Clint Bolick

Sneaky AZ cities dodge new property-rights law

Posted on February 08, 2007 | Type: Op-Ed | Author: Clint Bolick
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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

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