Property Owners to Arizona Supreme Court: Don’t Overrule the Bailey Brake Shop Case

John Kramer
John Kramer · October 27, 2005

Phoenix, Ariz.—Tempe property owners battling against eminent domain abuse today will ask the Arizona Supreme Court to decline review of a trial court ruling rejecting Tempe’s land grab. Should the Supreme Court elect to consider the case, the property owners argue that the Court should uphold the Arizona Constitution’s clear command that “private property shall not be taken for private use.”

More than a month ago, Maricopa County Superior Court Judge Kenneth J. Fields found the City of Tempe’s attempted condemnation unconstitutional. Tempe wanted to forcibly take property located in an industrial park located on prime land at the Southwest corner of the Loops 101 and 202 to build a 1.3 million-square-foot retail center known as Tempe Marketplace. After waiting 30 days, the City of Tempe filed a special action in the Arizona Supreme Court, by-passing the Court of Appeals, and asked for an extraordinary remedy: overrule a two-year old Court of Appeals decision rejecting the City of Mesa’s attempted abuse of eminent domain to raze Randy Bailey’s brake shop to make way for a hardware store.

“The City of Tempe and the private developer driving this case—Miravista Holdings—have always maintained that the Tempe situation is very different from the Bailey case,” explained Tim Keller, executive director of the Institute for Justice Arizona Chapter (IJ-AZ). “Now that the trial court, after a five-day evidentiary hearing, determined that Tempe’s use of eminent domain was motivated not by a public use, but rather by private interests, Tempe changed its tune.”

Tempe claimed at trial, and continues to maintain in the media, that the land is environmentally contaminated and that properties need to be consolidated to be cleaned up. The trial court found that the remediation only needs to occur to build the developer’s planned retail center. In other words, the environmental card was nothing but smoke and mirrors. The trial court said, “The master redeveloper admitted that the majority of problems in the Redevelopment Area were not environmental, but geotechnical” and that such concerns “relate solely to the construction of improvements and pose no threat to human safety if the property in the Redevelopment Area is allowed to remain in its current state.” The trial court went on to find that the “private developer Miravista Holdings and its principals are the driving forces behind this project not the Plaintiff, City of Tempe.”

The Institute for Justice Arizona Chapter, as a result of Tempe’s decision to challenge the Bailey case, has joined the legal defense team of the Tempe property owners and, along with attorney Doug Zimmerman of Jennings, Strouss and Salmon PLC, represents property owner Donna McGregor on the constitutional issues. IJ AZ’s lawyers aided in writing the response brief that is expected to be filed today in the Arizona Supreme Court.

“Tempe’s problem is with the Arizona Constitution’s prohibition on private takings and with the facts of this case, not with the Bailey decision,” declared Jennifer Barnett, staff attorney at the Institute for Justice Arizona Chapter. “The facts demonstrate that Tempe is taking land for a private use, not a public use. That simply isn’t allowed under the Arizona Constitution and never should be allowed.”

The Arizona Supreme Court will consider Tempe’s petition on Tuesday, November 29, 2005, without oral argument.

“At the end of the day, Tempe is asking the Arizona Supreme Court to abandon the text of our state Constitution in favor of the U.S. Supreme Court’s dangerously broad interpretation of the Fifth Amendment in the recent Kelo v. City of New London case, which held that any alleged ‘public benefit,’ including increased taxes and job revenue, will satisfy the public use inquiry,” warned Keller. “If Tempe gets its way, then nobody’s property in Arizona will be safe because anybody’s property could generate more tax revenue and create jobs by replacing homes and small businesses with a mega-shopping mall.”