Tuesday, August 7, 2007

Bob Schlanger: Living his dream on your money

Tucson resident Bob Schlanger has a dream. He is a typical "do-gooder" with visions of proper order in his neighborhood. His neighborhood. Bob is the Jefferson Park Neighborhood Association Vice-President.

Bob's dream is that his beloved neighborhood is void of tall houses that may have rooms for students who attend the adjacent university. Bob's dreamy neighborhood is quaint, quiet and cute.

There is restlessness in Bob's dream. His neighbors can build tall houses with rooms for students. And to Bob's horror, some of them are doing it, making money and actually living their dream, not his! Bob knows that they too have saved, scrimped and risk their hard work on building tall houses.

But Bob feels since he is more sincere, his dream should be "the dream" for his neighborhood. After all, Bob is the vice-president of his neighborhood association and many of them are not even members.

His statewide neighbors passed Prop. 207, protecting those who dream about tall houses against vice-president Bob of the Jefferson Park Neighborhood Association. Poor Bob, he's blue and cranky.

Before Prop. 207, Bob would have lived his dream. His friends at Tucson City Hall like Bob and they like his dream. The "Bob's" of the community were happy. The tall house people were sad because City Hall once told them they could build tall houses, but since Bob said "no" now they can't and are sorry for their loss.

We know the rest of the story ... the tall house people got tired of being pushed around by the Bob's and his friends at City Hall. They reminded their statewide neighbors about the freedom and liberty that private property gives them. The people said "yes, we remember" and asked, "Why did Bob forget?"

Bob still hasn't remembered. He clings onto his dream. Now, Bob wants his friends at City Hall to spend some of the tax money collected from the tall house people to fight the tall house people. Bob went to a City Hall meeting to get the money to force his dream on the tall house people.

There was a reporter at the meeting who wrote down Bob's words. According the reporter, Bob said:

Schlanger said the city should have the guts to challenge Prop. 207 and find out from the courts what the initiative really means, because right now nobody knows exactly what it means.

"This a dance around Prop. 207," Schlanger said. "I think we have to challenge 207. There's no better time than now."

Bob's friends at City Hall know what Prop. 207 means. It says, "Bob, tall house people have dreams, too."

Saturday, July 28, 2007

It's starting to sink into their heads .... Prop. 207

Here is an excellent excerpt from the government NPR radio station KNAU.

This story was broadcast July 25, 2007. It addressed the first Prop. 207 claim filed in Arizona by a Flagstaff resident who is represented by the Pacific Legal Foundation.

The citizen passed initiative and its individual private property protections are now starting to sink into the "collective" minds of the do-gooder activists, many government officials and their fellow travelers:

"Prop 207 at it's macro level says the individual property owner is supreme rather than the community is supreme, so it's really a change in philosophy, instead of saying we want to do this change because it's going to be beneficial for the community or the city in general, things are now looked at in terms of what's best for an individual property owner."

AMEN! AMEN! AMEN! -- Finally, back to where we started after the American Revolution and before the statists used government powers to trample on our liberties. Reminds me of the graphic of the Bill of Rights with a big red stamp over it saying "VOID Where Prohibited by Law."

Of course, before Prop. 207, the government officials only cared about the do-gooder activists and their "community" plans and to hell with the individual property owner ... and to add insult to injury ... the do-gooders and their government cronies made the individuals pay by decreasing their property values.

Prop. 207 now offers legal recourse against the do-gooders and their hair-brained schemes.

Keep rattlin'

Thursday, July 26, 2007

Annual Privatization Report -- Prop. 207

Reason Foundation just released its 21st Annual Privatization Report which includes an excellent write-up on Arizona's Prop. 207. (.pdf pages 10-13)

The Prop. 207 segment is titled: The New Standard for Regulatory Takings Reform

Big Rattler highly recommends you click and read to get the flavor of how local government officials are dealing with the fact that now private property rights are protected from ham-handed, do-gooder regulatory schemes.

Kudos to Leonard Gilroy! Keep the solid research coming Len ...

Thursday, July 19, 2007

Bogus Reporting on Arizona's Prop 207

Excerpts from Reason Foundation's Leonard Gilroy:

A recent article in the Arizona Republic on the impact of Proposition 207 (see my recent post here) is chock full of misinformation and is a not-so-subtle attempt to undermine the eight-month-old property rights law. Space and time don't permit a thorough fisking of the piece, so I'll focus on a few key spots.

The first three paragraphs offer a clue to the direction of the piece right off the bat:

A new state law billed as a property rights safeguard has dealt a blow to residents and city leaders who want to save old neighborhoods, create shopping districts or influence what is built in their communities.

Hardly. Prop 207 hasn't done anything to restrict cities' ability to plan, create special districts, and the like; rather, it merely holds them accountable for the impacts of these planning decisions on the property rights of affected landowners. Citizens now have a form of relief if cities and counties adopt zoning changes and land use
regulations that devalue private property.

Nothing in the measure precludes or prevents governments from regulating land use; it simply offers aggrieved landowners a remedy, either via compensation for property devaluation or exemption from the regulation at hand. [More ...]

Back to the AZ Republic article...

Arizonans are now finding out that the measure severely limits cities' power to change land use, a crucial tool that helped create signature Valley neighborhoods such as Mill Avenue in Tempe, the Encanto historic district in downtown Phoenix and the Esplanade at 24th Street and Camelback Road.

Again, complete rubbish. As I note above. Nothing in Prop 207 prevents government regulation of land use, it just gives property owners a remedy that did not previously exist. Any intelligent person can read the text of Prop 207 for themselves, and they will find nothing that limits the ability of governments to zone and regulate land use. [More ...]

Boo hoo, whine whine. While I love sidewalk cafes and urban parks as much as the next urbanist, seems to me that in the grand scheme of things, protecting private property rights might just outweigh a few inconveniences and delays suffered on the part urban planners. And, once again (I'm sounding like a broken record), landowners can't "refuse to rezone" under Prop 207. They don't gain any new rights to stop municipal planning and land use regulation under Prop 207--they just get the right to seek compensation or exemption if new rules lower their properties' value. To claim otherwise is just disingenuous spin on the part of Prop 207 opponents. [More ...]

More to come from Reason on Prop 207, starting with a feature I wrote for our upcoming Annual Privatization Report 2007, set for release next week.

Thursday, June 28, 2007

In other words, Prop. 207 is working

From Reason Foundation's blog by Leonard Gilroy:

In just the first seven months of implementation, there have already been several indications that Prop 207 is changing the way Arizona communities approach regulation and growth management issues. For example, in April 2007 the Phoenix City Council voted to repeal a historic designation it had placed on an area in central Phoenix after being threatened with a Prop 207 challenge from an aggrieved landowner. Also, the Tuscon City Council recently delayed the adoption of a neighborhood preservation overlay district to study the potential Prop 207 ramifications after a group of property owners opposed it on Prop 207 grounds, arguing that it would restrict the use of their property and decreased its potential value.

In other words, Prop 207 is working.

I've just written a piece on Prop 207 that will be featured in Reason's upcoming Annual Privatization Report (slated for a July release) that talks about these events and more, and I've got a policy brief in the works that will provide more details on Prop 207 and articulate the case for it as the best current model for state-level property rights protections.

Thursday, June 21, 2007

Flagstaff Follies

The Flagstaff City Council really stomped on Prop. 207 property rights this time ...

All over Arizona, city and county officials have been following the new citizens' enacted law by not forcing zoning overlays and other unwanted "do-gooder" districts (read, historic, neighborhood, etc) on property owners.

Why? Because they know that by imposing their elected power to pass regulations which diminish an owners property values, they put the taxpayers in jeopardy of having to pay property owners for their loss. It is irresponsible for city council members to expose taxpayers to such lawsuits.

