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Property rights under assault in Arizona

By Vin Suprynowicz
web posted May 13, 2002

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 pending appeal.

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 vacant."

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 "blighted." 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 eminent-domain seizure."

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 investment."

Heavy-handed government "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 blight. 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 it."

"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 domain agrees.

"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.

Vin Suprynowicz is assistant editorial page editor of the daily Las Vegas Review-Journal and the author of "Send in the Waco Killers" and "The Ballad of Carl Drega." For information on his books or his monthly newsletter, "Privacy Alert," dial 775-348-8591, e-mail privacyalert@thespiritof76.com, or write 561 Keystone Ave., Suite 684, Reno, NV 89503.

Other related stories: (open in a new window)

  • For the public good by Eric Miller (August 6, 2001)
    Eric Miller reports that city governments are increasingly using the power of eminent domain not to improve their cities, but to shred the right to private property
  • He said, 'If you come on my land, I'll kill you' by Vin Suprynowicz (October 9, 2000)
    Why did Garry Watson kill two men and wound two others? Vin Suprynowicz says the answer was obvious even if bureaucrats don't believe in the concept
  • Property protections continue to erode by Vin Suprynowicz (April 10, 2000)
    Last week Vin Suprynowicz detailed the case of Claude and Michelline Lambert. This week we learn about Lloyd Good Jr.'s battle with government to develop property

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