Sun, Jul 06, 2008

Tucson Region

Flagstaff restrictions cut property values, suit claims

By Howard Fischer
Capitol Media Services
Tucson, Arizona | Published: 10.04.2007
A new lawsuit Wednesday challenging a Flagstaff ordinance ultimately could determine the future of zoning regulations across the state.
The Pacific Legal Foundation is asking a Coconino County Superior Court judge to force the city to compensate three landowners for what it says is the reduced value of their properties.
The organization, which represents property owners in legal fights across the nation, contends the restrictions for construction in Flagstaff's new historic-preservation district effectively prevent the individuals from developing their lots as planned.
Landowners are suing under Proposition 207, approved by Arizona voters last November.
That measure was designed to prevent government from using its right of "eminent domain" to take private property from one person and give it to another, often a developer.
But the measure, approved by a 65-35 percent margin, also requires "just compensation" if any new law governing property use is enacted that "reduces the fair market value of the property."
Flagstaff City Attorney Pat Boomsma said she believes the city will win because there is no proof that the ordinance diminishes the value of anyone's property.
The outcome will be watched with interest statewide. Just the threat of lawsuits already forced Phoenix to repeal a newly created historic district, for instance.
Boomsma said the one thing the lawsuit will resolve is exactly how a court must determine whether someone's property is worth less because of a zoning change.
The Flagstaff ordinance, adopted in June, empowers the Historic Preservation Commission to consider, and reject, any building permits in the 15 square blocks of the district.
That commission, in turn, can impose a series of demands, ranging from the slope of the roof to requiring the use of "unique local materials" such as pine, limestone and red sandstone.
In one case, the lawsuit says it prevents Jon Regner from replacing the rear structure on his property with a duplex and renovating the front one as he had planned.
The suit says Paul Turner is being prevented from building a house on his property. And Bob Richards and Margaret Allen effectively are being barred from expanding the main house on their land and putting a second story on a rear house.
Requests for compensation were ignored by the city, the lawsuit says.
Timothy Sandefur, an attorney with Pacific Legal Foundation, said the intent of Proposition 207 was to keep "property owners from being exploited this way by bureaucrats."
Proposition 207 does have exceptions.
Cities can impose land-use rules to protect public health and safety, including building and health codes.
Governments can impose other types of restrictions, such as where liquor can be sold and prohibiting topless dancers.