The "rule-of-thumb" is choice ... whether or not a property owner chooses to participate in a historical designation, or the like, and allow for said owner(s) to opt-out or opt-in.

Some specific areas are ripe for a historical district and such designations will actually increase the property values; but many times some properties are just old and the forced designation makes these properties uneconomical. People bought such properties knowing the existing regulations only to have the rules change after they made their investment -- many times their lifetime investment, now ruined by some local political activists prancing around saying, "Wouldn't it be nice if ..."

The Arizona city and county officials, for too long, did not respect these property rights and the losses created, thus the overwhelming passage of Prop. 207. It is known as "push-back."

In spite of the so-called "collective wisdom" that the city and county governments have gleaned since the passage of Prop. 207, the pretty little buttercups from Flagstaff have thumbed their collective city council's noses at property owners and passed an historical district with no opt-out provisions. Guess what ...!?!

The City of Flagstaff (read, taxpayers) is getting sued! Not only are they in the process of getting hauled into court, but they are being opposed by one of the pre-eminent law firms in the United States of America, the Pacific Legal Foundation. (PLF)

Here is the release issued by the PLF: (Be sure and click to read their "demand letter")

PLF Begins Process to Defend Arizona Homeowners under Prop. 207

by Timothy Sandefur

The Pacific Legal Foundation today filed a demand letter with the City of Flagstaff, Ariz., which starts the clock ticking toward filing a lawsuit under Proposition 207, the Arizona Private Property Rights Act. This will be the first case invoking the protections of the Act.

The case challenges the new city ordinance adopted last night, which imposes a "historic district overlay" on a portion of the city. Essentially a new layer of zoning, this overlay imposes severe height and width restrictions on properties in the area and creates a new bureaucracy with power to deny property owners the right to renovate their homes.

PLF represents Jon Regner, a Flagstaff firefighter who purchased his property with the intention of renovating it and living in one house while renting out the other. The new ordinance prohibits him from doing this. PLF also represents several other landowners whose property rights are being trampled upon. Fortunately, with Arizona's powerful new property rights protection law, these property owners have a legal tool with which to defend themselves.

Arizona local governments and citizens were working with each other to understand the new operating procedures since the passage of Prop. 207. And, from Big Rattler's perspective, they were doing O.K. with only a few dust-ups.

Even the rabid Prop. 207 haters like Pima County land-czar and self-anointed prophet of all things being built now and in the future, his eminence Chuck Huckleberry, had to yield to the provisions in Prop. 207. (That does not mean he has stopped trying to figure out to work around the law to retain his "rightful" throne.)

Hopefully, the Flagstaff City Council will do their due-diligence and realize that they must allow those property owners, who choose not to be included in the newly designated historical district, a legal avenue to opt-out.

As always ... Big Rattler will keep you posted.

Tuesday, June 19, 2007

Just how Prop. 207 was designed to work

The Arizona Republic has a story today that once again illustrates precisely how Prop. 207 was legally designed to work.

If the government takes value away from your property via new rules and regulations for the common good, then the common good (read, taxpayers) should do the right thing and pay the property owner for their loss. In the ethical world, it is called honesty and being a good neighbor.

Before Prop. 207, "do-gooders" backed by their political cronies used to have free reign in sticking it to property owners for their "common good" projects, like historical districts and neighborhood protection overlays. Their "visions of the anointed" were -- in their elevated minds -- of such high proportions and so thoughtful that the lower rubes surely would see the wisdom of their most public endeavors ... even if it took the low-brows a bit of time to become as enlightened as they are.

Well, Big Rattler doesn't spend any time sitting coiled on a cone at the Sedona energy vortex surrounded by crystals, so I just don't get that type of enlightenment. But what property owners do understand is that these "feel-good" districts and overlays make their banker nervous because many use property to back loans and now the property is not worth as much.

One would sure have to spend a lot of time at an energy vortex to dissipate that kind of nervous energy, not to mention you might lose your job spending so much time away from work!

Thankfully, some politicians will try not to break the law, unless they have to; and Prop. 207 is the law.

Here is the link to the story (6-19-07) followed by a couple excerpts:

TEMPE -- A handful of Maple-Ash neighbors initiated the request for the historical designation, a measure that allows a neighborhood to establish suggested standards for building exteriors in order to preserve an area's character.

But while no one seems to dispute that the cozy, quaint texture of Maple-Ash is something special in a Valley full of cookie-cutter homes, the request was hotly contested.

Dozens of longtime neighbors that support the effort say they see historical designation as a way to protect Maple-Ash from development that doesn't fit with the current flavor of the neighborhood. Dozens more oppose the plan because they say it could conflict with landowners' development rights and property values ...

Tempers flared Tuesday night during the Development Review Commission meeting that stretched past 1:30 a.m.

The commission had already delayed making a decision once. Six months ago, the board agreed on a postponement to give city staff time to investigate a new zoning method called "form-based code" that could have helped the neighborhood.

Tuesday, the commission unanimously agreed that form-based code solution was a good idea, but shot down backing historic designation for an entirely different reason: Proposition 207.

The initiative has made waves throughout the state since voters approved it last year. The language of the proposition is dry, but the potential impact could be monetarily devastating for taxpayers.

Proposition 207 mandates that if a city makes a land-use, or zoning, change that decreases the value of a private property owner's land, the city is responsible for providing adequate compensation.

In other words, if Tempe put the historic designation in place on Maple-Ash and a landowner thought his or her property was devalued because of the new development rules that come with such a designation, the landowner could sue the city. Landowners drove that point home Tuesday night when they talked to the commission.

"We obtained an attorney," said Janice Williams, a property owner. "The attorney assured us there would be a case, the city would be liable."

Another property owner predicted historic designation would devalue his homes by 30 and 50 percent.

"It would make an intolerable situation where I would be forced to sue the city through Proposition 207," John Dickson said.

The group pushing for historic designation was disheartened by the decision.

Wednesday, April 25, 2007

THIMK -- Before you mess up

The Tucson City Council is starting to show signs of life again after a long-term, self-induced coma from noxious liberal gas poisoning.

Granted, the life signs are small, simply an eye open with pupils responding to the light of liberty.

The Council has been treated since last November in an oxygen tent filled with pure Prop. 207 and thank the Good Lord, the patient is responding!

Just last evening, the Council delayed action on a proposal that would crush individual property rights by way of a so-called "neighborhood-preservation overlay." But, since Arizona voters enacted Prop. 207, these property owners are protected from such regulatory schemes that would diminish their property values.

Here is clip from the Arizona Star: (4-25-07)

On the neighborhood-preservation overlay, the council unanimously voted the delay action because [Tuscon City Councilwoman] Trasoff said "we want to do it right."
A group of property owners contends the zone would restrict uses of their land, which flies in the face of Proposition 207, a ballot initiative passed last year requiring governments to compensate landowners if the governments impose land-use rules that reduce property values.
"We don't want this to come back on us," Trasoff said.
Good Thimking ... Thimk, before you mess up!
Big Rattler

Tuesday, April 24, 2007

Dorm you Tucson -- Mini-Dorm you

Excerpts from:

The Arizona Daily Star

Published: 04.24.2007

By Rob O'Dell
Midtown residents looking for relief from "minidorms" sprouting up around the UA could see a big move by the city toward giving them the protection they seek today. 
After a public hearing, the Tucson City Council is poised to create a test "neighborhood preservation" zoning ring around the University of Arizona — an overlay zone that could impose restrictions on such things as building heights, setbacks or lot sizes that are more stringent than would normally be allowed. [...]
Prop. 207 could come into play
Several property-rights advocates warned that the proposed city ordinance could trigger the first Proposition 207 lawsuit.
Both sides will voice their concerns during a public hearing at 5:30 p.m. today in the Mayor and Council Chambers at City Hall, 255 W. Alameda St. [...]
"It's essentially a perimeter around the university," Councilwoman Karin Uhlich said of the proposed pilot program. She said she hopes to have the specific restrictions and how broad an area would be covered ready for final council action in two to three months.
Property owner objects
Richard Studwell, a property owner in the Jefferson Park Neighborhood, said creating a pilot program around the entire university without even waiting for petitions from neighborhood residents would make the ordinance worse, not better.
"They are looking to do this no matter what — that's the problem," Studwell said.
He said he "absolutely" thinks the ordinance will become a test case for Proposition 207, because it would limit the size and number of houses on his properties, thereby decreasing the potential value of his land.
Contact reporter Rob O'Dell at 573-4240 or rodell@azstarnet.com.

