PROP 207
Jo Clute
josepi at doitnow.com
Sun Sep 10 13:25:02 PDT 2006
Michelle, I found this piece on prop 207 and I am under the impression that this is the actual text to the proposed amendment. Is this accurate? Most of the info I read on it, are interpretations or opinions of the outcomes but RARELY does anyone refer back to the actual-ver batum language used in the amendment. that is where I get confused.
I am a fanatic about property rights-more especially my very own :-). A takings appeal is a very important right if you feel the government is "taking" value form your property"
If you look at the referenced situations below, I remember reading about these situations in the newspaper and thinking wow, the gov sure is expanding their definition of "public use" and now condos are public use?
what text in this amendment specifically is bad and what is the basis, in your opinion :-)
(and I'll call ya later, too:-)
fritz? what is your call on this?
wayne?
katie?
AN INITIATIVE MEASURE
AMENDING TITLE 12, CHAPTER 8, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 2.1;
RELATING TO THE PRIVATE PROPERTY RIGHTS PROTECTION ACT.
Be it enacted by the People of the State of Arizona:
Section 1. Short title
This act may be cited as the "Private Property Rights Protection Act".
Sec. 2. Findings and declarations
A. The people of Arizona find and declare:
1. Article 2, section 17 of our State Constitution declares in no uncertain terms that private property shall
not be taken for private use.
2. Our Constitution further provides that no person shall be deprived of property without due process of
law.
3. Finally, our Constitution does not permit property to be taken or damaged without just compensation
having first been made.
4. Notwithstanding these clear constitutional rights, the state and municipal governments of Arizona
consistently encroach on the rights of private citizens to own and use their property, requiring the people of this
State to seek redress in our state and federal courts which have not always adequately protected private property
rights as demanded by the State and Federal Constitutions. For example:
(a) A recent United States Supreme Court ruling, Kelo v. City of New London, allowed a city to exercise
its power of eminent domain to take a citizen's home for the purpose of transferring control of the land to a private
commercial developer.
(b) The City of Mesa used eminent domain to acquire and bulldoze homes for a redevelopment project that
included a hotel and water park. After the developer's financing fell through the project was abandoned and the
property left vacant.
(c) The City of Mesa filed condemnation actions against Randy Bailey, to take his family-owned brake
shop, and Patrick Dennis, to take his auto-body shop, so that local business owners could relocate and expand a
hardware store and an appliance store.
(d) The City of Tempe instituted an eminent domain action to condemn the home of Kenneth and Mary
Ann Pillow in order to transfer their property to a private developer who planned to build upscale townhomes.
(e) The City of Chandler filed a condemnation action against a fast food restaurant in order to replace the
fast-food restaurant with upscale dining and retail uses.
(f) In the wake of the Kelo ruling, the City of Tempe recently sought to condemn property in an industrial
park in order to make way for an enormous retail shopping mall.
(g) The City of Tempe told the owners of an Apache Boulevard bowling alley that the City intended to
condemn their property and specifically instructed them not to make further improvements to the land. Heeding
Tempe's advice, the owners made no further improvements and ultimately lost bowling league contracts and went
out of business. The Arizona Court of Appeals refused the owners' request for just compensation.
(h) Courts have also allowed state and local governments to impose significant prohibitions and restrictions
on the use of private property without compensating the owner for the economic loss of value to that property.
5. For home owners in designated slum or blighted areas, the compensation received when a primary
residence is seized is not truly just as required by our state constitution.
6. Furthermore, even when property is taken for a valid public use, the judicial processes available to
property owners to obtain just compensation are burdensome, costly and unfair.
B. Having made the above findings, the people of Arizona declare that all property rights are fundamental
rights and that all people have inalienable rights including the right to acquire, possess, control and protect property.
