While hailed by some as a solution to government overreaching its authority, opponents of Prop. 207, also known as the Private Property Protection Act, are billing the initiative as a grave threat to responsible city planning and the budgets of Arizona’s cities and towns.
Paul Barnes, chairman of Protecting Arizona Taxpayers Coalition, which opposes the measure, said citizens must be careful to fully understand the initiative because eminent domain — the act of government taking private property for public use — is not the sole issue at stake.
“Eminent domain can be painted as a little old lady thrown out on the street and her property given to greedy developers,” he said. “But people need to understand the consequences.”
Critics place more emphasis on the Proposition’s language affecting what’s commonly referred to as “regulatory takings.” If passed, the initiative would entitle citizens to compensation resulting from most government actions that reduce property values.
The fine print could paralyze reasonable control and development and would set the stage for a slew of revenue draining lawsuits from citizens whose lands are devalued by routine zoning decisions, said Mr. Barnes.
But backers of the initiative presented by the Arizona Home Owner Protection Effort argue it is a necessary protection from governments emboldened by a 2005 U.S. Supreme Court decision in Kelo v. City of New London.
The decision affirmed cities’ right to use eminent domain laws to seize and transfer Properties to private entities to boost tax revenues and job creation. Since then dozens of states have either enacted or are seeking to enact additional private property rights measures.
According to National Conference of State Legislatures, 46 states have at least considered legislation to curtail eminent domain powers and 30 have been passed since the Kelo decision.
Twelve states, including Arizona, will have property rights issues on the 2006 ballot. Half of those measures resulted from citizen initiative drives and the other half from legislative referendums, according to Stateline.org, an independent news organization funded by Pew Research Center.
The initiative is a step in the right direction to dissuade governments that have become too cozy with the idea of taking what isn’t rightfully theirs, said Clint Bolick, a senior fellow at the Goldwater Institute.
“It curtails the Robin Hood in reverse that was rampant in recent years,” he said, referring to cities’ use of eminent domain in cases such as the attempt to seize a brake shop owned by Mesa businessman Randy Bailey.
The initiative is not irresponsible or unfair to government, he said, adding that it does not prevent use of using eminent domain to clear a path for roads or to build schools, hospitals or other “legitimate” public projects.
However, he does regret that it “doesn’t go far enough,” because it would not protect business owners from losses incurred from “excessive regulations” such as smoking bans or the recent attempt to forbid lap dancing by strippers in Scottsdale.
League of Cities and Towns director: Governments are‘extraordinarily cautious’
Ken Strobeck, the executive director of the League of Arizona Cities and Towns, a strong opponent of the initiative, rebuts allegations that eminent domain is thoughtlessly abused, stating that local governments are “extraordinarily cautious” when using their powers over private property.
And he says the protections in Arizona are stronger than those in Connecticut, where the Supreme Court case originated, and added that Mr. Bailey successfully defended himself and his business under current laws.
“The Proponents have not been able to show us what problems we’re solving in Arizona,” he said. “This sort of seems to be a solution to which we don’t have a problem.”
Like Mr. Barnes, Mr. Strobeck blasts the initiative as the product of radical out-of-state libertarians, particularly wealthy New York real estate investor Howard Rich, who have spent almost $1 million to help qualify the measure for the ballot.
Records kept by the Secretary of State’s Office show the opponents of Prop. 207 have collected a total of $41,650 from environmental groups, including the Sierra Club, and individual donors.
Campaign finance records also indicate the Home Owners Protection Effort has $133,800 on hand and has already spent more than $1 million promoting the initiative.
The campaign against Prop. 207 is off to a late start and facing hardships such as a loaded ballot and a subject — eminent domain — that evokes negative reactions, said Mr. Strobeck.
“The challenge is going to be to get people to understand that this is about more than eminent domain,” he said. “That’s the tip of the iceberg. This really is a measure that will fundamentally change how neighborhoods can work and how development can work. It affects small business as well as big developers and large business.”
The list of Prop. 207’s enemies does not seem to surprise or impress Mr. Bolick.
“It’s a parade of special interests on the other side,” he said. “They want to use and regulate other people’s property without paying for it.”
If passed, it is likely that Prop. 207 will be the target of a court challenge. The League of Arizona Cities and Towns tried unsuccessfully to have the Proposition removed from the 2006 ballot on the grounds that it did not include a defined funding source to cover the expenses it would create.
Maricopa County Superior Court Judge Paul McMurdie agreed that the League could be correct, but stated that voters will have a chance to vote on it regardless, out of respect for the citizen initiative process.
An appeal of that decision was also rejected by the Arizona Supreme Court on Aug. 31.
Ballot Language
Prop. 207 — Eminent Domain
Requires that if a government takes private property through eminent domain it may do so only for a “public use,” which is defined in the proposition as use by the public, public agencies or for utilities; to eliminate a threat to public health or safety; or to acquire abandoned property. Prop. 207 specifically excludes from the definition of “public use” any benefits of economic development. Additionally, a property owner is entitled to just compensation if the value of the person’s property is reduced by the enactment of a zoning change or other land use law. Proposed by initiative petitions circulated by Arizona Home Owner Protection Effort.