End Note:  I should add to Mr. Studwell's remarks above because the reporter left this most important fact out of the story.  Studwell said, "...it would limit the size and number of houses on his properties ... "  The factual addition is -- that is allowed by current zoning law.
Apparently, these mini-dorms make economic sense since they are located near the university and property owners are wanting to build more as allowed by current law.  As the population of the university increases, likely the demand for mini-dorms rises, too.
The typical government solution to housing issues ... crush the private sector and create subsidized government housing, then raise taxes on diminished property values to help cover the increased costs of government services such as fire, police, etc., due to the increase in population.  Just another statist solution.

Monday, April 23, 2007

Prop 207 -- Won't stop global warming

This backhanded attack on private property rights, using Prop. 207 as it's straw man, reveals the true agenda of the far-left radical environmentalists: LAND CONTROL!
Remember, opponents of Prop. 207 and other private property rights measures were backed by some of the most land-grabbing groups financed by billionaires such as George Soros and Ted Turner.
A story in the Arizona Republic (4-23-07) reports that the failure of Bush (right on cue for the liberal media, i.e., Blame Bush) to support the Kyoto Protocols has led to many U.S. cities to start the process of adopting local measure that will kill jobs and drop the standard-of-living. (My words)
Phoenix has contacted ICLEI, a national organization that helps cities set up climate-change programs, to find out how to address greenhouse-gas emissions.

Cost is also a factor.

A greenhouse-gas inventory could run $75,000 to $100,000, according to Phoenix estimates. Staff are seeking City Council approval to do an inventory.

Other mayors said local politics would not favor the agreement. Gilbert Mayor Steve Berman said he could not agree to reduce sprawl because it would conflict with the property rights protections of recently passed Proposition 207, which limits government's ability to change land-use laws.

"I'm not going to pledge to do something that I know going in I can't do," he said.

Indeed, some signatories have said they will not meet the emission-reduction goals by 2012.

There are no penalties for not meeting the goals. No one tracks emission reductions achieved as a result of the pledge.

Groups such as the Sierra Club and Republicans for Environmental Protection are lobbying mayors to sign. The latter is trying to sell cities on the cost savings of energy efficiency.
Without passage of Prop. 207, the greedy government land grabbers would be sticking it to property owners under the guise of global warming.
History is clear ... the biggest pollution problems and lack of regard for our environment came from those who controlled ALL the land within their borders ... the former Communist Soviet Union.  Government land control is not the solution to a clean environment.
P.S. Please note the "Republicans for Environmental Protection" and their misuse of the GOP to promote energy efficiency.  Does anyone know if their leaders have a vested interest in a particular company that supplies energy efficiencies?
Let me know,
Big Rattler

Thursday, April 19, 2007

Department of Rendundancy Department

The City of Peoria, AZ, still in a panty-bunch over citizen's demanding their property rights by overwhelmingly approving Prop. 207 last general election, has passed an ordinance outlining in their opinion, "who can file a claim" and "defines certain terms and prohibits the approval of a project if the applicant fails to sign a Proposition 207 waiver."

What a bunch of arrogant buttercups. The City cannot decide "who can file a claim," the citizens who passed Prop. 207 decided that issue. Moreover, the arrogant buttercups think they can still whip-saw property owners, especially if the property owner refuses to sign a Prop. 207 waiver.

Most of those waivers are likely to be litigated in favor of the property owners for the simple fact that said waivers appear to be an illegal "adverse contract," whereby one party has the upper hand in the negotiations to the point where it is a take-it-or-leave-it negotiation.

While that might be fine for buying milk at the local grocery store, the property owner still has a bundle of rights at his disposal to use against such ham-handed buttercups. Prop. 207 was about property owners not getting pushed around by the local commissars.

Again, we pay their salaries and they should quit trying shove property owners around. They pushed too far and got shoved back with Prop. 207. Don't think the property owners won't shove back again against the arrogant Peoria buttercups come next election.

Here is the news story and link...

http://www.azcentral.com/news/articles/0419gl-peocouncil18-ON.html #

City ordinance clarifies land-use lawsuits

Cecilia Chan
The Arizona Republic
Apr. 19, 2007 10:30 AM

Peoria on Tuesday became the first city in Arizona to clarify a state land-use act that threatens municipalities with lawsuits.

Voters last year approved Proposition 207, which allows people to sue a governmental entity for compensation if their property value diminishes because of a land regulation, such as zoning.

"The ultimate goal is to provide as much clarity and certainty, as much as we can," City Attorney Steve Kemp said. "We are leading the pack."

The ordinance approved by the City Council makes clear who can file a claim, defines certain terms and prohibits the approval of a project if the applicant fails to sign a Proposition 207 waiver.

For example, the ordinance lists a number of exemptions where the city does not recognize a claim for just compensation, including if a land-use law was enacted before the act's effective date of Dec. 5 or if it does not directly regulate an owner's private real property.

Kemp said staff worked with the development community on the ordinance.

"It is a huge step forward for us to put some backbone, especially for the city of Peoria, behind this proposition," Councilwoman Cathy Carlat said.

Kemp said other cities were looking at enacting similar ordinances.

Since the state law took effect, Peoria has been requiring people requesting a land-use change to sign a waiver.

The other options for the city, which were deemed long shots by legal staff, included securing a three-fourths vote on an amendment from the state Senate and House, pass another initiative to fix the problem or have the courts clarify the rules.

Saturday, April 14, 2007

Property Protected by fellow citizens

Idaho and Arizona (and some other states) had on the ballot last election initiatives to protect private property from the nefarious practice of government regulating away a large portion of the value of property via "regulatory takings."
Owners had little to zero recourse from ham-handed regulators and many times, as the story below describes, they were also subject to the whims of the "in crowd" and their cronies.
Arizona passed their initiative which protected private property from regulatory takings -- Prop. 207.
In Idaho, the high-powered Republican political elite joined forces with far-left liberal billionaires George Soros, Ted Turner and other environmental extremists plus the misguided leadership of the Idaho Realtors to defeat the private property protection initiative -- Prop. 2.
Below is a story about how the successful Arizona initiative is working to protect property values from government takings.
Idaho is still legally "naked" against regulatory takings ... directly because of power hungry GOP elected officials.  Seems they will sleep with anyone to get elected and protect their power.
Hooray for Arizona!

Developer takes on city hall and wins, thanks to Prop. 207

By Laurie Roberts -- Republic columnist -- Apr. 14, 2007 12:00 AM

Score one for that most beleaguered of men, the one whose land the city has plans for.

The Phoenix City Council went into full retreat this week, repealing the historic designation it had slapped on a swath of land in central Phoenix. Not only did city leaders back away from their earlier decision to block a guy from doing what he's legally entitled to do with his own land, they declared their fallback an emergency.

