Goldwater Institute: Property Rights Slight

Tucson attempts to evade property rights limits

by Clint Bolick

Two-thirds of Arizona's voters last year approved Prop. 207, creating the nation's strongest protections for private property rights. Prop. 207 curbed eminent domain abuse and limited "regulatory takings," requiring compensation when government regulation diminishes property values for ends that fall outside traditional city police powers. Some cities have complied, but others have sought to evade.

First up were open-ended waivers that cities attempted to coerce property owners into signing, forcing them to surrender their Prop. 207 rights forever in exchange for development permits or variances. Scottsdale, Peoria, and Mesa were among those using illegal waivers, but they appear to have backed off.

Now comes Tucson, using sleight of hand to restrict development without incurring Prop. 207 liability. Unlike Flagstaff, which overtly enacted an historic preservation ordinance and is facing the consequences in court, Tucson buried its anti-development scheme within a demolition ordinance in its building code. Anyone who owns a structure more than 45 years old (an age at which few of us like to think of ourselves as "historic") within the city limits as they existed in 1953 can no longer demolish and replace it with a more modern or upscale structure as a matter of right. Rather, the owner must undertake an impact study, after which the city may elect to purchase the property or order it sold.

The city thinks that by placing the rule within the building code, it can evade Prop. 207-but the building code shields only regulations enacted for health and safety.

Tucson's ordinance diminishes values for scores of property owners to the tune of millions of dollars. Under Prop. 207, cities can preserve old (or even not-so-old) buildings, but only if they spread the costs across the entire community rather than imposing them on individual property owners. Politicians often resemble magicians by making tax dollars disappear-but this act of legerdemain won't bear up in the light of day.

Clint Bolick is director of the Goldwater Institute's Scharf-Norton Center for Constitutional Litigation. In his of-counsel capacity at Rose Law Group, he represents one of the Tucson property owners affected by the demolition ordinance.