PHOENIX — The state can mandate paving or dust control of parking lots — even in front of homes — without running afoul of the rights of property owners, Attorney General Terry Goddard has concluded.
Goddard, in a formal legal opinion Friday, said he finds nothing improper with a year-old state law designed to cut down on dust pollution. He said such mandates are not an unconstitutional "taking" of property.
He also said governments need not provide compensation to property owners, despite a 2006 state constitutional amendment which says governments must pay landowners when new rules or regulations reduce the value of someone's property.
Goddard sidestepped the question of whether forcing a property owner to pave a parking lot decreases the land's value.
Instead, he pointed to an exception to that requirement for "public health and safety." And Goddard said since the purpose of the requirement is to reduce air pollution, it fits within that exception.
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The opinion most immediately affects property owners in Maricopa County and adjacent parts of Pinal County.
But Sen. Carolyn Allen, R-Scottsdale, who crafted the 2007 law, said the broad nature of Arizona's air pollution problems might require the mandate be expanded into other areas of the state. This opinion, she said, paves the way for that.
That 2007 legislation contains a host of requirements designed to reduce the "brown cloud" of pollution caused by fine particulates that become and stay airborne.
It includes requirements on cities and counties in the Phoenix area to prohibit use of leaf blowers on high pollution days and bans at all times the blowing of debris into the street. It also mandates communities start paving their dirt roads.
There also are sections that require paving of parking lots at commercial buildings and apartment complexes.
What is causing a fuss is a provision which applies to any residential property which has at least 3,000 square feet of parking lot and driveways. Allen said that upset the owners of some larger homes in places like north Scottsdale who contend their big circular dirt and gravel driveways and parking areas are part of the rural charm of the area.
Goddard said both state and federal courts have concluded landowners need to be compensated when government action deprives them of the beneficial use of their property.
But the attorney general said those cases make it clear that a regulation is not a "taking" that requires compensation if it does not deprive the landowner of all uses of his or her property. He said a law or rule that simply reduces the value, by itself, is not enough.
"The requirement to pave or stabilize the driveways and parking areas of a parcel of land to improve the public's air quality presumably would not substantially preclude a property's intended use," Goddard wrote. He said the regulation does not result in the government's "physical invasion" of the property, the other grounds under which courts have said compensation is required.
