Proposition 207

Sept. 21, 2006

Transcript:

Michael Grant:
Tonight on Horizon, proposition 207 would limit the use of eminent domain. It would also give a property owner compensation for any loss of property value due to land use law. We will hear from both sides on that issue. Also hear from both sides on proposition 205. That would change Arizona to a vote by mail state. All that is next on Horizon.

Michael Grant:
Good evening. Welcome to Horizon. I'm Michael Grant. By strict definition, eminent domain is the right of a government to take private property for public use. It is a power given to government by the United States constitution. In practice, there are usually limitations on that power and state legislatures, including the one here in Arizona, have defined those limitations. In Arizona, for example, the constitution states explicitly that private property shall not be taken for private use; another aspect of the power is becoming more visible. A government regulating powers have the power to affect the value of priority property and now some activists want to ensure that just compensation is given to property owners if the zoning lessens the value of their property. Larry Lemmons reviews what has led to the existence of proposition 207.

Larry Lemmons:
In 2005, the United States Supreme Court ruled that local governments may force landowners to sell for private development. The Arizona constitution's definition of the limitation of eminent domain would prohibit that. But the ruling nevertheless sent chills down the spines of private property activists.

Tim Keller:
The U.S. Supreme Court has said that under the Fifth Amendment to the U.S. constitution there is tremendous difference given to the legislative body in determining what or what does not constitute the public use.

Larry Lemmons:
Nothing came out of the state legislature subsequently, which left the way clear for proposition 207. Supporters of the proposition point to recent eminent domain battles in the valley. The city of Mesa attempted to use eminent domain to condemn Randy Bailey's brake service. And the city of Tempe attempted to condemn the home of Kenneth and Mary Ann pillow. Both attempts failed but those and other examples around the state and country have convinced many that more limitations are needed. Proposition 207 limits the definition of public use to include the use of land by the general public or by public agencies. The use of land for utilities. The acquisition of property to eliminate a direct threat to the public health or safety. And the acquisition of abandoned property. 207 excludes any public benefit of economic development. Zoning laws are included in the issue and prop 207 due in some part to legislation in Oregon.

Ken Strobeck:
It says if there's a diminution of value due to regulation that the property owner can either claim for a waiver of the regulation or for compensation.

Larry Lemmons:
This so-called regulatory takings aspect of 207 is the source of most of the controversy. Opponents say the proposition could end up costing taxpayers millions in litigation costs.

Ken Strobeck:
If you ever update or change a zoning ordinance, and somebody claims that it diminishes the value of their property, whether it does or not -- all they have to do is file this claim and then they theoretically they are entitled to judicial action to determine if it's taking so this is an open invitation to litigation. Lawyers will be fully employed.

Larry Lemmons:
Supporters say property owners should be compensated if the government affects their property.

Tim Keller:
f government decides there's a value to the rest of the society to zoning but that zoning impacts that property owner in such a way they lose value that society properly should compensate that land owner.

Michael Grant:
Here now to talk about the pros and cons of proposition 207 are State Senator Chuck Gray of Mesa and the Executive Director of Arizona League of City and Counties Ken Strobeck who got couple of shots on this tape. Gentlemen, welcome. Senator Gray, why is it a good idea to pass this proposition?

Chuck Gray:
Michael, it's a great idea because we have had historically in this country right to own and control our property, and through time, they have, the cities and the counties and government entities, have taken it upon themselves to start to encroach upon our rights as property owners. And so it's time that we take those rights back, and we are going to try to do that through proposition 207, which really has three main points. Number one, you can't take private property and give to it somebody else that's a private property owner, especially not for economic development. Number two; you can't have a blight overlay that blights the whole area as a designator. Instead you have to show property by property so those who are good property owners aren't damaged. And thirdly, if the public regulates your land for a public purpose but they don't take title to it and you lose value in your property, I don't think it's fair that one person have to pay the entire cost of the public benefit that's enjoyed at large.

Michael Grant:
All right. Ken, what do you see as problems with the proposition?

Ken Strobeck:
Michael, if this was just about eminent domain I wouldn't be here, we wouldn't be objecting to the measure. Eminent domain provisions are pretty benign and things we agree to during the course of the legislative session. The real tip of the iceberg is eminent domain. The big part of the iceberg is this regulatory takings. In the sense that it essentially would freeze all zoning and all land use regulations just the way they are today, because any change in zoning and mining regulations, farm and forestry, any kind of thing that has the effect of limiting in any way the use of someone's land would trigger a potential for a claim, and that money would come straight out of state, city, and county budgets that are used for other purposes.

Michael Grant:
Now, Ken, let me just clarify, though. One of the main points of the proposition is to specifically define "economic development." as not being a public use. The sort of situation we saw in the Bailey's brake shop, and some other cases.

Ken Strobeck:
Right.

