an
initiative measure
AMENDING
Title 12, Chapter 8,
Be it enacted by the People
of the State of
Section 1. Short
title
This act may be cited as the “Private Property
Rights Protection Act”.
Sec. 2. Findings and declarations
A. The people of
1.
Article 2, section 17 of our State Constitution declares in no uncertain terms
that private property shall not be taken for private use.
2.
Our Constitution further provides that no person shall be deprived of property
without due process of law.
3.
Finally, our Constitution does not permit property to be taken or damaged
without just compensation having first been made.
4.
Notwithstanding these clear constitutional rights, the state and municipal
governments of
(a)
A recent United States Supreme Court ruling, Kelo v.
City of
(b)
The City of
(c)
The City of
(d)
The City of
(e)
The City of
(f)
In the wake of the Kelo ruling, the City of
(g)
The City of
(h)
Courts have also allowed state and local governments to impose significant
prohibitions and restrictions on the use of private property without
compensating the owner for the economic loss of value to that property.
5. For
home owners in designated slum or blighted areas, the compensation received
when a primary residence is seized is not truly just as required by our state
constitution.
6.
Furthermore, even when property is taken for a valid public use, the judicial
processes available to property owners to obtain just compensation are
burdensome, costly and unfair.
B.
Having made the above findings, the people of
Sec. 3.
Title 12, chapter 8, Arizona Revised Statutes, is amended by adding article
2.1, to read:
Article 2.1. Private
Property Rights Protection Act
12-1131. Property may be taken only for public use consistent
with this article
Eminent domain
may be exercised only if the use of eminent domain is authorized by this state,
whether by statute or otherwise, and for a public use as defined by this
article.
12-1132. Burden
of proof
A. In all eminent domain actions the judiciary
shall comply with the state Constitution’s mandate that Whenever an attempt is
made to take private property for a use alleged to be public, the question
whether the contemplated use be really public shall be a judicial question, and
determined as such without regard to any legislative assertion that the use is
public.
B. In any eminent domain action for the purpose of
slum clearance and redevelopment, thIS state or a political subdivision of this
state shall establish by clear and convincing evidence that each parcel is
necessary to eliminate a direct threat to public health or safety caused by the
property in its current condition, including the removal of structures that are
beyond repair or unfit for human habitation or use, OR to acquire abandoned
property and that no reasonable alternative to condemnation exists.
12-1133.
just compensation; slum clearance and
redevelopment
IN ANY EMINENT DOMAIN ACTION for the purpose of slum clearance and redevelopment, If private
property consisting of an individual’s principal residence is taken, the occupants
shall be provided a comparable replacement dwelling that is decent, safe, and
sanitary as defined in the state and federal relocation laws, section 11-961 et
seq. and 42 uSC 4601 Et Seq., and the regulations promulgated thereunder. At the owner’s election, if monetary
compensation is desired in lieu of a replacement dwelling, the amount of just compensation
that is made and determined for that taking shall not be less than the sum of
money that would be necessary to purchase a comparable replacement dwelling
that is decent, safe, and sanitary as defined in the state and federal
relocation laws and regulations.
12-1134. Diminution
in value; just compensation
A. If THE existing rightS to use, divide, sell or
possess private real property ARE reduced by the ENACTMENT OR APPLICABILITY OF
aNY land use law enacted AFTER THE DATE THE PROPERTY IS TRANSFERRED TO
THE OWNER and such action reduces the
fair market value of the property THE OWNER is entitled to just compensation FROM THIS STATE OR THE POLITICAL
SUBDIVISION OF THIS STATE THAT ENACTED THE LAND USE LAW.
b. This section does not apply to land use laws that:
1. Limit or prohibit a use or division of real
property for the protection of the public’s health and safety, including rules
and regulations relating to fire and building codes, health and sanitation,
transportation or traffic control, solid or hazardous waste, and pollution
control;
2. Limit or prohibit the use or division of real
property commonly and historically recognized as a public nuisance under common
law;
3. Are required by federal law;
4. Limit or prohibit the use or division of a
property for the purpose of housing sex offenders, selling illegal drugs, liquor
control, or Pornography, obscenity, nude or topless dancing, and other adult
oriented businesses if the land use laws are consistent with the constitutions
of this state and the United States;
5. Establish locations for utility facilities;
6. do not directly regulate an owner’s land; OR
7. WEre enacted before the effective date of this
section.
C. This state or the political subdivision of
this state that enacted the land use law has the burden of demonstrating that
the land use law is exempt pursuant to subsection b.
