Last year I told you about a bill that was
proposed in the Arizona Legislature titled
the Private Real Property Rights Preservation
Act. That bill did not pass, but questions
about private property rights, and particularly
when government regulation of the use of property
goes too far, are ongoing (and are a favorite
topic of mine, as you, my loyal readers, have
no doubt noticed).
I have discussed in past Updates the legal
concept of “governmental taking,”
that is, when a government body may be considered
to have “taken” private property
to the point where the government must pay
compensation to the property owner. There
has long been debate in legal circles about
to what extent government can restrict the
use of property without “taking”
it. The basic concept of zoning as a permissible
use of the government’s police power,
and not as a “taking,” was not adopted
by the courts until the 1930s. More recently
there have been several prominent cases, notably
one involving a “temporary moratorium”
on building in the Lake Tahoe area that lasted
some twenty years, in which the courts have
tried to draw the line between what is and
what is not a compensable “taking.”
Several years ago, the Arizona Legislature
tried to rein in local government actions
that could be considered a “taking”
by adopting a statute that prohibits counties
from “downzoning” property without
the owner’s consent. “Downzoning”
can be defined as a change in the zoning of
a property that reduces the permitted uses
of that property. A later ruling by the Arizona
Court of Appeals, however, undid that statute
by ruling that the provision requiring owner
consent to a downzoning was an impermissible
delegation of a legislative function. That
ruling probably also invalidates another statutory
provision that says a county cannot rezone
private property for “open space, recreation,
conservation or agriculture” without
the owner’s consent. The ruling doesn’t
directly address whether or not such downzonings
would qualify as “takings,” but
it certainly doesn’t preclude owners
whose properties are downzoned from claiming
that the downzoning is a “taking.”
The question of whether or not government
action constitutes a “taking” has
come up recently in Tucson in a slightly different
context. The City of Tucson and Pima County,
in response to legislation adopted by the
Arizona Legislature, are in the process of
adopting amendments to their zoning codes
to impose new use restrictions on properties
in the vicinity of Davis-Monthan Air Force
Base. Property owners have, as you might expect,
expressed opposition to the proposed new restrictions.
A significant segment of the opposition, however,
has been directed not to the new use restrictions
themselves, but to the designation of certain
areas around the Base as an “Airport
Environs Zone.” The objecting property
owners apparently fear that they will have
to disclose such a designation to potential
purchasers and that it will stigmatize their
property. Some of these property owners have
suggested that the imposition of these regulations
would amount to a “taking” because
they believe it will have a significant negative
impact on the value of their property.
Some property owners have even gone so far
as to suggest that military airplanes flying
over their properties is a “taking,”
again because it is a government action that
may impair the value of their property. The
trouble with this approach is that if any
government action that reduces the value of
a property qualifies as a “taking,”
then there would be no zoning or other use
regulations at all. Without zoning, I could
theoretically tear down my house and build
the Hannah Towers (a proposed 98-story mixed
retail, office and residential building complex)
on my lot. Since my lot would be worth much
more with the Hannah Towers on it instead
of my house, the presence of regulations that
prohibit buildings taller than thirty feet
is a “taking” with respect to my
lot, right?
Well, no, it isn’t. As I alluded to
above, the law at least since the 1930's has
been that government regulation of the use
of property is not a “taking” unless
it goes too far. How far is too far is, as
you can probably guess, a subjective, amorphous
line that has been drawn with varying degrees
of clarity at various times and places. I’m
pretty sure that the presence of airplanes
flying into Davis-Monthan, and being required
to tell a prospective purchaser that your
property is in a zone affected by those airplanes,
don’t cross that line.
More on Assistance Animals
for the Emotionally Dependent
Two years ago, I told you about an assistance
dog whose “emotionally dependent”
owner insisted on bringing the dog into a
consignment clothing shop. It seems that the
use of such assistance animals is becoming
more wide spread. The story I told you about
was out of Seattle, Washington. Now I have
come across a recent report in the San Francisco
Chronicle that the City of San Francisco has
issued 658 tags for assistance dogs. The Chronicle
also says that all it takes to get a tag for
an assistance dog in California is a note
from a doctor and a signed statement from
the owner that the dog has been specially
trained. The term “specially trained”
seems rather loose, however, as the training
can be done by the owner of the dog. At least
for now, the process is limited to dogs.
No similar law has been adopted in Arizona
as far as I am aware, so property owners in
Arizona can still limit access by service
animals to those assisting individuals with
recognizable physical disabilities. But in
California and Washington, if someone shows
up at the door of your business with a dog
and some form of government issued tag that
says the dog is an assistance animal, you
apparently have to let the individual and
the dog come in, even if the individual shows
no sign of disability.
