Mesa, Arizona Eminent Domain Abuse

City of Mesa v. Bailey
Putting the Brakes on Eminent Domain Abuse in Mesa, Arizona


Randy Bailey continues to sell brakes at the corner of Country Club and Main.

Randy Bailey very nearly became a victim of eminent domain until the Institute for Justice Arizona Chapter came to his rescue.

Bailey's family has owned Bailey's Brake Service since the early 1970s. Randy purchased the store with his own savings from his father in 1995, and hopes one day to pass the shop, which has earned the loyalty of hundreds of customers, to his own son. As a small business owner, Randy provides employment to some hard-working folks, contributes tax revenue and services to his community and symbolizes the entrepreneurial spirit. Apparently, the City of Mesa did not value all that he achieved.

The City planned to take the brake shop through eminent domain, raze it, and transfer the land to a privately owned hardware store so that it could move to the more desirable location. To add insult to Bailey's injury, Mesa used tax revenue to pick up the tab for construction permit fees, title insurance fees and most impact fees and costs that would normally be incurred by the buyer. In other words, Bailey's own tax dollars were paying for the government's abuse of power to force the transfer of his land to another private business.

Legally, eminent domain projects allow the government to take land only for a "public use," such as a post office. The Arizona Constitution explicitly provides that "whether [a] contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public." That means that Mesa's decision to take Randy's property only to hand it over to another private party for their use is not constitutional, on the federal or state level.

That's why the Institute for Justice's Arizona chapter took on Bailey's case as its first stand on the issue of property rights in Arizona. On October 23, 2001, the Institute for Justice Arizona Chapter filed an answer to the eminent domain complaint and counterclaim on behalf of Randy Bailey in Maricopa County Superior Court asserting that Mesa was abusing its power of eminent domain because the Arizona Constitution absolutely prohibits the taking of private property for private use. This was the first in many battles IJ-AZ will wage to prevent local governments from stealing their citizens' homes and businesses in order to transfer them to private individuals.

The trial court upheld the use of eminent domain, but enjoined the taking of Bailey's property pending appeal. On October 1, 2003, the Arizona Court of Appeals unanimously struck down the City of Mesa's use of eminent domain. "The constitutional requirement of 'public use' is only satisfied when the public benefits and characteristics of the intended use substantially predominate over the private nature of that use," wrote Judge John C. Gemmill. Transferring private property to a developer to build a hardware store and other businesses did not satisfy that standard.

Randy Bailey continues to sell brakes at the corner of Country Club and Main.

Essential Background

Images

Backgrounder: Putting the Brakes on Eminent Domain Abuse in Mesa, Arizona

Client Photo

Client Video

Latest Release: Arizona Court of Appeals unanimously strikes down the City of Mesa's use of eminent domain (October 2, 2003)

Legal Briefs and Decisions

Download Arizona Court of Appeals Decision

Filing Release: Institute for Justice Arizona Chapter Files Suit Against Eminent Domain Abuse (October 23, 2001)

Testimony: Clint Bolick and Timothy Keller on HB 2487 ARIZONA HOUSE OF REPRESENTATIVES (March 19, 2002)

Case Timeline

Filed Lawsuit:

 

October 23, 2001

Court Filed:

 

Superior Court for the State of Arizona, Maricopa County

Decision(s):

 

April 30, 2002: Trial loss

 

 

May 1, 2002: Decision stayed pending appeal, allowing owners to stay

 

 

October 1, 2003:  Arizona Court of Appeals unanimously struck down the City of Mesa's use of eminent domain

Status:

 

Case Completed; Victory for Property Owners & IJ

 

Additional Releases

Maps, Charts and Facts

Media Advisory: Arizona Court of Appeals to Decide Constitutionality of Mesa Property Taking (May 31, 2002)

 

MAP: State Supreme Court Rulings On Eminent Domain for Private Development

Media Advisory: Court of Appeals to Hear Oral Argument on Arizona Eminent Domain Case (May 29, 2002)

 

IJ's first-ever nationwide census of eminent domain abuse:  Public Power, Private Gain

Release: City's Bulldozers Called Off in Mesa Eminent Domain Case (May 1, 2002)

Release: IJ Arizona Chapter Seeks Immediate Appellate Review Of Property Rights Case (April 30, 2002)

Op-eds, News Articles and Links

Video: The Story of Randy Bailey; (December 1, 2008)

Article: 2003: Randy Bailey's Year (February 2004)

Release: Institute for Justice Arizona Chapter Applauds Arizona House Action Curbing Eminent Domain Abuse (April 2, 2002)

Article: The Arizona Republic: 2003 East Valley newsmakers of the year (January 1, 2004)

Article: East Valley Tribune: The right ruling-Bailey's win in eminent domain suit a blow for property rights (October 3, 2003)

Media Advisory: Evidentiary Hearing on Arizona Eminent Domain Case (March 11, 2002)

Article: East Valley Tribune: This land is My Land (October 26, 2003)

 

Article: The Arizona Republic: Judges rule in favor of Mesa brake shop; Randy Bailey gets to keep his property (October 2, 2003)

 

 

Article: The Arizona Republic: Business Wants a Break (October 27, 2001)


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