MARCH 26, 2002

"Eminent domain or imminent danger?"

- Carol Springer, Arizona State Treasurer

How secure do you feel in your property rights? If you have been following the story of Bailey's Brake Service, you might be a little frightened by an emerging trend. Government has always had the right to use eminent domain to purchase privately held property for public use. It is in the definition of "public use" that the danger lies.

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.

"But the developer never made an offer to Bailey. Instead, the developer asked the City of Mesa to condemn the brake shop under eminent domain and enable him to acquire the property.

The case involves a small business owner, Randy Bailey of Bailey's Brake Service. His family has owned and operated the business for 31 years in Mesa. A nearby business owner would like to enlarge his won business operations by developing an area that includes the Bailey property. The normal course of events would be that the two business owners would settle on a mutually agreed upon sales transaction. But the developer never made an offer to Bailey. Instead, the developer asked the City of Mesa to condemn the brake shop under eminent domain and enable him to acquire the property.

The city has authority to condemn the brake shop because it is in an area designated by Arizona law as a "redevelopment area." This designation was written into law in 1997 when the concept of redevelopment areas was added to existing eminent domain laws.

The changes allow a property to be designated as part of a redevelopment area if they meet certain criteria including faulty layout, deterioration of site, diversity of ownership, unusual conditions of title, impairs the growth of a municipality, or constitutes an economic liability. Inclusion of these characteristics intended to ensure successful completion of critical transportation, water and utility projects. It has modified the law to the extent that a government could condemn property and sell to a private owner for redevelopment.

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. 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 public justice to protect it, anarchy and tyranny commence. Property must be sacred or liberty cannot exist."

Property rights are so important, that they are addressed not one, but two times by the Bill of Rights of the United States Constitution. Article V says that private property shall not be taken for public use without just compensation. Article XIV says that no state shall deprive any person of life, liberty, or property, without due process of law. Even though the founders of this country knew that under very specific circumstances property rights would have to yield for the good of the people, they made every effort to ensure that private property would be protected in all but the most serious circumstances, and only for PUBLIC use.

When the Arizona Constitution was written, property rights were still of paramount importance. Article II, the Declaration of rights, Section 17 says "private property shall not be taken for private use, except for private ways of necessity..." Again eminent domain rights were granted with specific limitations.

This dedication to the protection of private property may be completely overturned in Randy Bailey's case. What is the public use? In this case, it is nothing more than the potential for procuring more tax revenue. Just think about what this means for all property owners. If the government can use eminent domain whenever it wants to raise tax revenue, any property can be condemned and sold to a developer or another private party for any purpose whatsoever. This goes far over the line in any definition of "public use."

A public-interest law firm, the Arizona Chapter for the Institute for Justice, is defending Bailey in Maricopa County Superior Court, asking the court to stop the condemnation. This is a critical case and should be of great interest to all property owners.

On a separate front, a group of lawmakers at the State Capitol is seeking to change the laws that created the redevelopment areas in 1997. By amending the A.R.S. 36-1474, their bill (HB 2487) would make a governmental entity prove that the condemnation is essential for a public use before a transfer of ownership can occur. Property rights are not a partisan issue, they are an American issue. 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. Let your elected representatives know how important property rights are to you.