Dave Hodges

More About: Eminent Domain

The Mayoral Political Career Preservation Act Requires a No Vote on Proposition 207

A man's home is his castle until some city official can be convinced that your land would prove more valuable to their political career if ownership of your property could be reassigned to a private developer. Proposition 207 attempts to reverse this trend of eminent domain abuse which is presently sweeping the country.

Both American and Arizona property owners breathed a collective sigh of eminent domain relief when, in the landmark eminent domain case of Bailey v. Myers, 76 P3d 898 (2003), the Arizona Court of Appeals rejected an eminent domain action by the City of Mesa which would have seized a privately owned brake shop and transferred it to a private developer for the express purpose of constructing hardware store in an action supported by the Mesa (AZ) City Council. Americans cheered nationwide as the Bailey case was featured on 60 Minutes with the announcement that Bailey had prevailed in the Supreme Court and was allowed to retain ownership over his land. It was believed that the property rights of Americans, everywhere, were protected. Unfortunately, this was not to prove to be the case.

Kelo v. City of New London, 545 U.S. 469 (2005), constituted a landmark eminent domain case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner in order to further economic development of the City of New London, CT. The case arose from the condemnation by a privately owned property so that the property could be used as part of a comprehensive redevelopment plan which bordered a lake. In a widely criticized decision, the Supreme Court held in a 5-4 decision that if a community enjoyed economic growth, through the transfer of property ownership, from private citizens to a private developer, that such redevelopment plans would be permissible "public use" under the Takings Clause of the Fifth Amendment. Simply put, the Supreme Court rendered every piece of privately owned property, in the United States, to be forfeited pending an eminent domain action by a local municipality if such action increased the tax base of a municipality.

If your municipality decides that your home would provide more income if it can be replaced with a retail outlet, then you and your family could soon be packing your bags. If your city council decides that your acreage would provide greater tax revenues from subdividing your land, in order to build an apartment building, then you better start collecting your moving crates. Further, if the mayor of your city decides that your entire neighborhood would prove more beneficial to him/her, as a shopping center, perhaps you and your neighbors would be eligible for a group-rate moving discount.

In Arizona, the present eminent domain law allows for local government to exercise seizure of private properties when there is a legitimate interest on behalf of the community. Under Proposition 207, this will not change. If government decides that your land should be the site of a waste water treatment plant or a new highway, your land can be seized even after the passage of Proposition 207. Proposition 207 merely prevents the transfer of private property to a private developer and the officials of the cities and towns in Arizona are hopping mad about this proposition.

The Arizona League of Cities and Towns attempted to keep voters from having a voice on the issue by filing a lawsuit to keep it off the ballot. Yuma 's Larry Nelson, Glendale mayor, Elaine Scruggs, and Peoria's mayor, John Keegan, were just a few of several mayors from around the state who were supportive of the lawsuit. These mayors argue that their ability to effectively manage their city's growth will be impaired with the passage of Proposition 207 because they will be prevented from seizing private property for public use (e.g., roads, sewers, etc.). This is just not true. Again, Proposition 207 does not impair the taking of private land to support a public use project. Seeing through untruths underlying their legal action, the appellate judge allowed Proposition 207 to remain on the ballot.

In a growing plethora of excuses resembling President Bush's rationalizations for starting and continuing the Iraq War, the mayors of Arizona seemingly have an unending stream of excuses on why the voters should vote against Proposition 207 and all of them are bold faced lies.

Failing in their legal efforts designed to keep Arizona voters from deciding on the preservation of private property rights, the mayors have resorted to the media in order to repeat the same false mantra. An examination of the real reason that the mayors do not want the citizens to decide the issue of property rights reveals a long list of eminent domain abuses from which private developers are using their influence with city officials to transfer the ownership of private property to themselves. Consider the following examples in which local government attempted to seize private property and give it to their private developer friends:

1. The City of Tempe filed an eminent domain action in order to seize the home of Kenneth and Mary Ann Pillow in order to transfer their private property to a private developer who planned to build a series of upscale townhomes.

2. The City of Chandler filed an eminent domain action against the owners of a privately owned fast food restaurant in order to replace the fast-food restaurant with upscale dining and retail outlets.

3. The City of Tempe sought to condemn private property in an industrial park in order to make way for an enormous retail shopping mall. Presiding Judge Kenneth Fields wrote that "The property will be used for private commercial use, a retail shopping complex. The private parties owning the property ultimately will use it for private profit purposes… The private developer Miravista Holdings and its principals are the driving forces behind this project not the Plaintiff, City of Tempe." Despite the fact that Tempe claimed that it needed to condemn the land in order to address some environmental conditions present in the redevelopment area, Judge Fields saw through the City's eminent domain excuses, recognizing them as a pretext to make a private-to-private land transfer and denied the seizure.

