IPFS Dave Hodges

More About: Eminent Domain

Saving Luke Air Force Base: Change Your Leaders, Change Your Life (Part Two)

Mr. Robb's Arizona Republic editorial article “No White Hats…” (8/22/08 Valley and State) is a breath of fresh air. Finally, someone from the Arizona Republic is finally telling both sides of the story related to Luke Air Force Base and the encroachment issue.  
Mr. Robb’s assertion that it is not fair to shoulder the financial responsibility for saving Luke onto a small group of private citizens, captures the essence of everything that is unfair about the dynamics related to saving Luke.   


I agree with the Arizona Republic in that Luke Air Force Base desperately needs to be preserved. My reasons for wanting to preserve Luke stem from a deep sense of patriotism and a desire to not damage the Valley’s economy due to the potential loss of Luke. Attorney General, Terry Goddard, wants to save Luke as well, but not for the same reasons that I do. His reasons seemingly come from a self-serving desire to champion a false flag cause from which he, and certain West side mayors, can only falsely claim that they saved Luke.


Despite living 20 miles from Luke and eight miles from AUX 1, our subdivision was retroactively placed in the "Accident Potential Zone." Our property ownership predated the state's anti-encroachment law (ARS 28-8481). The passage of the law constituted an ex post fact law which is unconstitutional. Further, my development was constructed with the written permission of the former base commander, General Breedlove. My community poses absolutely no threat to the operation and ultimate survival of Luke as evidenced by the fact that the base was spared the in the last round of 2005 base closings with my subdivision completely in place. It is curious as to why my neighborhood suddenly poses such a grave threat to Luke after years of peaceful coexistence. It easy for my fellow bloggers to wave the flag and yell "protect the base at all costs."  However, if the first casualty of saving Luke is the forfeiture of the United States Constitution, and the political and economic subjugation of an entire community, then we have all lost a lot more than an Air Force base.  


The Republic’s editorial, "Give Space to Base” (August 17, Section V-4) misrepresented the ultimate fiscal responsibility of ARS 28-8481 in compensating affected property owners located in the vicinity of a military installation. ARS 28-8481 is a State law and therefore, the state is responsible for all compensation, not Maricopa County. The Republic’s editorial "Give Space to the Base" omitted two very important facts. ARS 28-8481 allows for one house per acre in the accident potential zone as well as protecting existing homeowners with a grandfather clause. Subsequently, when the County issued permits, they were following the law as written and Attorney General Goddard knows it. This explains why Goddard has taken to the media in order to make his case in the court of public opinion because he will not win in a court of law. Second and most disturbingly, the law also permits industrial encroachment in the Accident Potential Zone next to the base. Every Valley resident needs to ask themselves “what is the difference between a factory on 10 acres employing a 100 people and a one acre single family home?” Both pose a threat to the base, due to encroachment, and both are at risk from an errant ejection of an F-16 pilot. If the Department of Defense ever closes Luke, due to encroachment they will not care if the encroachment is due to residential or industrial interests.


The August 17th Republic editorial noted that the West Valley Mayors are outraged because of the residential encroachment near the base. Their outrage is not due to the fact that they care deeply about preserving Luke. Rather, they care more for their future industrial tax base in which large factories can be constructed right up to the main gate of the base. This is why Glendale voted to donate $30,000 to the State’s legal fund because it is a good investment in the future of their industrial tax base, their Westmarc created Enterprise Zones and to the employment opportunities afforded by these future ventures.  And what does Terry Goddard get from this grandstanding in the media? He gets the support from the West Valley Mayors which he requires in order to capture the Governor's office in 2010.


Despite the illegality of the law, I support Luke and am more than willing to perform my patriotic duty by subjecting myself to eminent domain proceedings.  I have offered to meet with Goddard to discuss the terms of my departure. He refuses to answer my phone calls, emails and letters presumably because he is too busy covertly running for Governor.


In order for my community to do its patriotic duty and move, we would require financial assistance which is provided for under ARS 28-8481. Unfortunately, for the future of Luke, the Governor misappropriated the very monies the Legislature designated to compensate homeowners and placed the funds in the State General Fund in violation of ARS 35-143 in an attempt to balance the state’s budget. I have asked, in writing, for Terry Goddard to offer a legal opinion on the Governor's misappropriation of compensation funds in a recent round of fund sweeps. The Governor, in misappropriating the compensations monies from the Military Installation Fund, has deprived the rightful recipients their just due as prescribed by law. In fact, the governor's fund sweep violates ARS 35.143. Yet, Goddard refuses to make a ruling. In short, the State of Arizona is engaging in a takings without offering ANY compensation. I honestly do not know if I am living closer to Communist China or Communist Cuba. At least when Venezuelan dictator, Hugo Chavez seized the lands of the large land holding families and gave it to his oil company political cronies, he paid the farmers the farmers for their land. The State's actions constitute an outright public theft of private property.    

Without proper compensation for the loss of property rights, I can almost guarantee that many of my neighbors will sue the State and win. This will no doubt damage Luke’s chances of remaining open. You can thank the Governor for this and while we are handing out demerits, Terry Goddard could have left well enough alone, let sleeping dogs lie and Luke would have continue to survive as it did in the 2005  round of base closings.


To those of you that will continue to say we should save Luke at any cost, consider that nothing the State does can save Luke. You see, the Attorney General is hoping that Valley residents do not know about two Federal laws which apply to protecting military bases from being closed to encroachment. First, Public Law 101-510 as amended 10 U.S.C., 2687 (The law governing B.R.A.C.),  clearly states that the Department of Defense will not consider any pending legislation or promises of legislation, land conversions (ie zoning, etc, when looking at individual bases for closure or realignment. It is very apparent that the D.O.D. wishes to judge the bases on their individual merits and faults.  