Therefore the citizens of the State of Arizona hereby adopt the Private Property Rights Protection Act to ensure that
Arizona citizens do not lose their home or property or lose the value of their home or property without just
compensation. Whenever state and local governments take or diminish the value of private property, it is the intent
of this act that the owner will receive just compensation, either by negotiation or by an efficient and fair judicial
process.
Sec. 3. Title 12, chapter 8, Arizona Revised Statutes, is amended by adding article 2.1, to read:
Article 2.1. PRIVATE PROPERTY RIGHTS PROTECTION ACT
12-1131. PROPERTY MAY BE TAKEN ONLY FOR PUBLIC USE CONSISTENT WITH THIS
ARTICLE
EMINENT DOMAIN MAY BE EXERCISED ONLY IF THE USE OF EMINENT DOMAIN IS
AUTHORIZED BY THIS STATE, WHETHER BY STATUTE OR OTHERWISE, AND FOR A PUBLIC USE AS
DEFINED BY THIS ARTICLE.
12-1132. BURDEN OF PROOF
A. IN ALL EMINENT DOMAIN ACTIONS THE JUDICIARY SHALL COMPLY WITH THE STATE
CONSTITUTION'S MANDATE THAT WHENEVER AN ATTEMPT IS MADE TO TAKE PRIVATE
PROPERTY FOR A USE ALLEGED TO BE PUBLIC, THE QUESTION WHETHER THE CONTEMPLATED
USE BE REALLY PUBLIC SHALL BE A JUDICIAL QUESTION, AND DETERMINED AS SUCH WITHOUT
REGARD TO ANY LEGISLATIVE ASSERTION THAT THE USE IS PUBLIC.
B. IN ANY EMINENT DOMAIN ACTION FOR THE PURPOSE OF SLUM CLEARANCE AND
REDEVELOPMENT, THIS STATE OR A POLITICAL SUBDIVISION OF THIS STATE SHALL ESTABLISH
BY CLEAR AND CONVINCING EVIDENCE THAT EACH PARCEL IS NECESSARY TO ELIMINATE A
DIRECT THREAT TO PUBLIC HEALTH OR SAFETY CAUSED BY THE PROPERTY IN ITS CURRENT
CONDITION, INCLUDING THE REMOVAL OF STRUCTURES THAT ARE BEYOND REPAIR OR UNFIT
FOR HUMAN HABITATION OR USE, OR TO ACQUIRE ABANDONED PROPERTY AND THAT NO
REASONABLE ALTERNATIVE TO CONDEMNATION EXISTS.
12-1133. JUST COMPENSATION; SLUM CLEARANCE AND REDEVELOPMENT
IN ANY EMINENT DOMAIN ACTION FOR THE PURPOSE OF SLUM CLEARANCE AND
REDEVELOPMENT, IF PRIVATE PROPERTY CONSISTING OF AN INDIVIDUAL'S PRINCIPAL
RESIDENCE IS TAKEN, THE OCCUPANTS SHALL BE PROVIDED A COMPARABLE REPLACEMENT
DWELLING THAT IS DECENT, SAFE, AND SANITARY AS DEFINED IN THE STATE AND FEDERAL
RELOCATION LAWS, SECTION 11-961 ET SEQ. AND 42 USC 4601 ET SEQ., AND THE REGULATIONS
PROMULGATED THEREUNDER. AT THE OWNER'S ELECTION, IF MONETARY COMPENSATION IS
DESIRED IN LIEU OF A REPLACEMENT DWELLING, THE AMOUNT OF JUST COMPENSATION THAT
IS MADE AND DETERMINED FOR THAT TAKING SHALL NOT BE LESS THAN THE SUM OF MONEY
THAT WOULD BE NECESSARY TO PURCHASE A COMPARABLE REPLACEMENT DWELLING THAT IS
DECENT, SAFE, AND SANITARY AS DEFINED IN THE STATE AND FEDERAL RELOCATION LAWS
AND REGULATIONS.
