When Bill Sandry went to Apache Junction City Hall to get a development permit, he was told he could only get one if he agreed to waive one of Arizona’s newest property rights.
The city demanded that Sandry give up his right to sue the city if any land-use decision reduced his property value. The right to seek reimbursement under those conditions was part of Proposition 207, which was approved by Arizona voters in November.
All Sandry wanted to do was put up a cell phone tower on his property. Instead, he ran into what is sure to be a fierce battle between property-rights advocates and cities across the state.
Critics of the waivers said it’s unconstitutional to essentially bypass a law that garnered overwhelming support from voters.
Supporters said the waivers were necessary to protect cities against a vague law that could lead to costly lawsuits.
Sandry, for one, doesn’t plan on signing the waiver. But he has less than two weeks to do so or his permit request for the tower will be denied.
“I couldn’t believe it,” he said. “After Prop. 207 passed, they take away the very rights that 207 stood for?
“I just couldn’t believe that anyone in an elected capacity would ask someone to do that.”
Now, cities across Arizona are issuing Prop. 207 waivers to residents who apply for development permits. Most East Valley cities are either requiring waivers, offering them as a voluntary measure or trying to develop similar policies that will cover all future rezoning requests or site adjustments such as an addition to a home.
Apache Junction has the most aggressive policy, requiring waivers for any type of development in the city.
Gilbert and Chandler require waivers from those who apply for zoning changes.
Mesa and Queen Creek have started drafting policies.
Scottsdale officials said they’re requesting waivers on a voluntary basis.
Pat Dodds, a Scottsdale spokesman, said nearly all developers have agreed to sign the documents. He said it was unclear whether they would always be voluntary or if the city someday would decide to require them.
“We are still in a formative process,” he said. “If you’re asking tomorrow, the circumstances might be different.”
And some cities are waiting for the property-rights debate to unfold before creating their own policies.
Gary Lassen, a land-use attorney, said the Prop. 207 waivers would probably not hold up in court, under any circumstance.
“It’s illegal. It’s unconstitutional. It’s void,” Lassen said. “It will subject them to a lot of litigation.”
Lassen said he is considering challenging Apache Junction in court on Sandry’s behalf.
“The city of Apache Junction could be embarrassed if they don’t back off,” Lassen said. “They could end up in court, paying a lot more money than they thought, a lot sooner than they thought.”
The idea of waivers originated at the League of Arizona Cities and Towns, which recently recommended that cities protect themselves from liability by requiring waivers for all transactions that could trigger a lawsuit under the
provisions of Prop. 207.
The league, which advocates on behalf of its member cities, fought Prop. 207 prior to last year’s election because cities, counties and the state could be held responsible for a wide range of land-use decisions that diminish the value of private property.
For instance, landowners could request a zoning change from industrial use to commercial use, which would typically reduce the property value.
Ken Strobeck, executive director of the League of Arizona Cities and Towns, said the language in Prop. 207 would give landowners grounds to sue the city for complying with their requests.
“It’s very broad in its definition of land-use law,” Strobeck said. “That’s part of the challenge we have as cities to navigate. If somebody applies for a zoning change that down-zones, even if they requested it, they could turn around and sue the city for granting it.”
Prop. 207 was sponsored in the November election by the Arizona Homeowner Protection Effort. That group’s leaders said they were outraged that local governments would choose to undermine the will of voters.
“It’s their way to bypass 207. But we’ll see,” said Lori Klein, executive director of Arizona Homeowner Protection Effort. “This is arrogance, when institutions have more power than the individual.”
Klein said requiring developers and homeowners to waive their rights could discourage future investment in Arizona.
“Why would you want to stop healthy expansion that you get to oversee?” she asked. “It’s cutting off your nose to spite your face.”
Apache Junction is the only East Valley city to require Prop. 207 waivers for all land-use transactions within city limits.
“This is what voters wanted. This is what the city is doing,” said Apache Junction City Attorney Joel Stern. “We’ve got to protect the city. The whole idea is to get a waiver any time you do anything with land use.”
In November, Arizona voters passed Prop. 207 with a 65 percent majority. The measure gave property owners the right to sue state, county or city governments if they enact a landuse law that reduces a landowner’s property value. Most East Valley cities are including waivers of Prop. 207 rights when conducting land-use transactions.
MESA: Drafting a policy that will likely require waivers for annexations to the city, adjustments to site plans and any zoning changes.
SCOTTSDALE: Requests voluntary waivers for all land-use transactions.
TEMPE: Case-by-case policy; has only received one voluntary waiver; considering requirements in other cities; may revise its policy.
CHANDLER: Requires waivers for all zoning requests.
GILBERT: Requires waivers for all zoning requests.
APACHE JUNCTION: Requires waivers for all land-use transactions.
QUEEN CREEK: Doesn’t have a policy, but considering mandatory waivers for zoning changes, subdivision, plot and site-plan applications.
Source: Cities of Mesa, Scottsdale, Tempe, Chandler, Gilbert, Apache Junction and the Town of Queen Creek.