Out of Control

Arizonans are now finding out that the measure severely limits cities' power to change land use, a crucial tool that helped create signature Valley neighborhoods such as Mill Avenue in Tempe, the Encanto historic district in downtown Phoenix and the Esplanade at 24th Street and Camelback Road.

Again, complete rubbish. As I note above. Nothing in Prop 207 prevents government regulation of land use, it just gives property owners a remedy that did not previously exist. Any intelligent person can read the text of Prop 207 for themselves, and they will find nothing that limits the ability of governments to zone and regulate land use.

Similar proposed projects across Arizona face years of delay because cities must get property owners to sign legal waivers to avoid lawsuits.

Supporters say the law is doing what it was designed to do: It levels the playing field so cities can't change land use without getting the OK from individual property owners.

All of this is false. The claim that "cities must" get owners to sign waivers, and that landowners "must" agree to land use changes is patently false. Risk-averse cities, at the prompting of the League of Arizona Cities and Towns, have chosen to require any landowners requesting rezoning of their properties to sign waivers indemnifying the city from future Prop 207 claims. Put simply, the cities don't want to agree to rezonings and then have the landowner turn around and sue them for making those changes. The reporter herself admits this later in the piece: "Although Proposition 207 applies only to decisions that hurt land values, gun-shy cities, including Phoenix, are asking for waivers for many zoning and other changes."

Critics say the law makes it extremely difficult to create historic districts and other special areas within cities because virtually every affected landowner - even if hundreds of properties are involved - must agree to the change.

More spin and shoddy reporting. Prop 207 does not require that every landowner has to agree to changes of this sort. Any cities that may be requiring 100% of affected property owners to sign waivers are trying to insulate themselves from all risk of future litigation. In other words, governments are choosing to create these requirements; Prop 207 includes no such provisions.

And at a more fundamental level, it seems to me that Prop 207 is creating the right incentive here. Aren't we supposed to protect the rights of minorities against the tyranny of the majority? Isn't it a good thing to create a very high bar to protect citizens in those situations where busybodies want to use the force of government as a means to impose their preferences on others?

The last thing I want to highlight in this article is here:

Those bureaucratic hoops also may hurt the Phoenix effort to bring shade, sidewalk cafes and miniparks downtown. The Urban Form project, which has cost $900,000 so far, would affect 2,000 properties.

That could mean getting 2,000 waivers, said Dean Brennan, Phoenix principal planner.

The waivers could delay the effort for years or force the city to adopt the plan in small patches. If the city doesn't have to get waivers, the Urban Form changes could be put into place as early as the end of the year, Brennan said.

Big planning projects work best if all the owners have to play by the same rules, Brennan said.

Under Proposition 207, owners can refuse to rezone, creating "holes" that undermine the effort to keep or create a cohesive look for a special neighborhood, Brennan said.

Boo hoo, whine whine. While I love sidewalk cafes and urban parks as much as the next urbanist, seems to me that in the grand scheme of things, protecting private property rights might just outweigh a few inconveniences and delays suffered on the part urban planners. And, once again (I'm sounding like a broken record), landowners can't "refuse to rezone" under Prop 207. They don't gain any new rights to stop municipal planning and land use regulation under Prop 207--they just get the right to seek compensation or exemption if new rules lower their properties' value. To claim otherwise is just disingenuous spin on the part of Prop 207 opponents.

Here's the real deal--aggrieved landowners now have the right under Prop 207 to file a claim that a new regulation lowered their property value. For some sense of perspective, it's important to note that: (1) not all property owners will feel compelled to challenge regulations, (2) a landowner would actually have to demonstrate and quantify a loss of value to have a claim with any chance of being upheld; and (3) upzonings of the type promoted by supporters of urban densification (i.e., many urban planning professionals) probably would be difficult to challenge, as they would more likely increase the development potential, and hence value, of the land.

Anyway, if the government entity disagrees with the specifics of a landowner's Prop 207 claim, or feels it can make a strong case that the regulation was adopted in the interest of public health and safety (or any of the other types of regulation exempt from Prop 207's provisions), then the courts will have to settle the matter. Nothing guarantees that a landowner filing a Prop 207 claim will actually win it. Prop 207 just offers them the potential of a remedy that previously did not exist, given that federal and state courts have historically failed miserably to protect property owners against regulatory takings.

More to come from Reason on Prop 207, starting with a feature I wrote for our upcoming Annual Privatization Report 2007, set for release next week.

(Hat tip: Tim Sandefur, on the excellent PLF on Eminent Domain blog)