12-1134. DIMINUTION IN VALUE; JUST COMPENSATION
A. IF THE EXISTING RIGHTS TO USE, DIVIDE, SELL OR POSSESS PRIVATE REAL PROPERTY
ARE REDUCED BY THE ENACTMENT OR APPLICABILITY OF ANY LAND USE LAW ENACTED AFTER
THE DATE THE PROPERTY IS TRANSFERRED TO THE OWNER AND SUCH ACTION REDUCES THE
FAIR MARKET VALUE OF THE PROPERTY THE OWNER IS ENTITLED TO JUST COMPENSATION
FROM THIS STATE OR THE POLITICAL SUBDIVISION OF THIS STATE THAT ENACTED THE LAND
USE LAW.
B. THIS SECTION DOES NOT APPLY TO LAND USE LAWS THAT:
1. LIMIT OR PROHIBIT A USE OR DIVISION OF REAL PROPERTY FOR THE PROTECTION OF
THE PUBLIC'S HEALTH AND SAFETY, INCLUDING RULES AND REGULATIONS RELATING TO FIRE
AND BUILDING CODES, HEALTH AND SANITATION, TRANSPORTATION OR TRAFFIC CONTROL,
SOLID OR HAZARDOUS WASTE, AND POLLUTION CONTROL;
2. LIMIT OR PROHIBIT THE USE OR DIVISION OF REAL PROPERTY COMMONLY AND
HISTORICALLY RECOGNIZED AS A PUBLIC NUISANCE UNDER COMMON LAW;
3. ARE REQUIRED BY FEDERAL LAW;
4. LIMIT OR PROHIBIT THE USE OR DIVISION OF A PROPERTY FOR THE PURPOSE OF
HOUSING SEX OFFENDERS, SELLING ILLEGAL DRUGS, LIQUOR CONTROL, OR PORNOGRAPHY,
OBSCENITY, NUDE OR TOPLESS DANCING, AND OTHER ADULT ORIENTED BUSINESSES IF THE
LAND USE LAWS ARE CONSISTENT WITH THE CONSTITUTIONS OF THIS STATE AND THE UNITED
STATES;
5. ESTABLISH LOCATIONS FOR UTILITY FACILITIES;
6. DO NOT DIRECTLY REGULATE AN OWNER'S LAND; OR
7. WERE ENACTED BEFORE THE EFFECTIVE DATE OF THIS SECTION.
C. THIS STATE OR THE POLITICAL SUBDIVISION OF THIS STATE THAT ENACTED THE LAND
USE LAW HAS THE BURDEN OF DEMONSTRATING THAT THE LAND USE LAW IS EXEMPT
PURSUANT TO SUBSECTION B.
D. THE OWNER SHALL NOT BE REQUIRED TO FIRST SUBMIT A LAND USE APPLICATION TO
REMOVE, MODIFY, VARY OR OTHERWISE ALTER THE APPLICATION OF THE LAND USE LAW TO
THE OWNER'S PROPERTY AS A PREREQUISITE TO DEMANDING OR RECEIVING JUST
COMPENSATION PURSUANT TO THIS SECTION.
E. IF A LAND USE LAW CONTINUES TO APPLY TO PRIVATE REAL PROPERTY MORE THAN
NINETY DAYS AFTER THE OWNER OF THE PROPERTY MAKES A WRITTEN DEMAND IN A SPECIFIC
AMOUNT FOR JUST COMPENSATION TO THIS STATE OR THE POLITICAL SUBDIVISION OF THIS
STATE THAT ENACTED THE LAND USE LAW, THE OWNER HAS A CAUSE OF ACTION FOR JUST
COMPENSATION IN A COURT IN THE COUNTY IN WHICH THE PROPERTY IS LOCATED, UNLESS
THIS STATE OR POLITICAL SUBDIVISION OF THIS STATE AND THE OWNER REACH AN
AGREEMENT ON THE AMOUNT OF JUST COMPENSATION TO BE PAID, OR UNLESS THIS STATE OR
POLITICAL SUBDIVISION OF THIS STATE AMENDS, REPEALS, OR ISSUES TO THE LANDOWNER A
BINDING WAIVER OF ENFORCEMENT OF THE LAND USE LAW ON THE OWNER'S SPECIFIC PARCEL.