4. In February of 2003, Princeton Resorts Group began working on the 20-acre Cibola Vista Resort & Spa. The projected build-out of the property is planned to consist of 240 timeshare units, 100 hotel rooms and several recreational amenities, expected to be completed in 2010. The Cibola Vista resort needed a new road into the subdivision, and to build it they tried to force an elderly couple, Dana and Franklin Haught, out of their home, dubbed the "Cactus Patch Ranch". The developer threatened to use their power and influence with the City of Peoria and Mayor John Keegan, to enact eminent domain proceedings against Haught property. When the couple refused to move, the City of Peoria enacted condemnation proceedings against the Cactus Patch Ranch. The Haught's had lived on their little 3½-acre ranch there for 40 years, raising cacti and enjoying their lives. After initially fighting the City of Peoria, and with Franklin declining in health, the couple acquiesced to the eminent domain threats from the Keegan-led city government, and the City of Peoria and Cibola Vista reached an "agreement" with the elderly couple. Subsequently, the City of Peoria dropped the condemnation action it filed to acquire right-of-way necessary for construction of Pinnacle Vista Drive. In a gross underpayment, the city and the resort collectively paid Franklin and Dana Haught $450,000 for their entire 3.5-acre parcel and home, located north of Jomax Road on the eastside of Lake Pleasant Road. Franklin passed away shortly after being relocated and Dana now resides in Surprise.

5. If you lease a strip mall, you may lose control over who leases your pads and for how long. Pinal County Superior Court Judge William J. O'Neil decreed that the owners of a strip mall must renew the lease of their tenant Peoria Justice Court for another two years over the objections of the landlord. The court's lease had expired in July and since it would be moved to a new location in eighteen months the county only wanted the space for two years. The owners held out for a five year lease, saying a dance studio had already agreed to a five year term. Mike Freret, Vice President of Development for Orsett/Columbia Ltd. said; "What the lower court said via these actions was that municipalities can create new contracts where none existed before. Further, Freret stated that "This means municipalities can identify a space they want and force a landlord to lease it to them," Freret also stated. "It may mean that if the space they want already has a business owner in it, they could boot them out." By any name, this is abusive eminent domain. It should be noted that because of term limitations, John Keegan must vacate his Peoria mayoral position. He is, however, running for the Justice of the Peace in Peoria. The private property owners of Peoria may want to carefully consider their choice for the Justice of the Peace. Please note that Proposition 207 would also protect private property owners against abusive judges like O'Neil.

Politicians have two built in motives in wanting to deprive private citizens of their property rights. In a one hand washes the other hand approach, politicians love to seize your land and then resell it at bargain basement prices to one of their private, campaign-contributing developers. In the Kelo case, New London CT. sold the condemned land to a private developer for the sum of $1. The second motive resembles a reverse Robin Hood approach. By taking homes from the poor and the middle-income and giving them to their rich friends, politicians have effectively increased tax revenues without having to increase taxes. This looks very good at election time, provided the stories of this land grab abuse are not fully disclosed.

A recent poll showed that Proposition 207 enjoyed a 55% to 45% margin among likely voters. Failing to convince the public that the cities would fall apart if Proposition 207 passed, this group of mayors has resorted to putting on the full court press and utilizing the vast resources and reach of the Arizona Republic. In effect, mayors like Keegan have recently stated that if Proposition 207 passes, the Arizona's military bases will close because local governments will not be able to protect these bases from encroachment. This is another fear tactic that it is not based on fact.

In 2005, the Arizona Legislature passed ARS 28-8481 which retroactively rezoned private property in the "proximity" of a military installation in order to curtail any chance of growth. The mayors, no strangers to the world of fabrication, falsely state that the owners of the lands that were damaged and uncompensated through the passage of ARS 28-8481 would now be able to sue for compensation under the provisions of Proposition 207. The mayors allege that this new rash of law suits would lead to the closure of our military bases by the Base Realignment and Closure Commission (BRAC) of the Pentagon. This is just not true! These mayors are lying to the Arizona voters and the Arizona Republic is a knowing and willing accomplice in these lies for not checking out the voracity of the facts before giving these lies such a prominent position in their newspaper. First, Proposition 207 is not an ex post facto act. Therefore, ARS 28-8481 is not reviewable by any court as a result of the passage of this proposition. Proposition 207 clearly grandfathers in all preexisting zoning laws.

