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
http://www.azbiz.com/articles/2007/02/16/news/news09.txt


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."

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