If homeowners want a zoning change, they should not be able to sue if their request devalues their property - East Valley Tribune: Opinion

If homeowners want a zoning change, they should not be able to sue if their request devalues their property

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Posted: Tuesday, February 6, 2007 5:24 am | Updated: 7:57 pm, Fri Oct 7, 2011.

Lori Klein, executive director of Arizona Homeowner Protection Effort, sounded rather shrill in media interviews and in a new release last week as she denounced cities that are seeking waivers to Proposition 207 from property owners who want some type of a permit from planning departments.

The waivers essentially say a property owner won’t demand payment from the taxpayers if the planning permit somehow causes his or her land to lose market value, a significant protection authorized by the new law. Klein said cities that ask for these waivers are subverting the intent of state voters when they overwhelmingly approved Prop. 207 in November.

“This is arrogance, when institutions have more power than the individual,” Klein told Tribune writer Art Martori.

We have to agree with Klein that it appears some cities are letting their worst fears run out of control. For example, Apache Junction is requiring a waiver for every planning permit, so landowner Bill Sandry won’t be able to put up a cell phone tower unless he signs one. Scottsdale is handing out waivers with every development application, and that city hasn’t decided what to do if someone lacking protection from federal law refuses to sign.

But other cities are taking a more measured approach. Chandler and Gilbert are requiring waivers only in relation to zoning changes, the most commonly understood issue addressed by this portion of Prop. 207. Mesa and Queen Creek are still working on potential policies.

We have to point out that Klein’s group practically invited cities and counties to seek these waivers with the way it drafted the initiative that became Prop. 207.

Widely promoted as a law to rein in government’s power of condemnation, Prop. 207 also says a property owner can demand payment if a government adopts a rule that restricts the ability to use or sell property in a way that lowers its market value.

The intent was to compensate landowners when governments “down-zone,” or change land-use laws, against the owners’ wishes. But the statute doesn’t provide for an exemption when a property owner and the city work together to change the zoning rules.

In fact, Section 12-1134, subsection I, tells governments they can seek waivers to avoid a “down-zone” claim regarding “…action requested by the property owner.” This implies that, without a waiver, the new law allows a property owner to ask for a zoning change and still sue if the property loses value after the government merely approved the property owner’s plans.

That’s why the League of Arizona Cities and Towns has advised its members to make liberal use of waivers with this untested law. And that’s why Klein’s protests seem somewhat hollow.

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