Phoenix-Launching a litigation campaign to defend private property rights against eminent domain abuse, a newly created Arizona chapter for a national public interest law firm today filed papers in Maricopa County Superior Court challenging the City of Mesa’s efforts to take a brake shop and give it to another private individual to construct a hardware store. The Institute is working with prominent Phoenix lawyer Dale Zeitlin.
“The practice of taking property from one private owner and giving it to another represents government abuse at its worst,” declared Clint Bolick, vice president and director of state chapter development for the Institute for Justice. “It is Robin Hood in reverse.”
The case is the first filed by the newly opened Arizona Chapter of the Washington, D.C.-based Institute for Justice, which litigates nationwide in support of property rights, school choice, economic liberty and free speech. The Institute has successfully fought abuses of eminent domain in high-profile cases in Atlantic City, N.J., and Pittsburgh, Pa., and continues to litigate against that abuse in Connecticut, New York and Mississippi. In 1998, the Institute successfully prevented the State of New Jersey’s efforts to take a private home and businesses to give them to casino owner Donald Trump for a limousine parking lot.
The Arizona Constitution states, “Private property shall not be taken for private use. . . .” In recent years, the Arizona Legislature has expanded the concept of “public use” to encompass economic redevelopment. Cities such as Mesa and Scottsdale have wielded the power broadly to take homes and businesses and give them to politically powerful developers.
“Sadly, this is another example of a city destroying small businesses,” observed Zeitlin, an experienced condemnation lawyer with the firm Zeitlin & Zeitlin in Phoenix who serves as co-counsel in this case. In another case, Zeitlin represents a motel owner whose business was taken by the City of Phoenix to give to the developer of a Marriott hotel.
Bailey’s Brake Service has operated at the corner of Country Club and Main Street in Mesa for 31 years. The present owner, Randy Bailey, purchased it from his father in 1995 and hopes to pass it along to his own children one day. But in July, the City filed court papers to take the property to turn it over to an Ace Hardware Store that wants to expand as part of a broader “redevelopment.” The City is even paying the hardware store’s construction permit fees, title insurance and most impact fees.
“The City’s actions would harm a private individual just to benefit another more politically powerful private individual,” said Bailey. “That’s not the way our government should work.”
In papers filed in court today, the Institute for Justice Arizona Chapter says the City may not take the property because it is for a private use, not public. “In a free society, when private parties want someone else’s land, they must negotiate privately for it; they can’t use government power to force the seller to hand it over,” said Bolick. “In this case, Mr. Bailey’s property is not for sale, and we will fight this unconstitutional abuse of government force.”
Four members of the seven-member City Council who voted for the redevelopment announced conflicts of interest because they or their relatives own property that stands to gain in value as a result of the City’s action. “This is nothing but cronyism, advanced through the coercive power of government,” Bolick stated. “If the City of Mesa can take this property and give it to someone else for private gain, then no property owner in Arizona is safe from the rapacious appetites of local government.”
Previously, Mesa used its eminent domain power to take a residential neighborhood for a time-share resort that was never built. Today, that property is a wasteland.
“The City of Mesa’s so-called redevelopment efforts shock the conscience,” declared Timothy Keller, a staff attorney with the IJ Arizona Chapter. “By using eminent domain to take Randy Bailey’s property for the benefit of a private businessman, the City is blatantly violating an essential freedom guaranteed by the Arizona Constitution. In the process, it is also putting Randy’s brake shop out of business and his employees out of work.”
In other litigation, the Institute for Justice is currently challenging involuntary funding sources of the so-called Clean Elections Act and is defending Arizona’s education tax credit for contributions to private scholarship funds. Both cases were filed before the Institute opened its Arizona Chapter in August.