|An Arizona judge ruled April 29
that the city of Mesa can seize Randy Bailey's profitable brake
repair shop and transfer the property to his larger and more
powerful neighbor -- an Ace Hardware store looking to expand.
The Washington-based Institute for Justice,
the public interest law firm which is handling the case for
Bailey, immediate appealed the ruling, which is now stayed
The reason this case matters far beyond the
Phoenix suburb, where the Bailey family has operated its
profitable little business for 31 years, is that cities all
across the country "are using the power of eminent domain
to take homes and businesses from one set of owners to transfer
to more politically powerful ones," explains attorney Clint
Bolick, who's handling the case for the IJ. "It's corporate
welfare at its most brazen."
In the mid-1990s, Mesa leveled an entire
neighborhood -- 63 homes -- for a resort and water park that
never materialized, Bolick reports. "Today the homes are
gone, the taxpayers are out $6 million, and the land remains
That's because local governments -- once
responsible for protecting property rights -- are instead
now "playing real estate developer," Bolick charges.
It's important to note that Mesa wants to take
the property "not to build a road, a school, or a hospital,
but to sell to an Ace Hardware Store," Bolick explains.
"Bailey's Brake Service has been family owned at this
location for 31 years; it's very profitable. But even if he gets
full market value for his property he may be forced to go out of
business because of the high cost of relocating."
Environmental regulations which have piled up
since the shop originally opened would make it prohibitively
expensive for Bailey to relocate, even if he were paid
"fair market value" for his property, Bolick explains.
The excuse Mesa is using is that they're
allowed to seize property for redevelopment if it's
Mesa redevelopment director Greg Marek
testified the brake shop is surrounded by vacant land, empty
buildings and an abandoned gas station, and constitutes a
"legal non-conforming use."
"If you didn't use (the power of eminent
domain in this way), you would have downtowns in a mess,"
argues Tom Verploegen, executive director of the Mesa Town
Center Corp., who supports the forced property transfer.
But "There's been no formal finding of
blight," Bolick explains. And even if blight had been
proven, "The city's policies call for rehabilitation and
structural renovation wherever feasible. But it turns out the
city doesn't have a rehabilitation or structural renovation
program, so they just skip all that and go right to
Perversely, such indiscriminate tarring with
the brush of alleged "blight" can become a
self-fulfilling prophecy. In the early 1990s, the neighboring
city of Scottsdale "declared the Fifth Avenue area north of
Old Scottsdale a redevelopment zone and waited for a developer
to propose a replacement for the thriving small shops and art
galleries," Bolick wrote in a March 4 commentary for the
daily Arizona Republic. "Under the cloud of eminent domain,
the area has had difficulty attracting long-term tenants or new
"improvement" schemes don't eliminate blight. Rather,
by interrupting the natural cycle of free-market investment --
private speculators waiting for land prices in a given area to
drop before buying up and consolidating parcels -- they cause
This, inevitably, is the "end result of
these social engineering practices," Bolick adds.
But while Arizona Superior Court Judge Robert
Myers doesn't seem to have grasped the corrosive effect of such
cynical land-grabs, some public officials do appear to "get
"How secure do you feel in your property
rights?" asks Arizona State Treasurer Carol Springer in a
posting at her official web site.
"If you've been following the story of
Bailey's Brake Service, you might be a little frightened by an
emerging trend. ... Should the City of Mesa succeed in acquiring
Bailey's property through the use of eminent domain, it will set
a precedent for a whole new wave of government taking. ...
"The developer asked the City of Mesa to
condemn the brake shop under eminent domain and enable him to
acquire the property. ... This is a far cry from the original
intent of eminent domain laws. ...
"Property rights are one of the
cornerstones of this country. When the founding fathers came
here from Europe it was largely to enjoy the benefits of private
property ownership," Ms. Springer points out. "John
Adams said that, 'The moment the idea is admitted into society
that property is not as sacred as the Laws of God, and that
there is not a force of law and public justice to protect it,
anarchy and tyranny commence. Property must be sacred or liberty
cannot exist.' "
Not only are our private property rights
guaranteed by the Fifth and Fourteenth Amendments to the U.S.
Constitution, Arizona's own state constitution stipulates that
"Private property shall not be taken for private use,"
Ms. Springer reveals.
"Property rights are not a partisan
issue, they are an American issue," she concludes.
"Those that have the most to lose are the homeowners, the
people who work an entire lifetime to procure the American dream
of home ownership. The power of America is in its citizens'
right to secure their future through property ownership. This is
bedrock on which the wealth of this country is built."
A Republican state lawmaker who plans to
introduce legislation in Phoenix to curb such uses of eminent
"This should frighten everybody in the
state," Eddie Farnsworth, R-Gilbert, told Arizona's East
Valley Tribune. "One of the fundamental rights we have, and
what separates us from socialism, is private property rights. To
me, freedom and property ownership are inseparable. If you lose
one, you lose the other."
Amen to that.