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Condemnation action for private development project ruled unconstitutional.

An Arizona appellate court ruled unconstitutional a city's action to condemn property for a redevelopment project consisting of a privately owned retail center.

For many years the Bailey family has operated Bailey's Brake Service on property they own in Mesa, Arizona. In 1999 the Mesa City Council passed a resolution expanding the boundaries of the Town Center Redevelopment Project to include the Bailey property. The proposed redevelopment project envisioned the construction of a large retail center with stores, offices, and restaurants. The land owned by the Baileys would be combined with other parcels for the redevelopment project. The city filed a condemnation action seeking to take the Bailey property. The Baileys counterclaimed alleging that the proposed taking was unconstitutional. The trial court ruled for the city. The Baileys appealed.

On appeal the Baileys asserted that the city was attempting to exercise its power of eminent domain to take their property and package it with adjacent parcels of land for sale to private developers. They argued that this taking of their property was for a private use in violation of the state constitution.

The appellate court said that the state constitution allows such a taking only when the public characteristics or benefits of the intended use substantially outweigh the private nature of that use. The court emphasized that the intended use of the Bailey property was fundamentally for private development. According to the court, the developers and other private parties would be the primary beneficiaries rather than the public. The court ruled that the proposed taking of the Baileys property did not satisfy the "public use" requirement of the state constitution. The trial court's decision was vacated.

Bailey v. Myers

Court of Appeals of Arizona

October 1, 2003

(AJ/04/Su.04-$10)
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Title Annotation:cases in brief
Author:Myers, Bailey
Publication:Appraisal Journal
Article Type:Brief Article
Geographic Code:1USA
Date:Jun 22, 2004
Words:292
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