Give and Take 

Is HB 2411 a principled fight over property rights--or another attempt to undermine Pima County's Sonoran Desert Conservation Plan?

State Rep. Marian McClure says her bill is about protecting private property values from rapacious government officials who are "abusing their power."

But her critics say the proposed legislation is about chilling the effort to preserve the desert through land-use plans such as Pima County's Sonoran Desert Conservation Plan.

"It's probably directed at the county and an indirect attempt to continue to undermine the Sonoran Desert Conservation Plan," says County Administrator Chuck Huckelberry, who has been overseeing the plan since the Board of Supervisors directed him to proceed in 1998.

The conservation plan is making "great strides," according to Huckelberry, who expects a steering committee to come forward with a recommendation perhaps as soon as later this month. Within another 60 days, he expects the county will complete a long-sought economic analysis.

Private property advocates have long complained that the county's plan will most likely include habitat set-asides and other new rules, including possible downzoning, that will cut into the value of their land.

That's where McClure's legislation, House Bill 2411, comes in. Under the proposal, property owners would be eligible for compensation by taxpayers if planning regulations decrease their property value by 25 percent or more.

Sandy Bahr, the Sierra Club's legislative lobbyist, says McClure's bill is the latest iteration of so-called "takings" legislation at the Capitol. Although various takings bills have been floated in the last decade, the hottest flare-up came when state lawmakers passed a 1992 bill that would have required an economic analysis before any new health, safety or environmental regulation could be enacted, as well as compensation for the affected party. After the Sierra Club and other groups forced a referendum, voters rejected the law by 20 percentage points in 1994.

Since then, the question of what constitutes a taking has been thrashed out in the courtroom. The U.S. Supreme Court ruled in 2001, for example, that property owners around Lake Tahoe were not entitled to compensation after a local government agency imposed a temporary building moratorium.

Bahr says the standard in McClure's bill "goes well beyond the Constitution or the courts have indicated is a taking. Almost anything government does affects the value of property, whether it's giving value or taking value. And sometimes an action gives value over here and takes value over there."

The bill sets a market value for property rather than using, say, the county's appraised value, which will lead to different varying assessments depending upon the appraiser.

"Under what time frame would you consider this?" asks Bahr. "Something that looks like it might affect the value today could increase it several years down the road."

McClure says she chose to use market value because it's always higher than the county's assessed value.

More importantly, Bahr argues, the legislation would simply have a chilling effect on planning efforts by making some steps simply too uncertain or expensive for government to take. Bahr says McClure is really aiming at the Sonoran Desert Conservation Plan.

"The bill would clearly affect the plan and just about anything else that cities and counties wanted to do relative to land-use planning and zoning," says Bahr.

"I don't think that at all," says McClure, who adds that jurisdictions will just have to be "a little more creative" in crafting their plans.

At the county, Huckelberry calls the proposed legislation the "speculator's insurance bill."

"They're trying to characterize any type of rational land-use planning as a taking," says Huckelberry. "That's simply not the case."

McClure's bill has advanced through three House committees, including the Rules Committee on Monday, March 3. If it passes the full House, it will move next to the Senate.

Gov. Janet Napolitano has not yet taken a position on the bill, according to spokesperson Patti Urias.

If lawmakers are going to consider the takings legislation, Huckelberry hopes they'll give some thought to his own plan.

"We'd like to see a givings bill," Huckelberry says. "Acts of government to rezone property increase the value, acts of government to provide fundamental infrastructure such as roads and sewers and water significantly increase the value, so there ought to be compensation for that. You could use it to balance the budget."

More by Jim Nintzel


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