AG supports state's controversial dust law - East Valley Tribune: News

AG supports state's controversial dust law

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Posted: Friday, December 12, 2008 10:21 pm | Updated: 11:57 pm, Fri Oct 7, 2011.

The state can require paving or dust control of parking lots - even in front of homes - without running afoul of the rights of property owners, Arizona Attorney General Terry Goddard has concluded.

Goddard, in a formal legal opinion, said Friday he finds nothing improper with a year-old state law designed to cut down on dust pollution. He said such mandates are not an unconstitutional "taking" of property. He also said governments need not provide compensation to property owners despite a 2006 state constitutional amendment which says governments must pay landowners when new rules or regulations reduce the value of someone's property.

Goddard sidestepped the question of whether forcing a property owner to pave a parking lot decreases the land's value.

Instead, he pointed to an exception to that requirement for "public health and safety." And since the purpose of the requirement is to reduce air pollution, he said it fits within that exception.

The opinion most immediately affects property owners in Maricopa County and adjacent parts of Pinal County.

But Sen. Carolyn Allen, R-Scottsdale, who crafted the 2007 law, said the broad nature of Arizona's air pollution problems might require that the mandate be expanded into other areas of the state. This opinion, she said, paves the way for that.

The 2007 law contains a host of requirements designed to reduce the "brown cloud" of pollution caused by fine particulates that become and stay airborne.

It includes requirements on cities and counties in the Phoenix area to prohibit use of leaf blowers on high pollution days and bans at all times blowing debris into the street. It also mandates that communities start paving dirt roads.

There also are sections that require paving of parking lots at commercial buildings and apartment complexes.

What is causing much of the fuss is one provision which applies to any residential property that has at least 3,000 square feet of parking lots and driveways. Allen said that upset the owners of some larger homes in places like north Scottsdale who contend their big circular dirt and gravel driveways and parking areas are part of the rural charm of the area.

"I got some fairly irritated e-mails," said Allen, adding she also was "scolded" by some of the property owners. She said some who run small equestrian businesses out of their homes and ranches argued the move is an unconstitutional taking of their property rights.

Goddard said both state and federal courts have concluded landowners need to be compensated when government action deprives them of the beneficial use of their property.

But the attorney general said those cases make it clear that a regulation is not a "taking" that requires compensation if it does not deprive the landowner of all uses of his or her property. He said a law or rule that simply reduces the value, by itself, is not enough.

"The requirement to pave or stabilize the driveways and parking areas of a parcel of land to improve the public's air quality presumably would not substantially preclude a property's intended use," Goddard wrote.

And he said the regulation does not result in the government's "physical invasion" of the property, the other grounds under which courts have said compensation is required.

Friday's opinion is the second defeat for foes of dust control measures.

When Scottsdale, in compliance with the state law, adopted its own dust control measures, a group circulated petitions to put the issue before voters. But in a ruling earlier this year, Maricopa County Superior Court Judge Peter Swann said the city was simply complying with the state law, making the action "administrative" and not subject to referendum.

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