"I still think it was the right thing to have a historic overlay on it," a slightly grumpy Phoenix Mayor Phil Gordon told me. "But it (the repeal) was on the advice of attorneys. I've got a fiduciary duty to the citizens not to risk $40 million."

Turns out it can be downright pricey to trample people's rights. Has been ever since November when 65 percent of voters ushered in Proposition 207, the Private Property Rights Protection Act.

Not a moment too soon, as it turns out, for Scott Haskins and the other landowners along the north side of McDowell Road, between 11th and 15th avenues.

A year ago, Haskins bought the Palmcroft Apartments, two blocks of ratty apartments. They were built in 1943 as war housing, and I imagine they were decent in their day. You know, along about the time of the Eisenhower administration.

In more recent decades, they have become what that area's police commander tactfully described to me as "the cancer complex of the neighborhood." So along comes Haskins, who buys the place and cleans it out, earning the undying gratitude of many in neighboring Palmcroft.

Haskins, an investor from Santa Barbara, Calif., did his homework before plunking down $5.4 million for the land, making sure the city's rules would allow him to tear down the apartments and put in luxury condos. They did.

What he didn't count on was G.G. George, a self-appointed activist who has the ear of the area's councilman, Doug Lingner. When George speaks, Lingner listens. Which is how Haskins' property came to be declared historic.

Normally, such matters are initiated by the city's Historic Preservation Commission but only after two-thirds of the affected property owners approve. Lingner got his pals on the City Council to bypass such niceties. In November, they declared the area historic over the objections of every landowner affected.

Given the historic status, Haskins was blocked from demolishing the apartments for a year and then would have been forced to jump through an array of city hoops, giving the city control over what he could build and how it could look.

So he filed a $40 million lawsuit, claiming that under Proposition 207, the city was lowering the value of his land. City pols disagreed but hotfooted it on Wednesday to undo their handiwork.

Gordon was almost wistful on Thursday when he talked about the Palmcroft Apartments. He suspects Haskins is out to make a fast buck, not a place of distinction. "Those apartments could have been beautiful restored," Gordon said.

Those apartments weren't beautiful in their best day and to be kind, that day ended before I was born. But if there is a gem there, hidden by generations of grime and neglect, why wait until Haskins comes onto the scene to look for it?

This isn't about a city saving history. It's about a city controlling property. Which wouldn't be so bad, except that it isn't their property. It belongs to Haskins. "They wanted to play Socialist Republic of Phoenix and got their hands slapped, hard," he told me.

His plan shows condos up to four stories, as the zoning allows, condos he promises will be an architectural point of pride. I hope so. He's already made his mark on this place once. He's the guy who took on city hall shenanigans and won.

It almost seems - dare I say it? - historic.

Reach Roberts at laurie.roberts@arizonarepublic.com or (602) 444-8635.

Tuesday, April 3, 2007

Dubbed "The Stubborn Nail"

Here is photo of government at work. In this case China. A residence stands alone in the middle of a project. (Thank you Arizona voters for Prop. 207 private property rights protections).

This photo and its location (China) make the full story a bit perplexing especially as it relates to China's "evolving" property rights as if there are any in said country. May some property rights are indeed on the horizon, given this successful defiance, which would be a huge liberty boost within China. The reporter does little to clear the confusion, but the visual is what led me to forward this on to you.

I've included the photo and caption, with excerpts from the story (below) and the link, in case your interest is peaked.

(CAPTION) Chinese workmen demolished a house, seen here March 2007, that attained almost iconic status because of its owners' refusal to move for a huge property project. However, Wu Ping and her husband's three-year battle may have paid off with a court in Chongqing announcing they would be given a new home nearby valued at about three million yuan (390,000 dollars).(AFP/File/Mark Ralston)

News Story Excerpts:

CHONGQING, China (AFP) - Workmen in China demolished a house that attained almost iconic status because of its owners' refusal to move for a huge property project, but their three-year battle may have paid off. [...]

Their plight -- thrown into the spotlight partly thanks to dramatic photos of the house sitting in the middle of a massive pit excavated around it -- became a symbol of the little man's defiance of China's moneyed interests.

However the couple appeared to have been rewarded handsomely for holding out, with a court in Chongqing announcing Tuesday they would be given a new home nearby valued at about three million yuan (390,000 dollars).

In addition, they were awarded 900,000 yuan in damages because the developer had cut off water and electricity, and blocked traffic to their home during the three-year stand-off. [...]

Wu had incessantly accused the local government of collusion with the developer, while refusing to bow to the strong-arm tactics aimed at getting rid of her home.

Earlier this year, she filed a lawsuit maintaining that she could not be forced to give up her home.

The Stubborn Nail's case hit such a nerve in China because similar disputes are plaguing the country.

While Wu was able to stand up to the powerful and wage a high-profile publicity campaign rarely seen in China, people in countless other cases have lost their property without adequate compensation.

According to the latest figures from the Ministry of Public Security, there were 87,000 protests in 2005, many of them to do with land grabs. Such protests are often crushed by security forces. [...]

The national parliament passed a landmark law last month that solidified private property rights, partly to combat such disputes.

While Wu waged her publicity campaign, her husband had staged a vigil in the home over the past week, at times waving a national flag.

During his vigil, Yang Wu also hung a banner out of the house that read: "The legal private property of citizens cannot be violated," echoing wording in the country's new property law.

Link: http://news.yahoo.com/s/afp/20070403/wl_afp/chinapropertydispute_070403120212

Thursday, March 29, 2007

Water adequacy a murky bill (Prop. 207)

There is an old saying about legislation: "What the big print giveth, the fine print taketh away."
A perfect example of this is SB 1575 and HB 2693, currently on a fast track through the Legislature regarding subdivision water adequacy determinations by the Arizona Department of Water Resources.
The big print has been touting these as a local control issue. The bills purport to give a new power to local governments by allowing them to deny subdivision approval outside an Active Management Area for a proposed subdivision that has received an inadequate water determination by ADWR.
Current law, ARS 9-463.01, already clearly provides that cities and towns may deny subdivision approvals based on a lack of water. Net local power gained by this new proposal is zero.
Also under current law, local governments have the power to grant exemptions if an inadequate designation is made by ADWR because there may be other local mitigating factors. These exemptions require full disclosure to the buyers. Under these bills, exemptions can be granted by ADWR only. Local control lost, not gained.
These bills provide that local governments may adopt these provisions but (here's the fine print) once they "opt in" they can never rescind the provisions. So much for local control over local ordinances. This is clearly a net loss of local control.
Over 100 years of Arizona groundwater laws have been based on the concept of "beneficial use."
Anyone, at any point in time, has the right (assuming one meets other criteria regarding parcel size, etc.) to drill a well if the water will be put to a beneficial use.
Surface water laws are based on an entirely different concept called "first in time, first in right." This means a water right that is claimed prior to others has the first right to a full water allocation before any others may use their water right, even if the first claimant is downstream of subsequent claimants.
These bills would change the groundwater laws to conform with the surface water law concept.
ADWR could determine that the first subdivision applicant for groundwater would receive an adequate designation, the second subdivision applicant could receive an inadequate designation even though both were in the same area.
Two major issues arise with this monumental change in water policy.
Last year, the voters overwhelmingly supported Proposition 207 to protect private property rights. Prop. 207 provides that any new land use law enacted that decreases the value of a landowner's property requires compensation for that loss of value.
There is no question that a loss in value will be claimed by some landowners who are denied subdivision approval based on an inadequate water determination.
Prop 207 contains an exemption based on health and safety issues - however health and safety limitations are not defined. These issues will ultimately be resolved by the courts but the question is, who has the liability in the event the landowner is successful in winning a compensation claim for value lost?
ARS 45-108G states "the state of Arizona and the director of the department (ADWR) shall not be liable for any report, designation or evaluation prepared in good faith pursuant to this section."
In asking the question regarding potential liability, this is the response from ADWR attorneys: "Although the adequacy bill authorizes cities, towns and counties outside of AMAs to enact a mandatory inadequate water supply requirement, it does not require them to do so.
"If a city, town or county decides to enact a mandatory inadequate water supply requirement, the enactment of the requirement by the city, town or county would be the action that would potentially be subject to a Prop 207 lawsuit, not the state's action in passing the adequacy bill or ADWR's action in determining that the subdivision has an inadequate water supply."
Local control, in this case means only one thing: total local liability for potential claims.
The second, and perhaps the more important issue, is not even in the bills before the Legislature. These bills do not address the issue of lot splits or domestic exempt wells.
Even if a local government denies subdivision approval based on an inadequate water supply, the landowner, under current (and continuing) law, may still divide the land creating lot splits that will allow a well to be drilled on every subsequent parcel created.
The net result in that more groundwater will be used than would have been used by the subdivision.
The U.S. Geological Survey estimates that exempt wells pump approximately three times the amount of water used by municipal users. The subdivider could have potentially recharged up to 60 percent of the water through a wastewater treatment system. Recharge is something that can't be done in an area of exempt wells and individual septic systems.
If our ultimate goal is to use less groundwater, these bills fail miserably in that regard.
The bottom line is these bills are not even a step in the right direction toward a sustainable water supply for future generations.
We must, however, continue to look for practical answers to meet these difficult challenges.
To the public, local governments and legislators; Don't swallow the "local control" sound bite. These bills don't giveth local control, they taketh it away.
Carol Springer is a member of the Yavapai County Board of Supervisors, a former state senator and former state treasurer and co-chairman of the successful effort to enact Prop. 207.

