?

The Loop as of 2014. The tan areas show the portions Pima County has not yet constructed.

The [condemnor] will not be allowed to take the lands of another unless such right comes clearly and unmistakably within the limits of the authority granted. Whatever is not plainly given is to be construed as withheld.
— Orsett/Columbia LP v. Superior Court, 83 P. 3d 608, 611 (Ariz.App 2004)

Surprisingly, the Arizona Revised Statutes do not explicitly authorize a county to condemn private property for a public park. The county's right to exercise the power of eminent domain is derivative of the state's eminent domain powers, and therefore the state must explicitly authorize the county to condemn property for a specific purpose. The state has explicitly granted the power to condemn for public parks to Arizona cities. The closest the statutes come to granting the same power to counties is contained in a general grant enabling the county to use eminent domain for "grounds for any public use of the state." One has to wonder whether such a general grant of authority would suffice to allow a county to condemn private property for use as a public park.

This ambiguous state of affairs may lead the county to adopt different tactics for acquiring properties necessary to complete The Loop. The most above-board tactic, of course, would be for the county to acquire property through a negotiated purchase. The county may attempt more specious tactics, however, which could include requiring a property owner to dedicate property to The Loop as a condition for developing remaining, adjacent property, or including necessary Loop property within a condemnation for a more-clearly-authorized use, such as a drainage project.

The Loop appears to be a laudable public project for the county to pursue, but property owners should be aware of their rights. The law protects private property owners from being saddled with a burden properly borne by the public.