Michael Grant:
No argument with that part of the proposition?

Ken Strobeck:
No quarrel with that. We understand that the public doesn't want to have economic development as a justification for using eminent domain, and we have agreed to that through the course of the legislative session.

Michael Grant:
Ok. Chuck, what about this proposition that -- well, you know, hold it. You are kind of, if this passes, you are sort of freezing in place all of the decisions that, bad and good, that we have made about land use, planning, generally, and any movement in the future is going to trigger a claim by somebody that, well, you have taken a chunk of my property value.

Chuck Gray: Well, the interesting thing about this is that it's prospective, so nothing that happened in the past is affected. But when we take a look at what's going to happen in the future, and a property owner says to the city or to the county, or to do government entity, I want to change, if he initiate that is then he has no claim for diminution of value. His property value will probably go up so it won't be diminished. If we are talking about agriculture land that's as low as you can get exempt, they could say you can't build anything on it and if they do that the public at large must have a benefit for doing that but why should that property owner pay for the benefit that the entire public enjoys at large?

Michael Grant:
Ken, I think obviously, one of the things that's been kicked around here for a long time, and one of the concerns is, and let me give you a -- not completely unreal hypothetical. I think building on what Senator Gray said. What if a west valley community was to say, if you have vacant land around a military air base, you can't do any development on it whatsoever. Shouldn't the property owner have a right of action in that kind of case?

Ken Strobeck:
I think the senator said, since this is a prospective measure that if people bought the property with that knowledge in place, they would have that understanding. If this was an overlay that came on later, I would say where your point was but let me give you another example that actually did happen. In the central part of Phoenix there was an area zoned c-4, which allowed four-story office buildings. There was an office building that was built but it was in predominantly a residential area, and the neighbors said, look, these people in these offices are looking to my backyard; this is out of place with the character of the neighborhood. They went to the city, and the city, in a special session, city council, changed c-4 zoning in a large area to c-2 zoning to allow nothing over two stories instead of four stories. Had this law been in place every single property owner affected, whether they ever intended to build a four-story apartment or office building or not, would have a claim against the city for whatever the value could have been if they had built an office tower. So what we are doing is we are not saying, this is a real, legitimate purpose that you are going to use but any change would allow to you file this claim regardless of whether you actually intend to do it.

Michael Grant:
So good idea? To restrict the city from that kind of thing?

Chuck Gray:
The city is not restricted from doing that. The issue is, the proper owner bought that property knowing what it was currently zoned and has a vested interest in that property. And so when he goes in to build his project, which was currently allowed, and then the city, which is or the residents at large, say, we decided that's not a good idea, the residents get a benefit by changing his property. So they all should pay the difference in value because they are getting the benefit of not having somebody look into their backyard when that's why the city zoned it in the first place.

Michael Grant:
From that standpoint, I think, Ken, you could argue it's not a whole lot different than the air base situation. City is legitimately saying, well, we want to change the character, tenor, we want to provide some broad public benefits to people in the immediate or perhaps even general vicinity, but why should you place that burden on the back of an individual property owner?

Ken Strobeck:
In that example the broad public benefit was brought by the residents who had homes who brought properties who had their homes and residences and wanted them protected from somebody building a tall building next to them and staring in their backyard.

Michael Grant:
But by buying with that knowledge.

Ken Strobeck:
Buy -- well --

Michael Grant:
With the knowledge that there was a four-story building that might go up. Right?

Ken Strobeck: Right. Well, but if you said, everyone that had c-4 zoning is now limited to c-2 zoning and every individual house owner came and said, well, I want compensation because now I can't build my office tower, that's not realistic. It's not -- they wouldn't legitimately -- they wouldn't be planning to do that anyway.

Michael Grant:
Chuck, let me clarify something for the benefit of voters trying to understand this thing. And I think the best illustration for it is the Trump Tower project, which the city of Phoenix ultimately backed off of. But let me ask you to assume that city of Phoenix had stuck with that. And had authorized the increase in property height, I think it was from like four or five stories to 10 stories. And let's say I live in that vicinity and I feel that the city of Phoenix action by allowing a building that tall has impaired my property value. It wasn't zoning action on my property, but doing something near it that I think impacted value. Would I have a cause of action under this?

Chuck Gray:
No. In the case of the Trump Tower, if they -- if the city of Phoenix had allowed a high extension in that case and he had a built his towers, the initiative specifically says that it has to directly regulate your property. So your neighbor would have no claim for value. And that's why this is very reasonable in the way that it's applied because it has exceptions for all of those things. The instances that are cited sometimes are singulatory instances that don't happen often. The more -- the majority of the cases are when a developer comes and says, I would like to up zone my property and works with the city to negotiate that and then there would be, how the property owner has the right to do that.

Michael Grant:
All right. Senator Chuck Gray, appreciate the information. Ken Strobeck from the league, thank you for joining us as well.