Tuesday, March 27, 2007

Prop. 207 -- Springer doesn't like Mason's water bill

The Daily Courier

Tuesday, March 27, 2007

Yavapai County Supervisor Carol Springer, a former state senator who was intimately involved in water legislation, is attacking far-reaching water bills that appear to be moving toward legislative approval.

The companion bills have received widespread support among municipalities in Yavapai County. The Senate already has approved its version.

The bills would let local governments adopt a "water adequacy rule" that would allow them to deny the creation of subdivisions if the Arizona Department of Water Resources concludes they don't have adequate water supplies. Rep. Lucy Mason, R-Prescott, is sponsoring House Bill 2693 while Senate Minority Leader Marsha Arzberger, D-Willcox, is sponsoring the companion Senate Bill 1575.

"There has been so much positive movement on these bills to address everyone's concerns over the last six months," Mason said. She and Springer have not talked about Springer's issues.

A final vote in the House is on hold while legislators wait for a companion bill to catch up, Mason said. The companion bill creates a loan fund to help local governments build water infrastructure, as long as they have adopted the adequacy rule. Mason said she will make sure HB2693 matches SB1575.

The bills stem from recommendations by the Statewide Water Advisory Group, which the state created to come up with recommendations to improve rural water management.

"There is an old saying about legislation: 'What the big print giveth, the fine print taketh away,'" Springer said. "These bills don't giveth local control, they taketh it away."

Mason and Arizona Department of Water Resources Director Herb Guenther disagree with Springer.

This bill is a major step toward protecting Arizona residents' water supplies, Guenther said.

"Water law in Arizona is dysfunctional as it stands now," Guenther said. "In fact, rural water management is dysfunctional. We allow mining (depletion) of groundwater, and all that means is, we're putting off the problem to future generations."

Springer, who chaired the successful petition drive to get Proposition 207's protections against "government takings" into law this past fall, says the bills will set counties up for lawsuits based on Prop. 207.

So far, no one has tested Prop. 207 in court. Springer says she doesn't want Yavapai County to be the first test, especially since the local government also might have the expensive burden of proving a water supply is inadequate.



Tuesday, March 20, 2007

Prop. 207 poll

Should local governments burden property owners with forced Prop. 207 waivers?
pollcode.com free polls

Friday, February 23, 2007

How Prop. 207 really works

Dear Rattlers:

Here is a quick clip about the town of Taylor, AZ which is in the process of annexing some parcels from Navajo County. With just a little consideration of Prop. 207, everybody wins. The town gets its annexation and the property owners are protected from forced down-zoning and the accompanying decrease in property value.

It's so nice to see a few of our elected officials operating like adults and not a bunch of ham-handed commissars who force their will on the very people who pay their salaries.

Keep rattling,
Big Rattler

Taylor Council Votes To Annex Solomon Manor -- By Naomi Hatch

[Taylor, AZ Town Manager Stephen] Sturgell said that they have met with some problems because there are some subdivisions that have CC&Rs (covenants, conditions and restrictions) that require two-acre lot minimums on agricultural land. Sturgell also explained that agricultural land annexed from Navajo County that comes into the town comes in as one-acre lots.

Town Attorney Sterling Solomon has been looking into this problem and said there is good news, in that the town can amend the zoning code. Because of Proposition 207, they must be careful where they amend the zoning code so that it does not decrease property value.

Tuesday, February 20, 2007

Gov't "Forced Waivers" = Adhesion Contract

Since Arizona voters enacted Prop. 207 by an overwhelming 65% margin, the local land use commissars and their statist allies have been working overtime to scheme on ways to circumvent the new private property rights protections now enjoyed by voters.

As outlined in previous posts, the local officials concocted these outrageous "forced waivers" that appear to prohibit property owners from exercising their Prop. 207 rights to just compensation for regulatory takings.

These "forced waivers" for simple administrative acts like submitting plans or applying for an electrical permit are clearly out of bounds and obviously a backhand by the commissars to the voters.

But legally, these "forced waivers" are likely illegal. The legal terminology is "Adhesion Contract."

Definition: adhesion contract n.

(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained.

Example: a rich landlord dealing with a poor tenant who has no choice and must accept all terms of a lease, no matter how restrictive or burdensome, since the tenant cannot afford to move.

An adhesion contract can give the little guy the opportunity to claim in court that the contract with the big shot is invalid. This doctrine should be used and applied more often, but the same big guy-little guy inequity may apply in the ability to afford a trial or find and pay a resourceful lawyer.

While we routinely enter into adhesion contracts (also known as take-it-or-leave-it), such as buying groceries or insurance; when the ability to negotiate is absent or limited, the adhesion contract of "forced waivers" are likely illegal.

The good news is a few of the city/town employees seem to be getting the message that they were hired to help citizens and not go out of their way to make our lives miserable. They are not on our payroll to piss-and-moan about not getting their way of micro-managing our lives.

We say, "Thanks but no thanks! Now, get back to work."


Big Rattler

Monday, February 19, 2007

Attorneys consider Arizona Proposition 207 ‘earthquake’

By Philip S. Moore, Inside Tucson BusinessPosted: Friday, Feb 16, 2007 - 04:26:45 pm MST

If the evolution of land use law is like geology, where centuries of imperceptible change are punctuated by sudden shocks, the passage by Arizona's voters of Proposition 207 is comparable to the 1905 San Francisco earthquake.

Culminating a process that began in the 1980s, when the a series of legal decisions began to offer greater protection of private property rights, attorney Frank Bangs Jr. said the vote to restrict eminent domain and rules that impact land use is this kind of "seismic event," that dramatically alters the landscape for governments and property owners, alike.

To help planning officials, attorneys and property owner to navigate this new environment, Bangs and fellow land use attorney Keri Silvyn spoke about the new law and its implications at a special Feb. 14 seminar, co-sponsored by Lewis and Roca and Inside Tucson Business.

