Prop. 207 right for property owners

Posted on October 16, 2006 | Type: Op-Ed | Author: Thomas C. Patterson
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Proposition 207, the initiative to protect property rights, is a great example of citizens using the initiative process exactly the way it was intended. This is the legitimate response of citizens attempting to protect themselves from local governments aggressively encroaching on their property rights, when other attempts to obtain relief have failed.

Not long ago, Americans didn't worry too much about property rights. These fundamental rights are expressly protected in the Constitution. But today, governments at all levels ignore the traditional definitions of "public use" and "just compensation" that were required for eminent domain proceedings. Citizens are faced with losing their property to a user who would produce more taxes. Others have seen the use and value of their property reduced on the whim of government.


Last year's Kelo decision by the Supreme Court of the United States left no doubt that our property rights were not as secure as most had believed. Homeowners in New London, Conn., were told they had no constitutional protections against their city taking their well-maintained homes and giving them to a developer who could generate higher tax revenues. "More money" suddenly qualified as a public use. Millions of Americans were astounded. As then Justice Sandra Day O'Connor put it, "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing ... any home with a shopping mall, or any farm with a factory."

Kelo was a wake-up call. More than 40 state legislatures introduced measures this year to shore up property rights protections. In Arizona, House Bill 2675 was passed by the Legislature to ensure that property could be taken by government only for legitimate public uses. Unfortunately, Gov. Janet Napolitano vetoed the bill. The property takers had won again, forcing citizens to take matters into their own hands.

Prop. 207 not only protects against financially motivated eminent domain abuse, it also offers important protections against "regulatory takings." A regulatory taking occurs when government restricts the use of private property so that the value is reduced. The victim of a regulatory taking still owns title to the property, but it may not be worth much.

Regulatory takings can be as devastating as eminent domain abuse. A Pima County property owner named Wonders was required by the county to implement a plan for native plant preservation. Forty-five acres were set aside for open space, rendering that portion of his property useless for other purposes.

Nevertheless, the court ruled this was not a taking. Wonders' land had for all practical purposes been seized by the county, yet he was not entitled to compensation.

The Tribune, which normally shows a decent respect for property rights, recently joined the pro-takings crowd in asserting that Prop. 207 goes too far when it prohibits regulatory takings. The proposition would "disrupt all efforts at reasonable zoning and land use planning," the editorial board claimed, pointing out that $5 billion in claims have been filed in Oregon which recently passed a similar measure.

Of course, if $5 billion in claims have been filed, that could be an indication that there has been a lot of regulatory taking going on in Oregon. It might even help explain why the measure passed in a state regarded as politically on the left.


But Arizonans need not fear that normal land use planning will screech to a halt. Unlike the Oregon law, this proposal would grandfather in all existing laws and regulations. Moreover, cities would not have to pay for the costs of regulation in cases relating to pollution, building codes, fire danger and similar matters. Governments could still do normal planning and protect the health and safety of citizens.

Officials often contend that their governments can't afford the cost of compensation for regulatory takings. But if government makes a nonessential decision that diminishes property value, that cost must be borne somehow. If the cost is not worth the benefit to government, why should the luckless property holder be forced to sacrifice?

Property rights advocates have been rebuffed by the Supreme Court. The governor has blocked their attempt to work through the system. Now they're being criticized because Prop. 207, protected by the Voter Protection Act if it passes, would be permanent.

But secure, reasonable property rights are what Arizonans need and deserve. Prop 207 would simply assure that the spirit of the Constitution is honored.

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