I’m back to the subject of the Supreme Court’s decision in Kelo v. City of New London, which declared that the Constitution permits government to take property from one private owner and sell it to another private owner as long as the first owner is adequately compensated. In other words, as the Court said, the government can “do what it wants so long as it pays the charge.”

The Arizona legislature attempted to undo the effect of the Kelo decision in Arizona by adopting legislation limiting the government’s power to take property, but the legislation was vetoed by Governor Napolitano. That led to the introduction of an initiative, Proposition 207, that will be on the ballot in November.

Titled the Private Property Rights Protection Act, the initiative actually addresses two separate but related concepts, both of which I have told you about before. The first concept is under what conditions can the government use its power to take private property, that is, the power of eminent domain. The second concept is whether government action short of acquiring ownership of private property is considered a taking, sometimes referred as “regulatory taking.”

Proposition 207 defines the rights of a property owner when the state or a county or city government exercises the power of eminent domain. These rights are in addition to already existing rights set forth in statutes and the Arizona constitution.

Proposition 207 would limit the use of eminent domain to situations where eminent domain is authorized by the state and the property taken is put to a public use. The proposition defines “public use” as any of the following:

1. The use of land by the general public or by public agencies.

2. The use of land for utilities.

3. The acquisition of property to eliminate a direct threat to public health or safety caused by the current condition of the property.

4. The acquisition of abandoned property.

The proposition expressly provides that “public use” for which the government can exercise the power of eminent domain “does not include the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health.” That, as you may recall, is exactly what the City of New London did to Ms. Kelo.

As for the “regulatory taking” aspect of the initiative, Proposition 207 also provides that a property owner is entitled to just compensation by the government if the value of property is reduced by the enactment of any “land use law,” which is defined as “any statute, rule, ordinance, resolution or law enacted by this state or a political subdivision of this state that regulates the use or division of land or any interest in land or that regulates accepted farming or forestry practices.” The effect of this part of the initiative would be, among other things, to effectively undo the Arizona Court of Appeals decision that said the legislature couldn’t prohibit local government from “downzoning” property without the owner’s consent. Under the initiative a local government could reduce the availability or intensity of uses permitted on a property, as long as it compensated the owner for the resulting reduction in the value of the property.

The initiative contains exceptions for seven types of land use laws, which could be enforced without compensation to land owners:

     1. laws that protect the public’s health and safety; including fire and building codes, health and sanitation, transportation or traffic control, and waste and pollution control;

     2. laws that limit uses that are historically recognized as a “public nuisance”;

     3. land use requirements imposed by federal law;

     4. law that limit the use of a property for housing sex offenders, selling illegal drugs, liquor control, or adult entertainment;

     5. establishing locations for utility facilities;

     6. laws that do not directly regulate an owner’s land; and

     7. laws that were enacted before the effective date of the initiative.

The proposition also deals with the issue of the legal expenses incurred by a property owner in an eminent domain lawsuit or a “regulatory taking” lawsuit by providing that if a property owner is successful, i.e. if the taking is found to not be for a public use or is found to be a “regulatory taking,” the government would be required to pay the property owner’s attorney fees and costs.

There are apparently well-financed groups advocating both for and against Proposition 207. We’ll see if the voters go for it or not.