by J.D. Tuccille
November 1, 2006

Keep Arizonans secure in their homes and businesses

Opponents of Proposition 207, the Home Owners Protection Effort, claim that Arizonans don't need improved defenses against unjust government takings of private property. They insist the threat posed to our homes and businesses by avaricious politicians and their developer buddies is negligible – and that abused property owners should take their claims to the courts. But as people who have actually lost the use of their property can tell you, the threat is very real – and the courts offer an uncertain path to relief.

Just ask Randy Bailey. Mr. Bailey's family has owned Bailey's Brake Service in Mesa since the early 1970s. He purchased the shop from his father in 1995 and provides jobs and tax revenues to the city – but that's apparently not enough for some politicians. The city planned to take the brake shop through eminent domain, raze it, and transfer the land to a privately owned hardware store so that it could move to the more desirable location.

Mr. Bailey ultimately won his lawsuit against the city, but he was fortunate. The Arizona chapter of the Institute for Justice stepped in to help at its own expense, providing legal expertise that might have otherwise been out of reach for a small businessman battling city hall.

Other people are less fortunate -- like Emmett McLoughlin. Mr. McLoughlin owns property in Pima County. When he purchased the land it was zoned for retail business use. When neighbors learned he was going to develop his land, they went to the Pima County Board of Supervisors and asked the Board to downzone the land and so prevent development of the property. The Board of Supervisors quickly did just that. Though Mr. McLoughlin still owns the title to the land, it is now worth a fraction of what he paid.

Mr. McLoughlin took his fight to the courts -- and lost. "We spent a lot of time and resources trying to fight this, and the courts just ruled against us for the fourth time," he says. "Those who say that we can rely on the courts to protect our property rights in Arizona are dead wrong. The courts are often the problem, not the solution."

Even if Mr. McLoughlin had prevailed in his struggle through the courts, it would have been, as in Bailey's case, the culmination of a costly and unnecessary legal battle to protect private property that never should have been at risk to begin with. Why should people have to incur hardship and expense just to hold onto what belongs to them by right?

Proposition 207 is a better solution than a paper chase through the courts. Proposition 207 will prevent governments from taking private property from people like Randy Bailey and turning it over to well-connected private developers who promise to fill tax coffers in return. Never again would treasured homes be seized just because somebody else could make more money from the land.

The initiative would require government officials to state a public use for land they want to seize. The government would have to pay the price of the land "at its highest and best use." The government would not be able to transfer the land to another private party.

Proposition 207 also recognizes that, as easy as it is for politicians to seize private property, they often don't want to pay the price for what they take. Instead, they impose intrusive rules and regulations on home and business owners like Emmett McLoughlin that have the same result as an outright seizure: The owners lose the use of their property. That's called "regulatory taking" and Proposition 207 would help to prevent such evasions of protections for homes and businesses. In such circumstances, property owners would have to be justly compensated for their loss of the ability to use and enjoy their land.

Arizonans have the right to be secure in their homes and businesses. They deserve to know that they will not be deprived of the use of their property for any but the most important reasons – and that they'll be compensated for their losses.

Proposition 207 will provide the protection and reassurance that Arizonans deserve.

This column was published November 1, 2006 by Verde Valley Newspapers.

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