Clint Bolick

Property rights an endangered species

Posted on October 20, 2006 | Type: In the News | Author: Clint Bolick
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Arizona governments have declared war on your property rights. Arizonans can fight back by voting yes for Proposition 207, the Private Property Rights Protection Act.

Arizonans know the story of Randy Bailey. The city of Mesa tried to take his family-owned brake shop and give it (along with a $2 million subsidy) to a developer to relocate a hardware store.

The courts struck down the city's action, holding that under the Arizona Constitution, the power of eminent domain must be for a genuinely public use.

Unfortunately, a big loophole remains: local governments still can take property that is blighted. Under any normal definition of blight, that would be fine; after all, government should be able to remove property that is dilapidated or unsafe.

Trouble is, the state's definition of blight is far broader, encompassing any property that is not put to its best and highest use, as the government perceives it. In other words, if your property could generate more tax revenue if a developer constructed a shopping mall on it -- and whose property wouldn't? -- it can be considered blighted and the government can take it.

Making matters worse, under current law a government can classify your property as blighted if a property a mile away is blighted, by decreeing that an entire area is blighted even if most of the properties are just fine. The city of Scottsdale tried to do that when it declared that the lovely Fifth Avenue shopping district was blighted, in an effort to use eminent domain to clear the area so a developer could build a new resort hotel.

Prop. 207 would curb these abuses by limiting eminent domain to removing property that is actually blighted.

Cities are screaming loudly about another provision of Prop. 207. It would require compensation to property owners for a limited number of "regulatory takings," which occur when government changes the rules and takes part of the value of your property for an outcome it deems desirable -- one that is unrelated to public health, safety, morals, traffic, water, or public nuisance.

A typical situation is where the government wants to preserve open land owned by a person who has the right to build on it. The question is who should bear the cost: the community as a whole or the individual property owner? In a free society, to ask the question is to answer it.

When Kent and Judith Wonders sought to develop property in accord with zoning rules, Pima County wanted them to set aside 45 acres for native plant preservation, a laudable goal. Ordinarily, if the county wanted to preserve open space, it would buy it. But it's much cheaper to change the rules to force an individual property owner to bear the entire cost of the desired end. The Arizona courts upheld the regulation, holding that government has to pay only if it has destroyed every penny of the property's value.

Prop. 207 would leave intact the government's power to regulate. But in the narrow range of instances where its regulations fall outside the normal powers of government (health, safety, traffic, water, etc.) and it reduces the value of a person's property, if the owner files a claim the government either must waive the new rules and restore the owner's previous property rights or pay appropriate compensation.

The burden of the invasion of property rights falls hardest on ordinary Americans -- those who don't have the resources to fight in court or lobby politicians. Arizonans shouldn't have to do those things to protect their property rights. Prop. 207 restores the proper balance, preserving government power to do what is right but restraining it when it strays beyond the boundaries of fairness.

Clint Bolick is a senior fellow at the Goldwater Institute.

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