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Tucson, Arizona | Published: 09.28.2006
Pima County has rules — rules on open space and rules on hillside development, rules on native-plant conservation and rules on density.
If Proposition 207 passes, Pima County would have to pay property owners if new rules affect their property value or else exempt them from the rules.
The proposition, known as the Private Property Protection Act, has two elements. One limits government's eminent-domain power. The other requires government to reimburse property owners if new regulations diminish their property value.
Various versions of the law bounced around the Legislature this year. The only one that passed was vetoed by Gov. Janet Napolitano.
So now it's up to voters to decide the issue in November.
Backers say the measure is an important check on governments that trample individual property rights in the name of economic redevelopment or conservation.
"Eminent domain and excessive regulation are a way government takes your property," said Lori Klein, executive director of the Arizona Home Owners Protection Effort, which is pushing the proposition. "This way they have to think about the economic implications of their actions."
Opponents say the proposition is deceptively packaged, luring voters with the promise of eminent-domain reform while actually hobbling government's ability to deal with growth and costing taxpayers millions in claims and lawsuits.
"It looks like a lovable teddy bear, and it will turn around and bite everyone, including the taxpayers," said Pima County Administrator Chuck Huckelberry.
Backers of the initiative point to several eminent-domain cases in Maricopa County, including a Mesa brake-shop owner who went to court to prevent the city from taking his property for a hardware store.
Arizona case law says governments cannot take property to give to another property owner unless the area is blighted.
However, that leaves governments free to declare entire districts blighted and use that designation to condemn properties that are in good condition.
Supporters say the initiative closes an important loophole by requiring governments to look at each parcel separately when making a "blight" designation.
The eminent-domain changes include:
● A property must present a health and safety threat before it can be condemned as blighted.
● Governments can condemn property only for public use.
● When condemning someone's home for economic redevelopment, they must be offered the choice of a new home or money.
Officials here said those provisions are unlikely to affect local government much.
The Sonoran Desert Conservation Plan doesn't allow condemnation to be used to buy open space, and the extension of Rio Nuevo includes a provision barring eminent domain.
What worries officials is the second part of the initiative, which deal with what are called "regulatory takings."
That's the idea that government regulations can amount to taking your property.
In 2004, a Pima County couple sued because they were required to set aside a third of their land for native-plant preservation. The court said the county did not have to compensate them because they still had use of the rest of their land.
"The pendulum has swung so far from government constraint," said Clint Bolick, a senior fellow with the Goldwater Institute. "They regulate with no thought. Is this regulation really necessary or does it go too far? Government rarely makes those decisions."
The law wouldn't apply to zoning rules that deal with health and safety, nuisances, sex shops or location of utilities.
It would apply to density, open space, native-plant preservation, hillside protection and historic-preservation rules enacted in the future.
Planners said it would have a "chilling effect." They say uncertainty about how to interpret the law would mean years of litigation or simply paralysis.
"If you want to make changes, can someone make a claim, even if it's for the greater good?" asked Arlan Colton, a Pima County planner.
Earlier this year, a broad swath of the Tanque Verde Valley reverted zoning of one house per every 3.3 acres, ending a 1960s-era plan that would have allowed denser development.
Colton said the county is unlikely to ever do anything like that again if Proposition 207 passes, even though the decision had broad support in the area.
David Baird, a retired Air Force officer who moved there in 1972, said he's a strong supporter of property rights, but he supported the change and doesn't think property owners should be compensated for not being able to put more houses on their lots.
But Bolick of the Goldwater Institute said some rights are so basic even majority support shouldn't allow them to be violated.
"If the community is really intent to maintain this lifestyle, the costs should be spread out," he said. "The question is who should pay? Someone is paying. Too often, the majority imposes its will on the minority."
Bolick said eminent-domain abuse is much more common in Maricopa County, while regulatory takings are more common in Pima County.
"Where people are pro-development, you get one, and where people are anti-development, you get the other. Either way, you get property owners bulldozed in the process," Bolick said.
John Shepard, an associate director for programs at the Sonoran Institute, which opposes the measure, said focusing on the individual property owner misses the bigger picture.
"When individual landowners make decisions about their property, those decisions impact neighboring properties and the community at large," Shepard said.
Richard Kessler, president of the Elvira Neighborhood Association on the South Side, said the issue is a tough one. He supports the eminent-domain provisions, but he's conflicted about the regulatory takings.
"You should be able to do with your property what you want as long as it's in keeping with the neighborhood," he said. "But I don't see building a four-story building where it's only bungalows."
Americans for Limited Government, a Libertarian group headed by New York developer Howard Rich, has provided almost a million dollars for the campaign. ●Environmental groups have given $11,000 toward the group opposing the measure.
● Contact reporter Erica Meltzer at 807-7790 or emeltzer@azstarnet.com
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