D. the owner shall not be required to first submit a
land use application to remove, modify, vary or otherwise alter the application
of the land use law to the owner’s
E. If a land use law continues to apply to
private real property more than ninety days after the owner of the property
makes a written demand IN A SPECIFIC AMOUNT for just compensation to this state
or the political subdivision of this state that enacted the land use law, the
owner has a cause of action for just compensation in a court in the county in
which the property is located, unless THIS STATE OR POLITICAL
SUBDIVISION OF THIS STATE AND THE OWNER REACH AN AGREEMENT ON THE AMOUNT OF
JUST COMPENSATION TO BE PAID, OR UNLESS THIS STATE OR POLITICAL SUBDIVISION OF
THIS STATE AMENDS, REPEALS, OR ISSUES TO THE LANDOWNER A BINDING WAIVER OF
ENFORCEMENT OF THE LAND USE LAW ON THE OWNER’S SPECIFIC PARCEL.
F. Any demand for landowner relief or any waiver
that is granted in lieu of compensation runs with the land.
G. AN
ACTION FOR JUST COMPENSATION BASED ON DIMINUTION IN VALUE MUST BE MADE OR
FOREVER BARRED WITHIN THREE YEARS OF THE EFFECTIVE DATE OF THE LAND USE LAW, OR
OF THE FIRST DATE THE REDUCTION OF THE EXISTING RIGHTS TO USE, DIVIDE, SELL OR
POSSESS PROPERTY APPLIES TO THE OWNER’S PARCEL, WHICHEVER IS LATER.
H. The remedy created by this section is in
addition to any other remedy that is provided by the laws and constitution of
this state or the United States and is not intended to modify or replace any
other remedy.
I. NOTHING IN This
section prohibitS this state or any political subdivision of this state from
reaching an agreement with a private property owner TO WAIVE A CLAIM FOR
DIMINUTION IN VALUE regardING any proposed action by this state or a political
subdivision of this state or action requested by the property owner.
12-1135.
Attorney fees and costs
A. A property owner is not liable to this state
or any political subdivision of this state for attorney fees or costs in any
eminent domain action or in any action for diminution in value.
B. A property owner shall be awarded reasonable
attorney fees, costs and expenses in every eminent domain action in which the
taking is found to be not for a public use.
C. In any eminent domain action for the purpose
of slum clearance and redevelopment, a property owner shall be awarded
reasonable attorney fees in every case in which the final amount offered by the
municipality was less than the amount ascertained by a jury or the court if a
jury is waived by the property owner.
D. A prevailing plaintiff in an action for just
compensation that is based on diminution in value pursuant to section 12-1134 may
be awarded costs, expenses and reasonable attorney fees.
12-1136.
Definitions
In this article, unless the context otherwise
requires:
1. “Fair
market value” means the most likely price estimated in terms of money which the
land would bring if exposed for sale in the open market, with reasonable time
allowed in which to find a purchaser, buying with knowledge of all the uses and
purposes to which it is adapted and for which it is capable.
2. “Just
compensation” For purposes of an action for diminution in value means the sum
of money that is equal to the reduction in fair market value of the property
resulting from the enactment of the land use law as of the date of enactment of
the land use law.
3. “Land use law” means any statute, rule,
ordinance, resolution or law enacted by this state or a political subdivision
of this state that regulates the use or division of land or any interest in
land or that regulates accepted farming OR forestRY practices.
4. “Owner”
means the holder of fee title to the subject real property.
5.
“Public use”:
(a) Means any
of the following:
(i) The possession,
occupation, and enjoyment of the land by the general public, or by public
agencies;
(ii)
The use of land for the creation or
functioning of utilities;
(iii)
The acquisition of property to eliminate
a direct threat to public health or safety caused by the property in its
current condition, including the removal of a structure that is beyond repair
or unfit for human habitation or use; OR
(iv)
The acquisition of abandoned property.
(b) Does not
include the public benefits of economic development, including an increase in
tax base, tax revenues, employment or general economic health.
6.
“Taken” and “Taking” mean the transfer
of ownership or use from a private property owner to this state or a political
subdivision of this state or to any person other than this state or a political
subdivision of this state.
12-1137.
Applicability
If a conflict
between this article and any other law arises, this article controls.
12-1138. Severability
If any provision of this act or its application to
any person or circumstance is held INVALID THAT invalidity does not affect
other provisions or applications of the act that can be given effect without
the invalid provision or application, and to this end the provisions of this
act are severable.