In order to demonstrate the depth of these mayoral fabrications, let's briefly examine two federal laws and a quote from a senior Pentagon official in charge of base closures. Federal Law, specifically known as Public Law 101-510 (The law governing BRAC and the closure of military bases), clearly indicates that the Department of Defense "WILL NOT CONSIDER ANY PENDING LEGISLATION OR PROMISES OF LEGISLATION, LAND CONVERSIONS (author's note: ARS 28-8481), ETC, WHEN LOOKING AT INDIVIDUAL BASES FOR CLOSURE OR REALIGNMENT". It is very apparent that the Department of Defense wishes to judge the bases on their individual merits and faults, not the rezoning efforts of towns and cities in which private citizens are victimized. Clearly, ARS 28-8481 could have no affect on BRAC decisions regarding the status of Arizona's military bases. Therefore, Proposition 207 cannot have any effect on the fate of these same bases. Further, Raymond Dubois, chief architect for BRAC from the Pentagon states "If States think they can lobby BRAC and keep their bases open, they are wasting their money." Another federal law further exposes this blatant lie being told by Arizona's mayors to the voters of Arizona. United States Code Title 10, Subtitle A, Part 4, Chapter 159, sections 2672a and 2676 deals with acquisitions of real property. 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." The law clearly states that the Pentagon and Department of Defense will be the lone decision maker as it relates to protecting military bases from threats like residential encroachment. This law does NOT allow for the State of Arizona to rezone land in and around a military base in order to preserve the status of the base in the eyes of BRAC and the Pentagon. Section 2684a specifically mentions that the federal government has the sole power to deal with the subject of encroachments near military bases.

Despite the overwhelming body of legal evidence which refutes the claims by Arizona's mayors that our bases will be imperiled if Proposition 207 passes, it has not stopped the onslaught of lies to the voting public. John Keegan, Mayor of Peoria and co-chair of the Luke West Valley Council, stated that "This proposition would halt local governments' efforts to protect military bases in Arizona. It would strangle the largest employer in Arizona, the Department of Defense ..." ARS 28-8481 sponsor, Representative John Nelson (R-Glendale) falsely states that "Encroachment is particularly dangerous to Luke, Davis-Monthan Air Force Base in Tucson, the Yuma Marine Corps Air Station and Fort Huachuca near Sierra Vista." Nelson added, "The fear is that the proposition, which will appear on the Nov. 7 general election ballot, will weaken local zoning requirements enacted by the Legislature to protect the bases." Can't Nelson and Keegan read English? Or do they just believe that the ignorance of the voting public will allow them to continue to get away with lying to the voters? Again, Proposition 207 grandfathers in past zoning legislation. As Mark Twain said, "lies and damn lies".

In reality, what Proposition 207 does is to force government officials to level the playing field by allowing private property owners to received legal funds from which to fight the unlimited resources of Arizona's municipalities. It also prevents regulatory takings without just compensation.

Now there are allegations that the cities are improperly using their manpower and resources to fight the passage of Proposition 207 on city time. The sponsors of Proposition 207 have filed a FOIA to obtain the email records of the varous municipalities to check to see if they are violating state and federal election laws. The cities have stated that they are refusing to cooperate with the FOIA request. And you are still voting for these incumbents?

According to the Arizona Secretary of State web site, the Arizona Farm Bureau also supports the measure. "It ... sets up more clarity and process so that slum clearance is truly warranted, rather than an effort masquerading as an attempt to "upgrade" private property from one private hand to another ...". Further, the Arizona Cattlemen's Association is also in support of Proposition 207. They "stated that the protection of property rights is fundamental to the preservation of civil liberties and that if people use their property wisely and beneficially, they must be able to trust that the government and judicial system will protect their rights."

Eminent domain and government regulatory powers have long been abused. Proposition 207 is an answer to that, and that is why municipal officials don't want to give voters the chance to approve this matter — it limits their power. It prevents them from using the "public good" as a smokescreen to advance their political agendas which frequently adds money to their political coffers at the expense of private property owners which the politicians purport to serve. And you are still voting for your incumbent mayor?

The defeat of Proposition 207 could be labeled a victory for "The Mayoral Political Career Preservation Act." Stop these mayors and legislators like John Keegan and John Nelson from advancing their political careers on the backs of Arizona's private property owners.

On November 7th, I urge Arizona's property owners to obtain, free of charge, the best homeowners insurance available, a yes vote on Proposition 207.

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