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Restricting Restrictions

Proposition 207 could limit county efforts to suppress development around Davis-Monthan

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When almost two-thirds of Arizona voters approved Proposition 207 on Nov. 7, they may have thought they were protecting private property from unwarranted government confiscation. But Pima County Supervisor Ramón Valadez draws a different conclusion.

"The voters have punished communities for trying to prevent encroachment," Valadez says of more stringent land-use regulations proposed near Davis-Monthan Air Force Base. That decision, Valadez warns, "has put our military base at risk."

After a joint land-use study looked at property around D-M a few years ago, it made several recommendations to protect the base and the jobs it provides Tucson. Among other ideas, the report suggested severely limiting the future land uses which could be established off either end of the base's runway.

Following up on that recommendation, the Tucson City Council in October 2004 adopted tough and controversial zoning regulations for the incorporated property near D-M. These rules are supposed to diminish the possibility of new incompatible land uses encroaching on Davis-Monthan. That is one of the base's primary weaknesses, and could eventually lead to conflicts with keeping military planes flying over Southern Arizona.

The city of Tucson's 2004 action was intended to be the first of two steps taken by local governments in order to protect the base from future encroachment. Over the next two years, however, Pima County didn't follow suit, and now voter approval of Proposition 207 raises questions about whether the county ever will.

"Our intent was to take a draft ordinance to the Planning and Zoning Commission early next year. But I'm not sure now," says county planner Arlan Colton.

According to Colton, by 2005, Pima County had prepared its own version of regulations similar to the city's in order to cover the unincorporated property off the southeast end of the base's runway. Despite having the new rules in draft form, Colton says the decision was made to hold off on their review and approval pending completion of the Military Community Compatibility Committee (MC3) planning process.

"We felt it was the honorable thing to wait," Colton says about delaying consideration of the land-use regulations until the committee issued its final report, which was finally accomplished a few months ago. "I don't know (if it was a mistake). We'll see."

Bruce Dusenberry spearheads the base support group DM-50 and was a member of the MC3 group. He says postponing adoption of the land-use regulations was "absolutely" a misstep on the county's part. "I never understood that," he says.

Approval of Proposition 207, in Dusenberry's view, "has thrown a wrench in the machinery" of the county's adoption process for proposed D-M regulations. It could also end up costing Pima County taxpayers a lot of money.

The new state law provides that whenever local governments decrease the value of private property through more restrictive zoning regulations, "the owner will receive just compensation, either by negotiation or by an efficient and fair judicial process."

As an example, the city of Tucson's current zoning around D-M is much more restrictive than it was before its 2004 rules were adopted. These regulations curtail not only the types of land uses allowed, but also severely limit the density of development.

If similar restrictions are placed by the county on the industrial, commercial and residential vacant land southeast of the base, Pima County could be looking at paying the impacted private property owners, thanks to the provisions of Proposition 207.

But Colton says county officials are still debating the effects of the new law. "There's speculation about what it means, and everyone has a different idea. It's a bit frustrating, because we don't really know."

In 2004, Oregon approved Measure 37, which is somewhat similar to Proposition 207. Based on what has happened in the Pacific Northwest, Colton predicts: "People may say, 'Here's an opportunity to file a claim (for damages)' regardless if it has validity or not. ... I understand there are lots of claims in Oregon."

Before this November's election, proponents of Proposition 207 insisted land-use regulations around D-M would fall under its "protection of the public's health and safety" exemption. But Valadez, who represents much of the area southeast of the base, points out that with 207, it is the government, not the property owner, which must legally prove an exemption exists.

The government, Valadez adds, must pay attorney's fees if the property owner prevails after filing a claim for damages. However, when the government isn't required by a court to pay a claim, the government is prevented from seeking attorney's fees from the property owner. As a result of this double standard, Dusenberry calls the proposition "a lawyer relief act."

Admitting he was preaching doom and gloom about passage of the proposition before the vote a few weeks ago, Dusenberry now observes of the proposed D-M land-use rules: "The county should go ahead and adopt the regulations."

At the same time, Valadez remains in doubt about how to proceed. "I certainly favor adopting regulations (around D-M)," he says, "but if we can do it is another story."

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