Eminent domain proposition opposed by cities and towns
by Barry Cohen

Local governments throughout Arizona might have to raise taxes and cut basic services if Proposition 207–a measure designed to protect private property rights– gets voter approval this fall, according to the measure’s opponents.

Known as the “Private Property Rights Protection Act,” Prop. 207 would restrict cities’ and towns’ use of eminent domain.

It would also require governments to compensate property owners when a zoning or other action reduces their property values.

It’s that second part of the measure which could have the most onerous consequences for municipalities and their residents, said Ken Strobeck, executive director of the League of Arizona Cities & Towns.

“A property owner could file a claim without justification just because he thinks a zoning change has affected the value of his property,” Strobeck said. “The proposition takes us away from the mind‑set of what’s ‘best for the community’ to ‘every man for himself.’”

The group leading the fight to get Prop. 207 approved says the measure is needed to protect the American Dream.

“We want to make it clear that eminent domain should be used only for public good and that a city can’t go into collusion with a private developer to take away an individual’s private property just to enhance tax rolls,” said Lori Klein, executive director of HomeOwners Protection Effort for Arizona.

Klein said the ability of Arizona cities and towns to do planning that best serves their residents would not be taken away if Prop. 207 passes. What it does provide, she added, is a court remedy for an individual whose property has been affected by a local government’s zoning change.

Klein acknowledged that to date most of the funding for Prop. 207 has come from out‑of‑state. More specifically, almost all of the money behind the proposition has thus far come from  Americans for Limited Government, an Illinois‑based political organization whose Web site says it works “with grassroots movements across the nation to promote freedom, limited government, and the principles of the U.S. Constitution.”

The chairman of the group is Howard Rich, “a wealthy New York real estate developer interested in libertarian issues,” according to a recent article posted on the Journal Star Newspaper’s  Web site.

Opponents of Prop. 207 say Arizona voters might want to look northwest to see the potential impact a similar eminent domain measure, passed in 2004, has had on Oregon.

The New York Times reported on July 25, 2006, that because of Oregon’s private property law, the owner of a “doughnut hole” of private land inside a volcanic monument claims the government owes him $203 million in compensation. The reason? Because the property owner wants to build a pumice mine and power plant in the center of one of the nation’s protected natural wonders, according to the Times article.

A group called Protecting Arizona Taxpayers Coalition is leading the opposition to Prop. 207. On its Web site, the organization says the title of the proposition is deceptive, calling it a “bait‑and‑switch.”

Coalition director Paul Barnes said that if the measure passes, it would eliminate any reasonable planning by cities and towns.

“Every city has a general plan and must update it from time to time,” said Barnes, a retired businessman and 30‑year resident of the Arcadia neighborhood in Phoenix. “If this measure passes, it would make it risky for cities to update their plans without the potential for lawsuits.”

Barnes said that if Prop. 207 passes, cities that lose lawsuits filed over zoning changes will have to pay claims out of operating funds, draining resources used for police, fire protection and parks. He added that local property tax increases would also be an option. “Either that or they’ll have to waive their zoning requirements, and then we’ll have a total laissez faire, non‑regulatory environment.”

Cave Creek Town Manager Usama Abujbarah said the town opposes any measure that would take legal authority away from local government.

Jonathan Pearson, town administrator for Carefree, pointed out the town has never used eminent domain to take private property, even for public purposes. But, he stated, “If passed, Proposition 207 would disenfranchise and take away the public’s say about what’s best for their towns.” According to Pearson, local governments have been responsible in their use of eminent domain.

Strobeck, the League of Arizona Cities & Towns executive director, said there is no need for a new law–that the current system works. He pointed (points) out the state’s courts have ruled in favor of property owners in two high‑profile eminent domain cases.

In one case, the City of Mesa planned to take a brake shop through eminent domain, raze it, and transfer the land to a larger privately owned business so the latter could move to the more desirable location, according to an article on the Web site for the Institute for Justice, a nonprofit civil liberties law firm.

The institute took up the case and in October 2001 filed an answer to Mesa’s eminent domain complaint and a counterclaim on behalf of the shop’s owner, Randy Bailey, in Maricopa County Superior Court. The trial court upheld the use of eminent domain, but enjoined the city’s taking of Bailey’s property pending appeal.

On October 1, 2003, the Arizona Court of Appeals unanimously struck down Mesa’s use of eminent domain in the Bailey case, the article stated.

The Arizona Chamber of Commerce in July came out in support of Prop. 207. 

The measure “is Arizona’s opportunity to remove any ambiguity and loopholes in Arizona law that would allow for unfair and unjust private property takings through the otherwise legitimate power of eminent domain,” the chamber stated in a news release.

Reach the reporter at barry@thedesertadvocate.com.