Phoenix-Goldwater Institute constitutional studies director Mark Brnovich applauded yesterday's decision by the Arizona Court of Appeals in the case of Bailey v. Myers, which pitted brake shop owner Randy Bailey against the City of Mesa. The Court ruled in favor of the Bailey family, holding that "Article 2, Section 17 of the Arizona Constitution prevents the City from taking the Baileys' property for this redevelopment project because the ultimate use of the property is not a 'public use.'" The court's decision can be reviewed in full at: http://www.cofad1.state.az.us/opinionfiles/SA/SA020108.pdf.
But Brnovich also stated that the matter is far from settled. "Bailey and the Institute for Justice have won an important battle for Arizona property owners," he said. "But the war is not over." First, Mesa may appeal the case to the Arizona Supreme Court, where Bailey's brake shop will face an uncertain outcome. Second, whatever happens in the Bailey case, the Supreme Court is unlikely to strike down Arizona's statutory definitions of what constitutes "public use." Brnovich sees those redevelopment statutes as a primary cause of eminent domain abuse.
Under the statutes, an area can be targeted for eminent domain if, among other reasons, it is deemed by a municipality to have a predominance of "defective or inadequate street layout," insufficient "diversity of ownership," or "improper or obsolete subdivision planning." Brnovich said that the language of the statutes gives municipalities a "ready grab-bag of excuses to take private property from some citizens in order to give it to others."
In a study published by the Goldwater Institute in August 2002, zoning attorney Jordan Rose argued that the 1997 redevelopment statute had "gutted the Arizona Constitution's prohibition against taking private property for private use" and led to an increase in takings for private use. To stop the kind of eminent domain abuse that prompted the Bailey case, the Goldwater report urged the Arizona legislature to revoke the 1997 statute in its entirety. The report is available here.
"Although the Bailey decision represents a positive step toward the protection of private property rights," Brnovich said, "the statutory language is still intact. Until the statutes are repealed, any Arizona property owner can become the next Randy Bailey."
Press inquiries about the Bailey case should be directed to Mark Brnovich at (602) 462-5000. Other press inquiries should be directed to Tom Jenney, director of communications, at (602) 712-1257.