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More About: Eminent Domain

Prop 207 is about Freedom and Common Sense

With the Kelo v. New London Supreme Court decision of last summer so freshly in the minds of Americans, propositions are popping up all over the United States, including Arizona, to clamp down on the power of eminent domain.

Eminent domain is the power given to government to take private property. America, though, is and has always been about private property rights without which freedom does not exist. According to the U.S. and Arizona constitutions, eminent domain is only to be exercised for public use such as to create roads, schools, fire stations, and other government facilities. Eminent domain is not to be used to take private land and give it to other private owners.

Sadly, local governments across Arizona often have abused this power, condemning people's homes and businesses to give those properties to influential and "connected" developers. In 2003, Arizonans won an important victory in the fight over eminent domain when the Arizona Court of Appeals ruled unanimously that the city of Mesa could not take Randy Bailey's brake shop and give it to a developer who planned to replace Bailey's shop with a hardware store.

However, the U.S. Supreme Court ruled in the Kelo decision that government could take private property and turn it over to another private entity in the name of "redevelopment," a fancy term that cloaks a sordid practice of taking an individual's home, church, or business and give it to new owners that a city thinks will generate more tax revenue.

The only silver lining in the Kelo decision is language suggesting that states can enact limitations on eminent domain. Proposition 207 is Arizona's response to the Kelo decision. If passed by Arizona citizens on November 7, Prop 207 would strengthen Arizona's limits of prohibiting takings for private use. Also, Prop 207 would ensure that cities cannot condemn whole neighborhoods for blighted conditions existing on individual properties.

As important as these reforms are, Prop 207 also contains a bonus. It has provisions that would give citizens a chance to obtain just compensation when their property values are destroyed through future regulatory takings. A regulatory taking occurs when government reduces the value of a property by enacting a land-use change that deprives a property owner of uses that were legal at the time of purchase.

Imagine a person buys a piece of property, knowing that current zoning laws allow him to subdivide and build a second house. If government steps in, after the fact, and declares that the owner is no longer allowed to subdivide, he may lose a substantial portion of his investment. While adjacent parcels of land are appreciating in value, his land value may drop. Under current case law, that property owner is out of luck. Under Prop 207, that property owner will have a chance to make the case that he is owed compensation. If government's land-use change is really going to benefit the public, then the public should compensate the property owner for his loss.

Prop 207 has a very reasonable approach to compensating owners for the damage of regulatory takings. It is prospective, not retroactive, making it a huge improvement over Oregon's Measure 37, which was retroactive and therefore generated a great deal of litigation.

Prop 207 also only applies to the direct regulation of an owner's property, and it contains important exemptions that allow government to continue to regulate in the interests of health and safety.

Ultimately, Proposition 207 is about limiting government power as its passage strengthens the position of private property owners against the overwhelming force of government. By stopping the abuse of the awesome power of eminent domain, and by putting limits on regulatory takings, Prop 207 will be a major victory for freedom and common sense.

Mr. Ricardo Valenzuela, advisor to recently elected president of Mexico, Felipe Calderon, president of Liberty Americas Foundation in Tucson, and former rancher, banker, and editorial writer, will be the featured guest at The Freedom Library Annual Education Forum November 2 at 7 PM at the Booth Machinery conference hall located at Araby road and 30th Street. His topic, "The Future of Freedom in Mexico and Its Impact on Arizona and the United States" is a very timely one.

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