Proposition 207 aimed to expand property rights in Arizona. If the government changed the rules for how you could use your land, you could ask for compensation for any lost value.
Now cities and counties across Arizona, including Tucson, Marana and Pima County, are asking property owners to waive those rights if they want to develop their property.
Government officials say the waivers close a loophole in the new law that could leave taxpayers vulnerable to frivolous lawsuits.
The proposition's language allows for the waivers, but supporters of the new law say local governments need to be careful not to take things too far.
Making property owners promise not to sue over the specific action they have requested — like a rezoning or conditional use permit — is OK.
Making property owners promise not to sue ever over anything in exchange for a rezoning isn't OK.
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While most Tucson area governments are taking the more conservative approach, property-rights advocates say some towns in the supposedly developer-friendly Phoenix area are crossing the line.
"It appears to be an attempt to repeal Proposition 207," said Clint Bolick, a senior fellow at the Goldwater Institute, a libertarian think tank. "It's unfortunate that governments are looking for ways not to comply but to evade it. It's that kind of arrogance that led voters to endorse Proposition 207."
Proposition 207 passed with almost 65 percent of the vote last November. It restricts the use of eminent domain for economic development purposes and allows property owners to file claims for when government land-use rules lower their property value.
It was dubbed the Private Property Protection Act.
Government officials say one problem with the law is that it appears to allow someone to request a rezoning and then file a claim, seeking monetary damages because the rezoning lowered his property value.
"The way that lawsuits happen today, I don't think it's unreasonable," said Ken Strobeck, executive director of the League of Arizona Cities and Towns. "It's illogical, but it's not outside the realm of possibility."
The league is encouraging its members to adopt waivers in which the person seeking a rezoning or conditional use permit agrees not to seek claims for the specific action requested.
The act contains language that allows local governments to use those sort of waivers.
Pima County and Marana have used similar language in rezonings approved this year. Planners said they have not heard any objections from developers.
Tucson plans to make the waivers standard. Though the actual language hasn't been adopted, City Attorney Mike Rankin said it would only apply to discretionary acts like rezonings, conditional use permits and annexations. And it would block claims for the specific action requested by the applicant.
Sahuarita also is working on a waiver, while Oro Valley, which receives only a handful of rezoning requests a year, is taking a wait-and-see approach.
Strobeck said some cities are using broader waivers, and he suspects some of the waivers will end up in court.
One city that has drawn attention is Apache Junction, east of Phoenix. Its waiver includes language that indemnifies the city, effectively barring lawsuits.
Joel Stern, the city attorney there, said the issue has been blown out of proportion. He said his intention was to protect the city from claims about the specific action being sought, not from all claims.
But an applicant who wanted to change some of the conditions on a permit objected to the waiver, saying it went too far in depriving him of his rights under Proposition 207.
Stern said he is working with the applicant on language he would find acceptable.
"We don't want to be the first test case," Stern said.
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