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Prop. 207: Provisions are unnecessary

Proposition 207 is a Trojan Horse designed to fool Arizona’s voters into passing a dangerous measure that will undo zoning laws, freeze water management statutes and stop all manner of normal and beneficial government regulation under the guise of “protecting homeowners”. Despite its title and deceptive ads, the real impact of this measure has nothing to do with seizing people’s property.
The U.S. Supreme Court, in a decision called Kelo v. New London, allowed the use of the power of eminent domain by a town in Connecticut to take a house away from its owner for the purpose of generating economic benefit to the town. In its wake, an eastern real estate developer named Howie Rich has funded initiatives around the U.S. purporting to limit such actions. But Arizona already follows Justice O’Connor’s dissent in Kelo: we do not allow eminent domain for economic development, only to cure slum conditions. Arizona Courts established very restrictive rules for eminent domain in Arizona in Bailey v. Myers. Mr. Bailey won, and Mesa was not allowed to take his house. The provisions of 207 dealing with eminent domain are unnecessary and largely meaningless.
Buried deep in 207 is the real goal — to require payments to property owners for the effects of land use regulations. This proposal would radically alter rules in effect since zoning was invented. In 1922, another great Supreme Court Justice, Oliver Wendell Holmes, observed: “Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Holmes was restating the essence of the social compact. In an orderly society, each individual must surrender some measure of rights — he is burdened by those limits, but benefited by limitations on others. It all works out, Holmes said, because an average reciprocity of advantage exists in the incidence of burdens and benefits. I don’t get to do whatever I want with my land, but neither do you. We’re all in this together.
So sweeping is this change in the law that its full effects are nearly impossible to catalogue. If you think cities should use zoning powers to protect military airbases, limit density, control “big box” retail or make development conform to a general plan, then you should vote NO on 207, for it will undermine all those efforts. Should we try to limit development on hillsides, in washes or other sensitive areas? Most Arizonans think so, but if 207 passes, those efforts will end. Any time a local jurisdiction seeks to increase a setback regulation, change a height limitation or adjust the density allowed on a vacant parcel, compensation must be paid.
The proposition also applies to state laws. It is impossible to anticipate all the potential new measures that might, in the normal course of governing, be considered by the state that would impact property values. One example of a potential future need to regulate is to deal with the thousands of proposed “wildcat subdivision” lots proposed for rural areas without any firm water supply. Indeed, had 207 been in effect, the legendary Groundwater Management Act could never have been passed.
Arizona isn’t Oregon, a state where growth management has often run roughshod over private property owners. Nor is it Connecticut, where the town of New London condemned a perfectly decent house to make way for a factory. Arizona’s Legislature, city councils and courts have done a good job of balancing private property rights with the need to protect the environment and regulate development. Proposition 207 is an effort by outsiders to undo that balance. Arizonans shouldn’t be fooled. Arizonans should vote NO.
Grady Gammage Jr. is a Phoenix attorney.

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