Michael Grant:
Lots of people already do it, and if proposition 205 is approved more people would be doing it. We are talking about voting by mail. Proposition 205 would eliminate most polling places on Election Day. And send voters a ballot in the mail. We will talk about both sides on that issue, but first Mike Sauceda tells us more about proposition 205.

Mike Sauceda:
This is the way many people vote now, by marking a ballot at a polling place. But more and more of us are choosing to vote from the convenience of our home by mail. With ballots being sorted at facilities like this Maricopa County one in downtown Phoenix. Proposition 205, if approved by voters, would change Arizona to a vote by mail state. Each registered voters would automatically be sent a ballot not fewer than 15 days before the election along with a self addressed stamped envelope. Voters would have until close of Election Day to turn their ballot. People on the street seemed to like the idea.

Tanya Chesney:
I think that's a great idea as well. I mean, I would vote that way. My problem is getting to the polls. I always forget what day the election is. If I got it in the mail I would be more likely to vote.

Allen Poore:
It's a convenient issue. And any way there again to get people to vote, it's a good thing. So I'm in favor of it also.

Russ Lathem:
Personally, I think that for me, it would be much, I'm all for efficiency. It would be much better for my schedule. I'm usually pretty busy or at least I think I am. I like to make my own schedule. So for me, I think it's good. Does it open the door for fraud? Quite possibly.

Shena Gibson:
I have actually done the mail-in ballot myself and it wasn't too complicated. It didn't find it rocket science. I guess it depends on how -- how easy it is for people. If you live right by a poll and you can go down the street, walk down and vote and that's easy for you or if you don't have very much time to get to a poll, that's good. The mail thing is good. But I think it's not too much black and white. I think it's gray. It depends on people's perspective and where they are and things like that and why people aren't voting. I think that's another thing we need to really focus on is why weren't people going to the polls? Is it because it's a hassle or think don't care?

Mike Sauceda:
Prop 205 would also require the minimum number of polling places to be open on Election Day. Helen Purcell is Maricopa County controller.

Helen Purcell:
We would have the sites open for the period of time that you had the ballot that we mailed the ballot out to you and you had it in your hands. We would always have places open because people are going to need replacement ballots. People are going to make mistakes on their ballots and going to want those replaced so we want to give them every opportunity. And for a county the size of Maricopa County, with 1.5 million registered voters we would have to have, I think, 50 to 100 places for people to go around the county to make it fairly convenient for them.

Mike Sauceda:
Purcell says the process dealing with mail-in ballots is not new to the county and several Arizona cities already do all-mail elections.

Helen Purcell:
The process is similar to our early ballot process, where we send right now, you have to request a ballot and then we send you an early ballot, and you vote that ballot and return it to us. In the case of all mail ballots, you don't have to request. Every registered voter would be sent a ballot. And then they either choose to fill it out and return it or not. What we have discovered so far, in both the cities and towns that use it currently, is that it improves the voter turnout. Because you have more people, if they just got the ballot right there in their hand, go ahead and vote. So we would have to, of course, adjust for that as far as adjusting for the amount of time we would need to count the ballots. But there are a lot of other things that we are doing now that we wouldn't have to do. We wouldn't have to find 1,142 polling places. We wouldn't have to have the expense of having those polling places or the 7,000 workers we have on Election Day. That would not be required. We will have, let's say, 50 to 100 places around the county where people could go and drop off their ballots or get replacement ballots or whatever, other assistance they needed. So we would have that. But we would certainly not have the volume that we do now. And we estimate that it would probably save us an election cycle $1 million.

Mike Sauceda:
When you vote at the polls recent change tots law require you to show ID you don't have to do that when you vote by mail.

Helen Purcell:
Every single one that comes in we match that signature. And if there is, there is any difference that's discernible to us we make every attempt to get a hold of the people to make sure that, in fact, it is them. And in most cases, we find that possibly somebody has broken an arm, or they have had a stroke, or something like that, to change their signature a little bit. But your basic signature stays the same.

Mike Sauceda:
Purcell says voters could still vote on Election Day in a polling place. There would just be a lot fewer. She says the measure could increase voter turnout.

Helen Purcell:
We have looked at state of Oregon that had all-mail ballots for some time and they think that they can, that they have improved it by at least 20%.

Michael Grant:
Here now to talk about proposition 205 is its author, radio station owner, former Congressional Candidate Rick Murphy. Here to oppose the measure is Alan Korwin, a gun rights advocate who submitted a con comment to the voter guide. Rick, why is this a swell idea?

