Government planners fear Prop 207's costs - Tucson Local Media: Import

Government planners fear Prop 207's costs

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Posted: Tuesday, September 12, 2006 11:00 pm | Updated: 7:52 am, Thu Mar 24, 2011.

September 13, 2006 - It's Ken Strobeck's job to act as grandfather for the state's cities and towns. He watches out for their interests, teaches them new things and provides advice when they're in need.

Lately Stobeck, the League of Cities and Towns executive director, has been telling them to beware.

A proposition is on the ballot this November that Strobeck and many other local government officials say, if passed, could handicap local governments' ability to effectively plan their towns. In Oro Valley, some town staffers are concerned that the measure could lead to costly lawsuits when the town annexes nearby land.

On the surface, the proposition is about eminent domain. It limits the government's ability to take property without the owner's consent.

But it's the second part of the proposition that has bureaucrats and a growing number of environmentalists worried. The measure opens the door for citizens to sue their local government if they believe new zoning decisions or environmental regulations diminish their property values.

The same issue is on the ballot in about half-a-dozen other Western states.

Although the Arizona State Legislature addressed eminent domain in several bills this past session, none were passed.

Americans for Limited Government, headed by New York real estate tycoon Howard Rich, has paid $900,000 to get it on the ballot in Arizona.

Lori Klein, a former Washington lobbyist who lives in the Phoenix area, is heading the local contingent, Arizona HOPE. Klein said after the Kelo v. City of New London Supreme Court decision in 2005, she "contacted her old friend, Howie Rich," because she had to do something about it.

The Kelo case questioned the Connecticut town's right to use eminent domain to take over an area so it could be economically revitalized and generate jobs and tax revenue.

The court ruled in favor of New London and said the economic growth plans qualified as "public use" under the Fifth Amendment's Taking Clause.

The decision has been criticized across the country and led to measures on several state ballots funded by wealthy interest groups like Americans for Limited Government.

Klein said the measure is needed to protect private property rights and prevent government from coming in and unfairly taking people's land.

Klein said governments "create blight" to further their own interests, or to turn land over to private developers.

She pointed to an example in Mesa. Randy Bailey's family owned a brake service shop for more than 30 years, but the city tried to condemn it and turn the land over to a redeveloper to build an Ace Hardware store.

Bailey sued, and the court reversed the city's condemnation of the property and let Bailey hold on to his store.

But Strobeck said the broad nature of the second part of the proposition could seriously change the way communities zone and plan for growth.

"Instead of saying we want to zone and have a community planned in such a way that benefits everyone, this goes back to every man for himself," Strobeck said.

For instance, Strobeck said if a town zoned some land for a specific density, but years later recognizes a need to lessen the density or change the town's general plan, whomever the change affects may file a claim if he or she believes the value of property is negatively affected.

In Oro Valley, the same example draws concern, but town attorney Melinda Garrahan said a bigger concern would be the potential for expensive lawsuits after annexations.

"It's hypothetical at this point, but it certainly appears upon annexation, if the town went ahead and did transitional zoning in a way that someone would argue took some value they would have a claim," she said.

Town spokesman Bob Kovitz tried to explain potential conflicts simply. He said suppose Oro Valley annexed a part of the county that included a pig farm. The town would be required to translate the zoning to the closest designation, but Oro Valley doesn't allow for a pig farm, so the owner could claim the value of that farm and take the town to court.

Garrahan also said, at least on the surface, the measure could hinder the planning and zoning department's efforts to further protect environmentally sensitive land.

Klein, the proposition's leader, said if local a government doesn't have the money to compensate private landowners, the government will just have to waive the zoning requirement or environmental rules.

Garrahan agreed. A town the size of Oro Valley wouldn't have the money to try the case. But such waivers could lead to "spot zoning" and a poorly planned community, she said.

"The difficulty with this is that there is an assumption that land use planning is an easy process," said Arlan Coltan, a Pima County planner. "It changes over time - how wide streets are, where you put housing - but when (laws) essentially freeze those plans in time, it's much more difficult to react."

Coltan said for the most part zoning and planning increases property value. Building and tree height requirements and density levels are usually required to keep the land looking its best, which preserves value, not diminishes it.

But the broad language of the measure worries Coltan, Garrahan and Strobeck.

"This is written broadly and not been tested in the courts," Garrahan said. "The 90-second sound bite certainly favors voting for it. It sounds good. But someone like me has to think of the wide range of unintended consequences because of how broadly this law could be applied."

A small group in Phoenix is trying to stop those 90-second sound bites.

Paul Burns, a retired hospital administrator, organized a group called Protecting Arizona Taxpayer Coalition that is trying to raise money for an ad campaign against proposition 207.

But so far they don't have much beyond a couple $5,000 donations from the Center for Biological Diversity and the Sierra Club Grand Canyon Chapter, and a $1,000 gift from the Sonoran Institute.

Voters will decide the issue on Nov. 7.

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