Judges rule in favor of Mesa brake shop after 60 Minutes tackles eminent domain cases

Suzanne Starr/The Arizona Republic

Randy Bailey gets to keep his property

Adam Klawonn and Brandon Babcock
The Arizona Republic

Oct. 2, 2003 12:00 AM

Mesa, AZ - Vindication finally came for a family-owned Mesa auto shop Wednesday when the state Court of Appeals ruled in its favor, saying that City Hall wrongly tried to take their property so developers could use it.

The 15-page decision took more than 14 months, left at least two local businesses in legal limbo and the city with a black eye. It caught the attention of producers from CBS News 60 Minutes, which aired the story Sunday.

It is a landmark ruling that will affect cases everywhere that involve eminent domain, the right local government has to take private property for the public good.

And for Randy Bailey of Bailey's Brake Service, the victory couldn't have been sweeter.

"This ruling today means that justice has prevailed and America is what America is supposed to be about," said Bailey, smiling through a thick beard and covered with grime and sweat from working on cars.

"Property rights are still sacred in this world."

Motorists drove by his shop Wednesday afternoon, honking horns and shouting support from their car windows. The parking lot was full of media, well-wishers and customers needing a tuneup.

The phone rang constantly while Bailey rang up the bill for brake work on Paula Whittington's BMW.

Greg Western, 34, of Mesa, a mobile mechanic and acquaintance, stopped by after he heard the news while pulling out of a nearby auto parts store.

"I'm a man that believes in property rights, and this is a victory for the common citizen," he said.

The city had obtained immediate possession of a 5-acre site that included the shop and other businesses on the prime corner of Country Club Drive and Main Street about two years ago to replace it with Lenhart's Ace Hardware, restaurants and other stores. Bailey's shop has operated there since 1974.

The idea was to renovate the city's "gateway," one of downtown Mesa's most visible intersections. Bailey's attorneys sued in Maricopa County Superior Court and lost. They appealed.

In a rare reverse of a lower-court decision, the appellate court's three-judge panel ruled that Mesa failed to prove that taking the land for private developers was a "public use," under state law.

The city never proved that it intended to build a street, park or other public facility on the site. Rather, the proposal would have benefited a select few rather than the public at-large, the court said.

"The developers and other private parties wold be the primary beneficiaries, rather than the public," wrote Judge John C. Gemmill. "The anticipated benefits to the public do not outweigh the private nature of the intended use."

Clint Bolick, vice president of the Institute for Justice, a Washington, D.C.-based public interest law group that has fought eminent cases nationwide, represented Bailey. Bolick said Wednesday's ruling was very clearly written compared with other court decisions on the issue.

The group has similar cases pending in Ohio and Connecticut, he said, adding that the Arizona ruling will give them firepower.

Reached on his cellphone in Missoula, Mont., he said it was the first time the premise of eminent domain had been tested in an Arizona court, and it sent a message.

"This puts cities on notice that the days of corporate welfare dressed up as economic redevelopment are over," Bolick said.

Mesa Mayor Keno Hawker said he is "very happy" with the ruling, and that he is loathe to use the City Council's right to appeal to the Arizona Supreme Court.

"I think the city as an entity went too far," he said, "and we got too concerned with cleaning up a corner and didn't remember there are individual property owners there that have private property rights."

State legislators changed laws governing eminent domain earlier this year, making it harder for cities to use the power by requiring a two-thirds council vote on four separate public reviews of a condemnation case.

The city was sued under the previous laws, and it's up to the City Council to decide if the city will appeal. The case has dragged on nearly four years, but city officials have said they have no idea what it has cost.

Charlie Deaton, Mesa Chamber of Commerce president/CEO, supported Bailey's right to contest the case but said the city's right to use eminent domain is one of the tools available to preserve its inner core.

"I think we'll just live with a brake shop on that corner," he said.

At Lenhart's Ace Hardware, east of Bailey's on First Avenue, it was business as usual Wednesday.

Employees said owner Ken Lenhart was out of town and declined to comment as they were closing up.

One customer, Noel Palicios, 26, a supervisor at LEJ Concrete who lives in Mesa, said he would just as soon see Lenhart's stay where it is. "I think it's great where it is; it's closer for me."

Staff reporter Sarah Muench contributed to this article.


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