Rick Murphy: Well, first of all, thank you for having me. Proposition 205 is a very important proposition, I believe. It -- there's some confusion about it but initially, or actually, simply put, if you are registered to vote in Arizona, you will receive a ballot in the mail. If you are not at your residence or you moved, the postman will not forward it. Simply goes back to the county recorder's office. It increases turnout in a significant way. We have proof to that. We will hopefully discuss that very soon. It saves dollars for taxpayers and the state of Arizona. And virtually eliminates fraud as we can determine. There have been no convictions for voter mail fraud in Arizona, according to the Attorney General, Secretary of State in Oregon where they do it by 100%, have never had anybody they have convicted of mail voter fraud. Unlike some of the things we are getting ready to phase with the touch screen systems, the Diebold systems. I think this eliminated that problem. And it creates perfect paper trail.

Michael Grant:
All right. Alan, why is this a bad idea?

Alan Korwin:
This is the destruction of America Act. It's deceptively named the "Your Right to Vote" act by mail. But you already have the right to vote by mail. What this actually does is close almost all the polling places. That's so offends the American ideal that we would close polling places in the name of increasing participation. It's mind boggling. It increases the opportunity for fraud, gigantically. Instead of having an election process that's just an election process, we inject the postal service into the middle of it, and require them to store ballots, ship ballots; we encourage theft on the delivery and the exit of ballots. It's just a horrible idea. You won't even know when your ballot was delivered. You drop it in a box and I checked this, there's no way to find out if they got it.

Michael Grant:
Alan, I understand that some of your concerns about voter fraud and that kind of thing, but as you know, under our current vote by mail system, we are getting 50, 55%, and it's trending upward using this system anyway. So we're moving hundreds of thousands of ballots this way. Why is this a big deal?

Alan Korwin:
Closing polls is really the big deal. I just can't see a value in closing almost all the polls. This calls for an absolute minimum number of polls. We don't know how many that will be. The lines at the existing polls will be gigantic, and they won't be forwarding your ballot. Right now everybody gets a sample ballot. But there's no postage spent to send it back. That will double the costs in having to send these ballots back. And if you move, if you are one of the tens of thousands of people that have forwarding order you are disenfranchised. That is enough to swing the vote right there.

Michael Grant: Two issues there. Why don't you take up either one of them? One that increases the potential for voter fraud and, number two, you are shutting down too many polling places.

Rick Murphy:
Like I say before, there's no evidence of any voter fraud in vote by mail. The Attorney General of Arizona has said so. He knows of none. The secretary, five secretaries of state in the past in Oregon have come up with none. We voted a level of 60% in Maricopa County right now with vote by mail. And there are no issues; there are no problems at all. Closing the polling places, I purposely wrote or had my attorneys write the proposition such a way that it's left up to the secretary of state and the county recorders to determine how many polling places are going to be required to handle the loads. In Oregon, they have been doing this since 1998. Most of the polling placers virtually empty. They're collecting dust and cobwebs.

Michael Grant:
Rick, one of the concerns they've heard expressed on this is that there is a certain ceremony, a certain tradition, a certain civic spirit-mindedness that goes with actively traveling to the polls. And sometimes ceremony is important. I mean, it's the way we express our customs and those kinds of things. And you know, if just leaving it in your mailbox just not quite the same thing. Is that a problem?

Rick Murphy:
I don't think so. I don't think there's anything more patriotic than sitting around the dining table with your children, your family, and discussing the issues and preparing the ballot. And having the time there with no time pressure on you, to fill the ballot out, call the candidate if you want to, do your research, google, however you would normally research, call your friends and family and sit there and actually fill out the ballot. I think that's more patriotic than going to a private booth somewhere, where you are rushed through the line.

Michael Grant:
Alan, it is a good point. Can you get more contemplative vote if you can take some time with it?

Alan Korwin:
You have all the time to vote whether you are forced to vote by mail or you are allowed to go to a poll. By denying the ability to go to a local precinct poll you haven't increased the time. It's the reverse effect. Because if you vote early by the time Election Day arrives, your candidate might be dead. Might be under indictment. Might be in prison. And you can't change your vote. You can't find out something at the last minute and make a change and going with your neighbors to the poll in the traditional American way, rise up, and elect a leader. We are taking that away.

Michael Grant:
Well, listen on that positive note, Alan Corwin, thank you very much for joining us. Rick Murphy, our thanks to you as well.

Alan Korwin:
Rick Murphy: My pleasure.

Michael Grant:
If you would like to see a transcript of tonight's show or get information about some upcoming topics, you can visit the website. You will find that at www.azpbs.org. Once you get to the home page, click on the word "Horizon" and you can find more details.

Merry Lucero:
Politics heat up. A new national poll showed U.S. Senate contender John Pederson. And Len Munsil's campaign calls for an investigation into Governor Janet Napolitano's re-election campaign. The journalist roundtable Friday at 7:00 on Horizon.

Michael Grant:
Those subjects and probably more tomorrow on Friday's edition of Horizon. Thank you very much for joining us on this Thursday evening. I'm Michael Grant. Have a great one. Good night.