Following on the 2003 Bailey vs. Myers decision in Mesa, which curtailed the ability of a municipality to use eminent domain to support privately sponsored redevelopment ventures, Bangs said the 2006 vote goes even further in protecting property owners.

It give them the right to seek compensation for attorney's fees and makes it clear to cities and towns that eminent domain is no longer a free pass. Neither are land use rules, Silvyn said. Regulatory takings, land use rules that affect the use of property and its value, have been subjected to increased scrutiny and tighter regulation for two decades. With Proposition 207, the protection offered landowners has reached a new level, shifting the burden of proof and expense to the regulators.

That's a good thing, said Clint Bolick, senior fellow at the Goldwater Institute and a Proposition 207 sponsor. A panelist at the seminar, he said, "More than anything else, I think it should change the way Arizona is governed." The voters also sent a strong signal that they don't trust local officials. "Government is convinced its acting for the public good," he said. "Now, they have to have to ask themselves if they value what they want to do enough to pay for it."

This might have been the intention of Proposition 207, but another panel member and Pima County Administrator Chuck Huckelberry said, "Initiatives are a poor way to govern." He said implementing public policy means planning. That means placing limits on land use.

"Landowners shouldn't expect a reward for not planning." Ultimately, decisions will need to be made on what's covered by the Proposition.

Although based on Proposition 37, approved by Oregon's voters in 2003, panelist and land use attorney Mary Beth Savel said there are many questions that Arizona's courts will need to decide. "What is regulation? What does 'land use' mean?

Is a policy a land use law, and what is diminution of value?" Also, "zoning should apply equally for all property in that zone," she said. If local governments choose to resolve regulatory problems due to Proposition 207 by granting exemptions, that uniformity goes away, "and that's going to create a public policy problem."

One thing no local government should contemplate is attempting to circumvent the new law, said panelist Frank Cassidy, attorney for the Town of Marana. Noting Scottsdale's new Proposition 207 waiver for any land use request, he said, "They should reconsider."

An overly broad liability waiver could be considered an "adhesion document," and therefore void, and it doesn't relieve a local government from the federal and state laws already protecting property owners.
"For government lawyers, land use protection like Proposition 207 is a troubling idea, since governments tend to pass regulations to try to help people."

However, to attempt to circumvent the law "is playing into the hands of the people who supported the proposition. You're demonstrating that government can't be trusted."

Friday, February 16, 2007

Arizona property owners asked to waive some rights


10:23 AM MST on Monday, February 12, 2007
Associated Press

TUCSON, Ariz. (AP) -- Property owners across Arizona are being asked to waive their rights to be compensated for lost property value if they decide to develop their land.

Proposition 207, which was approved by voters in November, expanded property rights in Arizona so that landowners can file claims when government land-use rules lower their property value.

Government officials say one problem with the law is that it appears to allow someone to request a rezoning and then file a claim, seeking monetary damages because the rezoning lowered the property's value.

"The way that lawsuits happen today, I don't think it's unreasonable," said Ken Strobeck, executive director of the League of Arizona Cities and Towns. "It's illogical, but it's not outside the realm of possibility."

Officials say closing that loophole could keep taxpayers safe from frivolous lawsuits.

The League of Arizona Cities and Towns is encouraging its members to adopt waivers in which the person seeking a rezoning or conditional use permit agrees not to seek claims for the specific action requested.

Pima County and Marana have used similar language in rezonings approved this year, Sahuarita is working on a waiver and Tucson plans to make the waivers standard.

But some cities are using broader waivers.

Strobeck said he suspects some of the waivers will end up in court.

One city that has drawn attention is Apache Junction east of Phoenix. Its waiver includes language that indemnifies the city, effectively barring lawsuits.

Apache Junction City Attorney Joel Stern said he was trying to protect the city from claims about the specific action being sought, not from all claims.

But one applicant who wanted to change some of the conditions on a permit objected to the waiver, saying it was depriving him of his rights under Proposition 207.

Stern said he is working with the applicant on language he would find acceptable.
"We don't want to be the first test case," Stern said.

Some property-rights advocates say the waivers could allow governments to cross the line.
"It appears to be an attempt to repeal Proposition 207," said Clint Bolick, a senior fellow at the Goldwater Institute, a libertarian think tank. "It's unfortunate that governments are looking for ways not to comply but to evade it. It's that kind of arrogance that led voters to endorse Proposition 207."

Monday, February 12, 2007

Facts that make some facts fiction

During the successful campaign to enact Arizona’s Prop. 207, many of governmento-crats and liberal media-crats in fact made claims that were fiction.

Pre-election facts--

FACT: Ken Strobeck, Arizona League of Cities and Towns, said prior to the election on the Horizon’s program (PBS Ch. 8): “[Passage of Prop. 207] in the sense that it would essentially freeze all zoning and land use regulation just the way they are today.”

FACT: Arizona Republic (10-08-06) editorial: “Arizona would be frozen. Locked into today’s rules despite tomorrow’s differing needs.” (sic)

Post-election facts--

NOT “FROZEN” FACT #1: Attorneys for the Fain Signature Group, which owns the affected 57 acres, applied for the General Plan amendment to encourage higher-intensity development.
The land in question is in the Town Center, north along Lakeshore Drive across from the Prescott Valley Civic Center.Community Development staff stated that the amendment would create a "main street and business core atmosphere."
"We realize all the development that has taken place in the area" since the community adopted the General Plan in 2002, planner Joe Scott told the council.
Scott said nobody spoke against the proposal when the Planning and Zoning Commission reviewed it Jan. 8, adding that the commissioners unanimously supported it as well.
Nobody spoke out against the amendment during the council meeting, and the council members voted 7-0 for it. (Source: Prescott Daily Courier 2/10/07)

NOT “FROZEN” FACT #2: Consideration of Public Hearing (PC LUP 2006-003): A proposed amendment to the Flagstaff Area Regional Land Use and Transportation Plan to change the land use designation for approximately .66 acres of land located at 2650 South Beulah Boulevard from Urban Open Space to Commercial Regional Category.

Vice-Mayor Overton moved to close the public hearing, seconded by Councilmember Haughey. The vote was unanimous in favor. (Flagstaff City Council Minutes - 12-19-06)

Fact of the Facts--

It is a fact that in spite of the overheated phony “frozen” claims by opponents of the private property rights protections enacted by Prop. 207, in fact land use is NOT “locked into today’s rules despite tomorrow’s differing needs.”

Big Rattler could fill up another blog reporting the factual instances where land use changes every day in Arizona. These two examples make the point snappingly clear.

These facts make is hard to believe anything the governmento-crats and liberal media-crats say.

Sunday, February 11, 2007

Just the Prop. 207 Facts

Thursday, January 18, 2007

Proposition 207 could affect land use decisions

Thursday, January 18, 2007

PRESCOTT -- Arizona voters approved Proposition 207, the Private Property Rights Protection Act, Nov. 7, 2006. The governor signed it into law a month later.

Deputy County Attorney Randy Schurr told the Board of Supervisors Tuesday the proposition has two major components.

Schurr said the first component deals with eminent domain. In the past, governments could seize private property only for a public purpose.

Schurr said the U.S. Supreme Court ruled that economic development is a public purpose. However, he said this part of Prop. 207 has little effect on the county.

The reduction in value component is more important, Schurr said.

"In the past, the reduction of property value was not eligible for valuation compensation unless the value was reduced to nothing," he said.

When voters passed Prop. 207, Schurr said property owners are eligible for compensation if their property value decreases because of a zoning or land use change.

"If there is a reduction in the right to use the property, there could be a reduction in the value," he said.

Chairman Chip Davis asked if the denial of a use permit or a change to adjoining property qualifies as a reduction in right.