F. ANY DEMAND FOR LANDOWNER RELIEF OR ANY WAIVER THAT IS GRANTED IN LIEU OF
COMPENSATION RUNS WITH THE LAND.
G. AN ACTION FOR JUST COMPENSATION BASED ON DIMINUTION IN VALUE MUST BE
MADE OR FOREVER BARRED WITHIN THREE YEARS OF THE EFFECTIVE DATE OF THE LAND USE
LAW, OR OF THE FIRST DATE THE REDUCTION OF THE EXISTING RIGHTS TO USE, DIVIDE, SELL OR
POSSESS PROPERTY APPLIES TO THE OWNER'S PARCEL, WHICHEVER IS LATER.
H. THE REMEDY CREATED BY THIS SECTION IS IN ADDITION TO ANY OTHER REMEDY
THAT IS PROVIDED BY THE LAWS AND CONSTITUTION OF THIS STATE OR THE UNITED STATES
AND IS NOT INTENDED TO MODIFY OR REPLACE ANY OTHER REMEDY.
I. NOTHING IN THIS SECTION PROHIBITS THIS STATE OR ANY POLITICAL SUBDIVISION OF
THIS STATE FROM REACHING AN AGREEMENT WITH A PRIVATE PROPERTY OWNER TO WAIVE A
CLAIM FOR DIMINUTION IN VALUE REGARDING ANY PROPOSED ACTION BY THIS STATE OR A
POLITICAL SUBDIVISION OF THIS STATE OR ACTION REQUESTED BY THE PROPERTY OWNER.
12-1135. ATTORNEY FEES AND COSTS
A. A PROPERTY OWNER IS NOT LIABLE TO THIS STATE OR ANY POLITICAL SUBDIVISION
OF THIS STATE FOR ATTORNEY FEES OR COSTS IN ANY EMINENT DOMAIN ACTION OR IN ANY
ACTION FOR DIMINUTION IN VALUE.
B. A PROPERTY OWNER SHALL BE AWARDED REASONABLE ATTORNEY FEES, COSTS AND
EXPENSES IN EVERY EMINENT DOMAIN ACTION IN WHICH THE TAKING IS FOUND TO BE NOT FOR
A PUBLIC USE.
C. IN ANY EMINENT DOMAIN ACTION FOR THE PURPOSE OF SLUM CLEARANCE AND
REDEVELOPMENT, A PROPERTY OWNER SHALL BE AWARDED REASONABLE ATTORNEY FEES IN
EVERY CASE IN WHICH THE FINAL AMOUNT OFFERED BY THE MUNICIPALITY WAS LESS THAN
THE AMOUNT ASCERTAINED BY A JURY OR THE COURT IF A JURY IS WAIVED BY THE PROPERTY
OWNER.
D. A PREVAILING PLAINTIFF IN AN ACTION FOR JUST COMPENSATION THAT IS BASED ON
DIMINUTION IN VALUE PURSUANT TO SECTION 12-1134 MAY BE AWARDED COSTS, EXPENSES
AND REASONABLE ATTORNEY FEES.
12-1136. DEFINITIONS
IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "FAIR MARKET VALUE" MEANS THE MOST LIKELY PRICE ESTIMATED IN TERMS OF
MONEY WHICH THE LAND WOULD BRING IF EXPOSED FOR SALE IN THE OPEN MARKET, WITH
REASONABLE TIME ALLOWED IN WHICH TO FIND A PURCHASER, BUYING WITH KNOWLEDGE OF
ALL THE USES AND PURPOSES TO WHICH IT IS ADAPTED AND FOR WHICH IT IS CAPABLE.
