A new lawsuit challenging a Flagstaff ordinance ultimately could determine the future of zoning regulations across the state.
The Pacific Legal Foundation is asking a Coconino County Superior Court judge to force the city to compensate three landowners for what it says is the reduced value of their properties. The organization, which represents property owners in legal fights across the nation, contends that the restrictions in the city’s new historic preservation district effectively prevent the individuals from developing their lots as planned. Regulations in the historic district are above and beyond standard zoning rules.
What gives the landowners the right to sue is Proposition 207, approved by voters last November.
That measure was designed to prevent government from using their right of “eminent domain’’ to take private property from one person and give it to another, often a developer.
But the measure, which passed on a 65-35 percent margin, also requires “just compensation’’ if any new law governing property use is enacted which “reduces the fair market value of the property.’’
Flagstaff City Attorney Pat Boomsma said she believes the city will win because there is no proof that the ordinance actually diminishes the value of anyone’s property.
The outcome of the case will be watched with interest statewide.
Just the threat of lawsuits already forced Phoenix to repeal a historic district designation. And Tempe has backed off of plans to give historical status to -- and impose new restrictions on -- the Maple-Ash neighborhood.
And Boomsma said the one thing the lawsuit will resolve is exactly how a court must determine whether someone’s property is worth less because of a zoning change.
The Flagstaff ordinance, adopted in June, empowers a new Historic Preservation Commission to consider -- and reject -- any building permits in the 15 square blocks of the district.
That commission, in turn, can impose a series of demands, ranging from the slope of the roof to a requirement to use “unique local materials’’ such as pine, limestone and red sandstone. There also are requirements for yards to be at least 1,000 square feet and prohibitions against removing trees of at least one foot in diameter unless each is replaced with a tree at least eight feet tall.
In one case, the lawsuit says it prevents Jon Regner from replacing the rear structure on his property with a duplex and renovating the front one as he had planned.
The lawsuit says Paul Turner is being prevented from building a house on his property. And Bob Richards and Margaret Allen effectively are being barred from expanding the main house on their land and putting a second story on the rear house.
Requests for compensation by the owners of all three properties were ignored by the city, the lawsuit says.
In essence, the only way to adopt broad land use regulations and get around the compensation requirement is to get written waivers from every landowner in the area.
Proposition 207 does have exceptions.
Cities can impose land use rules to protect public health and safety, including building and health codes.
Governments also can impose other types of restrictions, such as where liquor can be sold, prohibiting topless dancers and adult bookstores, and barring landowners from selling or renting to sex offenders. And property owners also can be barred from using their property in a way “historically recognized as a public nuisance.’’
Timothy Sandefur, an attorney with the foundation, said the whole intent of Proposition 207 was to keep “property owners from being exploited this way by bureaucrats.’’
“If the government takes away your property rights, it should compensate you for that taking,’’ he said in a prepared statement. “Unfortunately, the city of Flagstaff doesn’t think it’s necessary to comply with state law.’’