Supervisor Carol Springer said, "A neighbor has no claim unless his or her property is directly affected."

Schurr noted that the law is not retroactive. He added that the original property owner must file the reduction in right claim.

The deputy county attorney said Prop. 207 includes a three-year statute of limitations for filing a claim and governments have 90 days to respond to the claim.

The Road to Serfdom (Ch IV)

Here are a couple of nuggets that reveal the "planners" mindset and why they hate the Private Property Rights enacted in Arizona's Prop. 207. This anti-competition, pro-planning monopoly is nothing new.

Many years ago in his most famous book "The Road To Serfdom," Nobel Laureate F.A. Hayek concisely explained the nanny-state planners desire to control and why we should avoid their false seductions.

Hayek's excerpts:

The Road to Serfdom (Ch IV)

The "Inevitability" of Planning

We were the first to assert that the more complicated the forms assumed by civilization, the more restricted the freedom of the individual must become. -- Benito Mussolini

Most (planners) affirm that we can no longer choose but are compelled by circumstances beyond our control to substitute planning for competition. The myth is deliberately cultivated that we are embarking on the new course not out of free will but because competition is spontaneously eliminated by technological changes which we neither can reverse nor should wish to prevent.

The tendency toward monopoly and planning is not the result of any "objective facts" beyond our control but the product of opinions fostered and propagated for half a century until they have come to dominate all our policy.

What planners generally suggest is that the increasing difficulty of obtaining a coherent picture of the complete economic process makes it indispensable that things should be coordinated by some central agency if social life is not to dissolve in chaos. This argument is based on a complete misapprehension of the working competition. Far from being appropriate only to comparatively simple conditions, it is the very complexity of the division of labor under modern conditions which makes competition the only method by which such coordination can be adequately brought about.

It is no exaggeration to say that if we had had to rely on conscious central planning for the growth of our industrial system, it would never have reached the degree of differentiation, complexity, and flexibility it has attained. Compared with this method of solving the economic problem by means of decentralization plus automatic coordination, the more obvious method of central direction is incredibly clumsy, primitive, and limited in scope. That the division of labor has reached the extent which makes modern civilization possible we owe to the fact that it did not have to be consciously created but that man tumbled on a method by which the division of labor could be extended far beyond the limits within which it could have been planned.

Any further growth of its complexity, therefore, far from making central direction more necessary, make it more important than ever that we should us a technique which does not depend on conscious control.

There is yet another theory which connects the growth of monopolies with technological progress. It contends not that modern technique destroys competition but that, on the contrary, it will be impossible to make use of many of the new technological possibilities unless protection against competition is granted, i.e., a monopoly is conferred. No doubt in many cases it is used merely as a form of special pleading by interested parties.

While it is true, of course, that inventions have given us tremendous power, it is absurd to suggest that we must use this power to destroy our most precious inheritance: liberty. It does mean, however, that if we want to preserve it, we must guard it more jealously than ever and that we must be prepared to make sacrifices for it.

While there is nothing in modern technological developments which forces us toward comprehensive economic planning, there is a great deal in them which makes infinitely more dangerous the power a planning authority would possess.

We all think that our personal order of values is not merely personal but that in a free discussion among rational people we would convince the others that ours is the right one. The lover of the countryside who wants above all that its traditional appearance would be preserved and that the blots already made by industry on its fair face should be removed . . . know that (his) aim can be fully achieved only by planning.

The movement for planning owes its present strength largely to the fact that, while planning is in the main still an ambition, it unites almost all the single minded idealists, all the men and women who have devoted their lives to a single task.

It (planning) would make the very men who are most anxious to plan society the most dangerous if they were allowed to do so – and the most intolerant of the planning of others.

From the saintly and single-minded idealist to the fanatic is often but a single step.

Quotes from Chapters I & II can be viewed here: http://www.freerepublic.com/focus/f-news/1775089/posts
Chapter III:
THE ROAD TO SERFDOM in movie form, 5 minute cartoon:

Friday, February 9, 2007

Watch the "Forced Waiver" debate on government TV

KAET-TV Channel 8
Horizons Program -- Wednesday, February 7, 2007 
· Prop 207 Waivers
Private property activists are crying foul as valley cities hand out waivers to prop 207 to development planners and others seeking zoning changes. Ken Strobeck, Executive Director of the League of Arizona Cities and Towns, and Lori Klein, the Executive Director of Arizona Homeowner Protection Effort are guests.
The video runs 9 minutes 31 seconds.
(Here is the link to video page just in case you have a little problem with the above links: http://www.azpbs.org/horizon/watch.asp#)

Sneaky AZ cities dodge new property-rights law

Look at this well-crafted article from Clint Bolick.
He opines: "Luckily for those who find themselves faced with this Hobson's choice, the waivers are blatantly unconstitutional. The U.S. Supreme Court has made it clear that government can't condition a benefit on the surrender of rights."
Big Rattler says it's time to tell your local elected commissar to, "Knock off with the funny business, get back to work and make our lives eaiser, not harder.  That's what we are paying you to do."
Snapping fast,
Big Rattler

The Arizona Daily Star

Published: 02.08.2007

By Clint Bolick, Phoenix attorney and a senior research fellow at the Goldwater Institute.
Just two months ago, Arizona voters sent a resounding message to their government: hands off our property.
Passing Proposition 207 by a 65 percent majority, despite doomsday scenarios from elected officials and bureaucrats, the voters put the clamps on regulations that exceed normal governmental purposes and diminish the value of private property (known as "regulatory takings").
Given that public officials are sworn to uphold the law, one might expect them to figure out how to comply with the new limits. But, of course, most of the ingenuity is being poured into how to evade them.
The East Valley Tribune last week reported that a slew of cities have come up with a nifty way to nullify Proposition 207: Whenever property owners ask permission to develop their property, cities force them to sign a waiver of their Proposition 207 rights.
Some cities are focusing just on the specific transaction — they don't want the owner to be able to sue them — but others are asking property owners to sign away all of their Proposition 207 rights and to bind anyone who purchases the property in the future.
Developers, who must keep on the good side of city governments, will feel bound to sign the "voluntary" waivers; as will ordinary property owners who merely want to add a second story to their homes or build a pool.
Luckily for those who find themselves faced with this Hobson's choice, the waivers are blatantly unconstitutional. The U.S. Supreme Court has made it clear that government can't condition a benefit on the surrender of rights.
Moreover, if the government exacts something of value in exchange for a development permit, there must be a "substantial nexus" between the exaction and the permit. If you want to build a hardware store, for instance, the city might require you to contribute to public parking, but it can't force you to forever sign away your rights to sue the city.
That's called extortion, and it's not allowed, even by the mayor.
Proposition 207 established a simple principle: Outside of the normal bounds of health, safety and other traditional governmental purposes, if a city takes something of value from one of its citizens it has to pay for it.
But government kleptomania is too widely entrenched for local governments to abandon it easily.
Too bad we'll all have to foot the bill if the cities persist and someone has to sue them to establish that the law means what it says.
Write to Clint Bolick at cbolick@AllianceForSchoolChoice.org.

Egad! Our fearless bureaucrats are teaching us how to be good little people

Fellow Citizens:
The story below represents the ARROGANT mind-set that we have allowed to foster in our bureaucratic employees.  Remember ... they work for us, they are on our payroll.
Fortunately, passage of Prop. 207 by an overwhelming margin of 65% not only protects our private property from eminent domain abuse and the nefarious practice of regulatory takings, but it will focus the thinking of our government employees.  In other words, it takes away their "mental green card" to be arrogant.
Here is what's arrogant with the incidents reported in the story below:
1.  The school district requested and "up-zone" from residential to commercial to build a new school district office. OK.  99.9% of the time an up-zone from residential to commercial results in the parcel becoming more (not less) valuable. Prop 207 only kicks in when an owner loses property value directly from a government action.

