Cato Institute
1000 Massachusetts Ave, NW
Washington, DC 20001-5403
 Phone (202) 842 0200
Fax (202) 842 3490
 Contact Us
Support Cato

Mugged by the State Mugged by the State, by Randall Fitzgerald

The Arizona Brake Repairman

(The following is an excerpt from Randall Fitzgerald's book, Mugged by the State, (Regnery, 2003). This book is available from the Cato bookstore.)

A newspaper reporter's phone call first alerted Randy Bailey to the disturbing news that city officials of Mesa, Arizona had condemned Bailey's brake repair shop under the state's eminent domain law and intended to turn his land over to a hardware store owner. Bailey, forty years old, was aware that the hardware store owner had purchased land behind his brake repair shop. Bailey also suspected that the richer man coveted his quarter-of-an-acre corner lot, but he never imagined the city would or could intervene to favor one businessman over another.

"They're coming after our property", Bailed informed his wife and three children.

"What do we do now?" his wife asked.

Bailey could only shrug. He had no idea how to go about protecting himself without being bankrupted by legal expenses. To have his future placed in jeopardy like this, in a nation he thought respected the principles of private property rights, was totally bewildering to him.

Bailey's Brake Service had been located at the busy corner of Country Club Drive and Main Street in Mesa for thirty-one years.

His father had started the business when he got out of the military, and Randy went to work there for his dad right out of high school in 1979. In 1995 Randy purchased the shop from his father in pursuit of a dream that one day he would similarly be able to pass the business on to his own son.

Soon after city officials announced the condemnation of Bailey's brake shop, Mesa Redevelopment director Greg Marek revealed in an interview with the Arizona Republic how the city's rationale was mostly aesthetic. "This is an entryway into downtown. What we have always looked at is to find ways to remove these blighting influences."

Under an Arizona law implemented in 1997, a property deemed to be in a "redevelopment area" can be seized by local governments and sold to private developers. In Bailey's case, officials had decided that a hardware store was less of a "blight influence" than a brake repair shop.

Randy and his father began scouring every piece of vacant land in Mesa in an attempt to find a suitable site for relocating the shop.

"We quickly found out we had no place to relocate for what the city was offering to pay us", "Randy told me. "There is simply no replacing our location because it's at a major intersection. It would cost me another $250.000 in borrowed money to relocate. I can't afford that. I would be out of business."

Though the Arizona Constitution explicitly states, "private property shall not be taken for private use," the city of Mesa and other communities, with support from the Arizona Legislature, expanded the concept of "public use" to mean virtually any kind of economic redevelopment, including redevelopment done for purely aesthetic reasons. But Mesa's previous experiment with redevelopment had proven a costly disaster. In the mid-1990s, an entire neighborhood of sixty-three homes was condemned by the city and leveled to provide land for a resort and water park. Nearly a decade later, the land remained vacant, local taxpayers were $6 million poorer, and the project had become a monument to shortsighted-ness and coercion.

In Bailey's case, the politically connected hardware store owner had appealed to the Mesa City Council to declare Bailey's property a "redevelopment zone", qualifying it for eminent domain seizure, so the hardware store owner could secure a better location for his business. In July 2001, after a vote by the city council, the court papers were filed to confiscate Bailey's shop and land. Adding insult to Bailey's injury, the city even agreed to spend taxpayer money to pay the hardware store's construction permit fees, title insurance, and most impact fees.

"This is truly legalized theft," Bailey declared. "To forcibly take private property and give it to another private party is not the American way. The government is destroying people."

Institute for Justice attorneys, responding to local publicity about the case, offered to represent Bailey, and in October 2001 filed a suit in Maricopa County Superior Court challenging the city of Mesa's authority under the state constitution to take the stop. Three months later superior court judge Robert Myers rejected the city's request that it be allowed a "quick take" of Bailey's property, an immediate takeover and destruction of the shop which would have denied Bailey due legal process in protecting his property. Eventually the trial court ruled against Bailey and the Institute for Justice appealed on his behalf to the appellate court. As of this writing, no final verdict had been returned.