Possible voter confusion and a surrounding atmosphere of well-funded and heated campaigns have Capitol insiders differing on the likely outcome of Prop. 207, a controversial property rights initiative.
“This is an issue that’s very hard to explain over the telephone,” said Valley pollster Bruce Merrill, of Prop. 207, which would strengthen laws against eminent domain and provide compensation to owners of property devalued by land-use restrictions and declarations.
Findings from Mr. Merrill’s most recent polling with KAET Channel 8 and Arizona State University indicated 20 percent of those surveyed were undecided on Prop. 207 — the highest number of undecideds among seven other ballot initiatives he sought to gauge voter sentiment.
The theoretical notion that “eminent domain might not be important until it happens to you” has made Prop. 207 polling difficult, said Mr. Merrill, who predicts the initiative will pass, judging by 53 percent approval ratings from the survey conducted Oct. 19-22. Twenty-nine percent of respondents were opposed to the measure.
But like many, he believes voters’ decisions could be complicated by the addition of the initiative’s ballot language that would require compensation for regulatory takings, common land-use restrictions that adversely affect property values.
People also may approve of selected use of eminent domain for projects such as schools and roadways, but frown on its use to increase economic development, he said.
“It’s a measure of what people think the government should be able to do,” he said.
Phoenix attorney and lobbyist Lee Miller believes Prop. 207 by the Homeowners Protection Effort will fail. He cites the fact that the initiative is a single measure on a four-page ballot, and says the measure is forced to fight for attention with other headline grabbing races.
“They’re buried,” he said of the supporters of the initiative. “They have to compete with R.J. Reynolds’ (tobacco giant against an initiative to ban indoor smoking in public areas) and Jim Pederson’s (Democratic Senate candidate) and Jon Kyl’s (Arizona senator) money.”
Despite the “big food fights” over smoking, gay marriage, and sales of state trust lands at Arizona’s ballot initiative table, Prop. 207 will pass by approximately 10 percentage points, said Doug Cole, a Valley consultant with HighGround consulting and polling.
The proposition is blessed with a favorable ballot description and Arizona voters are also likely to be familiar with the issue due to high-profile coverage of eminent domain attempts in Mesa and Tempe, said Mr. Cole, who lobbied against bills relating to eminent domain and regulatory takings last session.
Like Mr. Miller, he is concerned with the long ballot and expects an under-vote from Arizonans he believes to be fatigued from constant political messages. In a single day this week, said Mr. Cole, seven mailers on candidates and initiatives arrived at his home.
Nevertheless, opponents of the initiative that have been brought together by Prop. 207’s regulatory-taking language, an unlikely coalition of military, environmental, law enforcement, historical and neighborhood planning groups, will be hard pressed to defeat the measure, he said.
Critics of the initiative attack the measure on a number of fronts, ranging from what they say are its out-of-state origins, broad language, and intractability due to Arizona’s 1998 passing of Prop. 105, which requires approval of three-quarters of the Legislature to amend citizen ballot initiatives.
District 12 Republican Rep. John Nelson, chairman of House Committee of Counties, Municipalities and Military Affairs, has broken ranks with dozens of party members supportive of the measure.
He says Arizona’s Constitution differs greatly enough from Connecticut, the origin of an eminent domain case that led to the 2005 U.S. Supreme Court decision in Kelo v. City of New Haven, which affirmed cities’ right to seize private properties and transfer control to private entities to boost local economies and tax revenues.
“They’re acting like we have a Kelo problem and we don’t,” said Mr. Nelson.
Cities will be “held hostage” between land developers, which he says will be able to sue if regulations prevent them from obtaining maximum returns on investments, and citizens newly empowered to file litigation — with public money — in response to regulations that can diminish property values.
As a result, public funds would have to be appropriated to handle a massive amount of lawsuits and settlements, said Mr. Nelson.
Proponent: ‘Iron-clad’ laws needed
But proponents like Lori Klein, a spokeswoman for the Homeowners Protection Effort, say specific protections against uses of eminent domain to satisfy government thirst for greater tax revenues must be implemented.
Home or business owners also do not have to be completely deprived of their property to be victims of government regulation. Declarations of blight for areas are too common and damaging to citizens pouring money into property upgrades and repairs, she said.
“Once they blight you the next step is condemnation,” she said.
The proposed initiative also specifically states that eminent domain can still be used for public projects and safety. And if a citizen’s private land is devalued by the creation of a public necessity, it should make sense the damages become public as well, she said.
“If it’s for a public use, why not have the public pay for it≠” Ms. Klein asks.
Ms. Klein eagerly attacks the stances of the initiative’s opponents — and the opponents themselves. Costly lawsuits would result only if government entities abuse their authority, she says. The measure’s critics tend to be environmentalists, unions, and other groups “crying wolf” because they fear government loss of regulatory power in areas that correspond to their particular agendas.
“You have to have iron-clad laws to protect property rights,” she said, adding that the measure has received mainstream support as evidenced by an endorsement and a $100,000 contribution from the Arizona Chamber of Commerce and Industry.
Another strong supporter of the initiative, Ben Barr of the Goldwater Institute, a conservative think tank, said the proposition will likely pass because Arizonans realize that the “pendulum has swung too far” in favor of government when it comes to land-use issues.
Jay Dushoff, a property condemnation lawyer since 1959, says high profile cases of condemnation for eminent domain like the city of Mesa’s attempt to seize a brake shop owned by Randy Bailey are few and far between.
In fact, Mr. Dushoff, who represents property owners in such cases, estimates they represent one-hundredth of 1 percent of condemnation cases in the state. And people tend to forget that Mr. Bailey prevailed in his case against Mesa — and the court established a criterion of 19 factors judges must consider before condemning properties, he said.
But he agrees that some laws concerning condemnation need to be addressed, particularly those affecting damages to business enterprises, he said.
If the measure were to pass, he expects a considerable amount of time will be needed to clear resulting legal ambiguities, leaving his clients in the meantime with longer and more expensive court proceedings.
He likens the initiative’s solutions to overkill and thinks the measure would be better addressed by the Legislature to weed out mistakes and provide clarifications.
But that solution is unlikely, said Ms. Klein, noting that a handful of similar bills were shot down in the Legislature, and the veto stamp was applied to the single eminent domain bill to reach the governor’s desk.
Arizona joins 11 other states that will address eminent domain powers on the 2006 ballot, with half of those resulting from citizen initiative drives.
According to the National Conference of Legislatures, 46 states have at least considered legislation to curtail eminent domain authority and 30 have passed measures since the Kelo decision.
The Arizona Homeowners Protection Effort has several high-profile members, including its chair Carol Springer, a Yavapai County supervisor and former state treasurer, and John R. Norton, a former deputy secretary of agriculture under President Reagan.
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.