2. "JUST COMPENSATION" FOR PURPOSES OF AN ACTION FOR DIMINUTION IN VALUE
MEANS THE SUM OF MONEY THAT IS EQUAL TO THE REDUCTION IN FAIR MARKET VALUE OF THE
PROPERTY RESULTING FROM THE ENACTMENT OF THE LAND USE LAW AS OF THE DATE OF
ENACTMENT OF THE LAND USE LAW.
3. "LAND USE LAW" MEANS ANY STATUTE, RULE, ORDINANCE, RESOLUTION OR LAW
ENACTED BY THIS STATE OR A POLITICAL SUBDIVISION OF THIS STATE THAT REGULATES THE
USE OR DIVISION OF LAND OR ANY INTEREST IN LAND OR THAT REGULATES ACCEPTED
FARMING OR FORESTRY PRACTICES.
4. "OWNER" MEANS THE HOLDER OF FEE TITLE TO THE SUBJECT REAL PROPERTY.
5. "PUBLIC USE":
(a) MEANS ANY OF THE FOLLOWING:
(i) THE POSSESSION, OCCUPATION, AND ENJOYMENT OF THE LAND BY THE GENERAL
PUBLIC, OR BY PUBLIC AGENCIES;
(ii) THE USE OF LAND FOR THE CREATION OR FUNCTIONING OF UTILITIES;
(iii) THE ACQUISITION OF PROPERTY TO ELIMINATE A DIRECT THREAT TO PUBLIC
HEALTH OR SAFETY CAUSED BY THE PROPERTY IN ITS CURRENT CONDITION, INCLUDING THE
REMOVAL OF A STRUCTURE THAT IS BEYOND REPAIR OR UNFIT FOR HUMAN HABITATION OR
USE; OR
(iv) THE ACQUISITION OF ABANDONED PROPERTY.
(b) DOES NOT INCLUDE THE PUBLIC BENEFITS OF ECONOMIC DEVELOPMENT, INCLUDING
AN INCREASE IN TAX BASE, TAX REVENUES, EMPLOYMENT OR GENERAL ECONOMIC HEALTH.
6. "TAKEN" AND "TAKING" MEAN THE TRANSFER OF OWNERSHIP OR USE FROM A
PRIVATE PROPERTY OWNER TO THIS STATE OR A POLITICAL SUBDIVISION OF THIS STATE OR TO
ANY PERSON OTHER THAN THIS STATE OR A POLITICAL SUBDIVISION OF THIS STATE.
12-1137. APPLICABILITY
IF A CONFLICT BETWEEN THIS ARTICLE AND ANY OTHER LAW ARISES, THIS ARTICLE
CONTROLS.
12-1138. SEVERABILITY
IF ANY PROVISION OF THIS ACT OR ITS APPLICATION TO ANY PERSON OR CIRCUMSTANCE
IS HELD INVALID THAT INVALIDITY DOES NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF
THE ACT THAT CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION, AND
TO THIS END THE PROVISIONS OF THIS ACT ARE SEVERABLE.
----- Original Message -----
From: Michelle Steinberg
To: central-city-discuss at gcna.info
Sent: Sunday, September 10, 2006 11:26 AM
Subject: Re: PROP 207
http://www.noprop207.org/index.htm
http://www.hopeforarizona.com/
these are the two websites re: Prop 207
In my opinion, MJ is right in her assessment
VOTE today to change the world tomorrow.
REGISTER AND VOTE!!
www.servicearizona.com
----- Original Message -----
From: Jo Clute
To: central-city-discuss at gcna.info
Sent: Sunday, September 10, 2006 12:31 AM
Subject: PROP 207
Can someone PLEASE.....explain prop 207 to me or give me their opinions, I am so confused on this topic and how this prop is written.
I am extremely PRO personal property rights but I have also heard that this prop is pro personal rights cloaked in darkness.
Anywone??
This is suppossed to be a heated topic coming up with the election.
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