U.S.C. Title 10> subtitle A> Part 4> Chapter 159> sections 2672a and 2676 deals with acquisitions of  real property in order to protect a base from encroachment. These sections indicate that it is the duty of Congress, the Secretary of  Defense and the Secretary or the Air Force to determine and act on matters to “maintain the operational integrity of a military installation” NOT the State of Arizona. Section 2684a Deals with “Agreements to limit encroachments”. Essentially, the Secretary of Defense or Secretary of a military department may enter an agreement to limit encroachment or other constraints on military operations and states that the acquisition costs will be shared. We would like to see Arizona’s agreement with the Department of Defense. OF COURSE, IT DOES NOT EXIST. THE STATE IS ACTING ON ITS OWN AUTHORITY IN VIOLATION OF FEDERAL LAW.


There can be no other conclusion that Terry Goddard and the West Valley Mayors are engaging in a false flag operation in pretending to save Luke when they are actually powerless to save the base. The State of Arizona could burn my house down, bury the bodies, yet Luke's future will not be impacted either way.  


It is shameless that Westmarc and Terry Goddard are attempting to better their respective positions on the back of Luke Air Force Base. Therefore, I would encourage Valley residents to pressure Terry Goddard to order the Governor to replace the compensation funds, condemn our land, compensate the property owners at fair market value and finally get the members of our community to move so we can get on with the business of saving Luke. Or does the entire State think that the present Chinese and Cuban model for property rights is preferable to the United States Constitution and the Fifth Amendment ?


I am ready to don my white hat and do my part for Luke as I stand willing to be bought out and move to a location where Westmarc and Goddard cannot touch me. .


Is Westmarc (i.e., Surprise, Glendale, El Mirage, Peoria, etc) willing to do their part to save Luke and stop insisting on future industrial development in the crash zones which seriously threaten Luke's future and forgo their economic stake in industrial expansion next to the base?


If Goddard is successful in stealing our properties, do the people of Arizona think that we will just lie down and take the beating? We will sue and we will publicize our fate with a vengeance. Consider that if and when we sue, a portion of our law suits will be covered under Proposition 207 which states that the governmental entity involved must cover the legal expenses of both sides, win or lose. What will that do the economic coffers of the State when they are deluged with five hundred Prop 207 law suits which are staggered and cannot possibly be enjoined? Mr. Robb's assertion that we do not have a 207 case because of the health and safety exception does not stand up to scrutiny. The fact that the farmers around Luke can sell their land to industrial interest represents the highest use of their land. When the value of our properties are zoned to nothing, the State has created a 14th Amendment equal protection clause exception which is wholly unconstitutional on its face. Also, ask yourself, would a reasonable judge believe that a factory of 100 people on 10 acres are any more safe from crashing F-16, under the law, than a family of four in a single family, one acre house? On this point, in an otherwise good piece of journalism, Mr. Robb, respectfully, is in error.  


The military hates controversy with its civilian neighbors. If we are forced to sue and involve the DOD, the Air Force and the Federal Judiciary, how can this be helpful to Luke? My community has gone to great lengths to avoid doing anything to harm Luke because we believe in the mission of the base. The State is already suing the County. The County is suing the State and Luke officials are no doubt hiding under their collective desks in the hope that the Pentagon does not notice. What will happen if my community is forced to act in the interest of self-preservation? Luke survived the last round of base closings with my community in place. Will Luke be so lucky to survive the resulting, Goddard-created controversy the next time BRAC decides Luke’s fate?


My community has offered to negotiate with the powers-that-be behind closed doors. Instead our offers have been ignored and we have been publicly ridiculed. Any reader who cares as about Luke’s future has both the duty and the power to force or local politicians to sit down with us and negotiate, or, you can remove them from political office. There are a few people in my community who already advocating, “if the politicians won’t negotiate, we will agitate.” If Goddard and Westmarc do not change course, we will no doubt see these numbers rise. I am imploring the general public to join us and seek a solution that will not endanger Luke. Taking our properties is not the answer. Closed door negotiations, with a goal of win-win, are the only way to go. However, we are dealing with massive political egos who do not think that they have to listen to John Q. Public. They seemingly only understand power. However, the voting public has the ultimate power. Call your mayor and the Attorney General and insist that they negotiate with our community while we still have time to save Luke.


Ultimately, I want to hold hands with Terry, Elaine, Lynn et al and save Luke Air Force Base. But the 9 billion dollar question is, “will they do their part for their city, their state and the nation?”


Will Terry Goddard give up his political capital by resisting the temptation to champion a false flag operation by deceptively claiming to save Luke, while allowing industrial encroachment in order to help his Westmarc cronies happy in exchange for their support in his run at the governorship? 


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1 Comments in Response to

Comment by Dennis Dodgen
Entered on:

I agree with your editorial and my wife and I purchased our home in early 2004 under the caveat that we would endure the noise of the
AF jets. No problem, never complained. In late 2004 the state added the APZ designation... no problem, no complaint. Now I have a complaint. The new County moratorium has literally stolen my home and land rights. I cannot secure a permit to do anything. Even if my home burns down, I cannot replace. Our home was built legally, approved legally and we have improved it legally. If the State or County wants it...fine...buy it but do not hang us out to dry with this legal excuse of sitting on the fence. According to the State AG complaints map our home is "grandfathered". How can the county take away that grandfather clause without litigation and compensation? YOU WANT IT GODDARD OR WILSON... I will sell it to you for market value. Just contact me.

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