2.  If, as the story reports, the property with the new up-zone somehow decreased in value in the future, what grounds would a suit be based upon against the city for ACTION THE OWNER SPECIFICALLY REQUESTED!?!  Does this sound rational, "I made a mistake asking for the zoning change and the city with all their planning expertise should have known better and not let me do it ... they should have protected me from my stupidity ... now my property is worth a lot less so give me some money because it is the city's fault."

3.  If this had occurred in Apache Junction, even getting the electrical permit might have required signing a government imposed 207 forced waiver.

The facts are that in very rare instances one of the government forced waiver might (repeat, might) be in order.  For instance a large planned development might have some parcels of the larger plan where some planned open space may be down-zoned.  The city/county might be open to a Prop. 207 claim on the down-zoned open space parcels.  Might.  The developer would still have to overcome the argument that even though the down-zone was requested, now demands money.  It is a steep legal hill to climb.
Both notable Arizona attorneys Clint Bolick (former Institute of Justice) and Gary Lassen (successfully defended Prop. 207 against legal attacks from cities/counties) have opined that these forced waiver are unconstitutional.
The bureaucrats made blatantly false arguments during the campaign and now are punishing voters with their forced waiver scheme.  We do not pay them to make our lives miserable, yet they persist.
Local elected officials are the bureaucrats supervisors and unless they "call off the dogs" these anointed (strike that -- elected) officials will be held accountable by the very voters who demand prompt, courteous service from our government.
"Lose the attitude and get back to work," could be a good campaign slogan.
Snap at you later,
Big Rattler

Thursday, February 08, 2007


Zoning change clears way for KAOL primary
New district office will also be built next to charter high school on Burbank

Thursday, February 08, 2007

KINGMAN - Plans for construction of a new district office and primary school next to its high school on Burbank Street can now proceed at the Kingman Academy of Learning.

The school district got the 1.26-acre parcel of property rezoned from R-4 (multiple-family residential) to C-2 (community commercial) during Monday night's meeting of the Kingman City Council.

Gary Jeppson, director of the city's development services department, made a presentation seeking the rezoning to the Council.

The site originally was given the R-4 designation more than 10 years ago to permit construction of an apartment complex that never came to fruition. The proposed school could be built on the property, but its designation had to be changed to C-2 to allow for the district office, Jeppson said. "We followed up on their application for rezoning when they submitted it," he said.

School district officials had to sign a waiver to Proposition 207 to get the rezone approved.

"We probably worked on this for three months," said Susan Chan, KAOL district administrator.

"Prop. 207 deals with property owners requesting a rezone. If in subsequent years you feel it has lowered the value of the property, it gives you the right to sue the entity granting the rezone."

By signing the waiver, KAOL has agreed not to sue the city if property values decline on the site in the future.

Modular Technology of Phoenix is the project contractor for the new district office and primary school. It is producing modular units to be delivered to and assembled at the site.

"We've given them a June 30 deadline for building completion," Chan said. "The school must go in first. We have some flexibility on when the district office is ready."

The district currently leases space for its primary school (pre-school through grade 2) at First Southern Baptist Church on Hualapai Mountain Road.

Electrical, plumbing and concrete work still must be done and now can proceed before final assembly of the modular units, Chan said.

The primary school will border the back fence of KAOL Intermediate School on Harrison Street. Plans call for it to have 24,000 square feet of space with 17 classrooms, a large multi-purpose room, office complex and two banks of bathrooms.

The district office will be located beside KAOL High School on Burbank Street. It will encompass 6,000 square feet of space, which is double the size of the current office on Beverly Avenue.

Chan said she expects both new facilities to open in August when the 2007-2008 school year begins.


Thursday, February 8, 2007

Cities bypass property rights

[East Valley/ Scottsdale Tribune]
Cities bypass property rights
By Art Martori
When Bill Sandry went to Apache Junction City Hall to get a development permit, he was told he could only get one if he agreed to waive one of Arizona's newest property rights. The city demanded that Sandry give up his right to sue the city if any land-use decision...

Click here to read the rest of the article.

The Empire Strikes Back

From the Goldwater Institute

The Empire Strikes Back
Cities Demand People Sign Away Prop 207 Rights.

by Clint Bolick February 6, 2007

Just two months ago, Arizona voters sent a resounding message to their government: hands off our property. Passing Proposition 207 by a 65 percent majority, despite doomsday scenarios from elected officials and bureaucrats, the voters put the clamps on regulations that exceed normal governmental purposes and diminish the value of private property.

Given that public officials are sworn to uphold the law, one might expect them to figure out how to comply with the new limits. But, of course, most of the ingenuity is being poured into how to evade them.

The East Valley Tribune reported that slews of cities have come up with a nifty way to nullify Proposition 207: whenever property owners ask permission to develop their property, they force them to sign a waiver of their Proposition 207 rights. These waivers are blatantly unconstitutional. The U.S. Supreme Court has made it clear that government can't condition a benefit on the surrender of rights.

Kleptomania is too widely entrenched for local governments to abandon it easily. Too bad we'll all have to foot the bill if someone has to sue the cities to establish that the law means what it says.

Key Links
City of Peoria
Denial of Permit due to refusal to waive Prop 207 rights
East Valley Tribune
Cities bypass property rights
League of Arizona Cities and Towns
Prop 207 Workshop
Ann Seiden, Communications and Hispanic Outreach Coordinator, Goldwater Institute, (602) 462-5000 x 223,

Forced Waiver -- Phoenix

Click on the waiver to get larger view.

Local Bureaucrats "Force Waivers" on owners



January 26, 2007

Contact:  Lori Klein, 602-324-3528    




Supporters ask: "How can obtaining an electrical permit diminish property values?"


PHOENIX— Hope for Arizona leaders are fielding numerous calls from Arizona property owners who are now being forced by local officials to sign away their Prop. 207 property rights for such standard requirements as obtaining an electrical permit.


Lori Klein, executive director of the property rights group, likened the local officials' actions as appearing childish, "because they didn't get their way -- so here is their tantrum -- to make property owners lives more difficult."


Klein, along with former State Treasurer Carol Springer, were recently on a panel in Tucson discussing Prop. 207 which overwhelming passed last November by a 65% - 35% margin.


At that meeting the Prop. 207 so-called government "waivers" were discussed.  These forced "waivers" were presented as necessary when an owner requests a formal zoning change.   According to one local official on the panel, the "waiver" is designed to prevent the owner who requests the formal zoning change from later filing a Prop. 207 claim citing diminution of property value.


"We are doing our legal research regarding these forced government 'waivers.'  At face value it appears that a court would not allow a Prop. 207 claim for action requested by the property owner," said Klein.   "So far, these 'waivers' appear to be non-consequential, legally frivolous and a waste of taxpayer time and dollars; and, are simply another burden to citizens who are exercising their private property rights."


Prop. 207 supporter, State Sen. Chuck Gray said, "There might be a rare scenario where the local officials may need to ask for a 'waiver' from a complicated planned development re-zoning project, but being forced to sign away property rights for an electrical or plumbing permit is just nonsensical.   It smacks of officials trying to punish voters for doing something they didn't like."


Supporters ask the logical question: "How can obtaining an electrical permit diminish property values?"


Supporters asked local government officials to "get over it and move on" and get back to work doing the peoples' business in the most cost-effective and consumer friendly manner they can.   "That is what they have been hired by the people to do," said Klein.


To learn more about Proposition 207, visit www.hopeforarizona.com or call Lori Klein at 602-324-3528.


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