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Debating the merits of 'downzoning'  Arizona
Included below are 4 separate articles on the same issue. 

 --------------------------------------------
Tucson Citizen Link

Debating the merits of 'downzoning'

(caption under photo) Standing on the West Side parcel of land that was the subject of a court dispute are two people on opposite sides of the issue. Attorney Jeffrey M. Neff represented the landowner in a suit against Pima County. Sharon Bronson is chair of the Pima County Board of Supervisors.

TRICIA MCINROY/Tucson Citizen
Tucson Citizen
Dec. 23, 2002

EDITOR'S NOTE: When land is rezoned, usually by someone wishing to develop it, it is "upzoned" - going from a less restrictive, more intense use. An example of this would be land zoned for one home per three acres that is rezoned to three homes per acre. Resident land that is rezoned for commercial use is also upzoned.

Downzoning is the opposite and is far less common. This is a change in zoning to a more restrictive and less intense zoning category. Examples of this would be to change the zoning from commercial to residential or from three homes per acre to one home every three acres.

In 1998, the state Legislature passed a law requiring counties to get written permission from owners of properties targeted for downzoning.

Pima County challenged that law.

In May 2000 the Board of Supervisors downzoned a 1963 commercial zoning that would have allowed a convenience store, apartments and a minimall. The new zoning would have allowed one home per 3.3 acres on a 32-acre parcel in the Tucson Mountain foothills.

One of the landowners, Tucson real estate broker Emmett McLoughlin, sued, claiming the county's action violated state law because he had not been given written permission.

But a Pima County Superior Court judge ruled in favor of the county last year. McLoughlin appealed, and in November the appeals court upheld the lower court ruling, validating the county's action.

An appeal to the state Supreme Court is likely.

The Tucson Citizen asked people on opposite sides of this issue to discuss its implications.

Sharon Bronson is the chair of the Pima County Board of Supervisors, which downzoned the land.

Opposing the county are attorneys Jeffrey M. Neff and Ethan Steele, who represented McLoughlin.

Neff is a lawyer who has been in private practice in Tucson for nearly 25 years. He is certified as a real estate specialist by the Arizona Board of Legal Specialization and is a graduate of the University of Arizona's College of Law.

Steele, also a graduate of UA's College of Law, is a lawyer who has been in private practice in Tucson since 1983. The emphasis of his practice is on trial, motion and appellate practice.

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PRO: Conditions change over time, so zoning flexibility is needed
Link

SHARON BRONSON
Dec. 23, 2002

Arizona counties have the right to downzone undeveloped land, according to a recent unanimous Arizona Court of Appeals (Division 2) ruling.

In Emmett McLoughlin v. Pima County, the court joined the appellate courts of Illinois, Virginia and Texas in affirming that counties do have this limited control over land use.

The court held that a statute requiring consent from a landowner as a condition of a board of supervisors adopting zoning legislation is unconstitutional because it effectively delegates ultimate legislative authority to the landowner by giving the landowner a veto power that cannot be overridden by the duly elected legislative body.

Should zoning decisions be made by an elected body with the responsibility to act in the best interest of the general public's health, safety and welfare, rather than by a self-interested property owner, likely to put his own welfare before the interests of the general public?

The court said yes, thus rejecting the tyranny of one over the good of many.

Community values, growth patterns and conditions change with time. Zoning that was deemed appropriate several decades ago might not be appropriate today.

For example, what if an individual property owner decided to build a high-rise commercial building or slaughterhouse next to your residence? You would be horrified and your property values would plummet - although his property values might rise. Your health and safety could well be at risk. Zoning exists to protect us from such situations.

Some complain that it's unfair for local jurisdictions to downzone property. They insist that it "takes" the owner's property rights.

Property owners have never had the right to zoning in perpetuity. However, they do have the right to continued use. In other words, if you buy a parcel of property that is undeveloped dirt, the way to vest or assure your rights is to develop it. You can keep your development even if the zoning later changes.

However, if you sit on your rights, do nothing for a half-century and conditions change such that the zoning is no longer appropriate, then the local legislative body may well alter your zoning. If your property is still undeveloped dirt, it will be subject to the new zoning.

This was the situation in the McLoughlin case.

Incidentally, McLoughlin owns only one parcel within an entire subdivision that was downzoned. The owners of the other parcels that were downzoned did not complain. They were already in the process of developing a residential subdivision, even though they had commercial zoning, because they realized that this was a more appropriate use of their property.

McLoughlin's property has greatly appreciated in value. It has not been taken. Development is active throughout this area.

McLoughlin argued that since the consent requirement is unconstitutional, the court should strike that part of the legislation and replace it with a total prohibition against rezoning by counties - a so-called vested right in zoning.

However, the Court of Appeals found, as had the Superior Court, that the Legislature never intended to prohibit counties from rezoning altogether. This would be irrational because it would only apply to counties and not to cities and towns. A property owner would still be subject to rezoning if a municipality were to annex his property.

Additionally, this would require a complete overhaul of the Growing Smarter legislation. This legislation provides that counties and municipalities work together to plan and zone for the common welfare, including both up-zoning and downzoning as conditions dictate.

Furthermore, if a county could not rezone property in accordance with its adopted Comprehensive Plan, then the entire planning and zoning process would make no sense. As I have already indicated, the law provides that property owners' rights vest in the uses they develop on their property, not in the mere zoning.

Zoning is not an entitlement. If an individual risks investing in the stock market and his stocks decline in value, government does not write him a check for the difference.

Investment in land also carries risk and government is under no obligation to guarantee a landowner the return on investment that he wants.

Finally, if a property is rendered entirely useless or worthless by a legislative act of an elected body, the property owner has legal remedies. If the property was truly taken, the property owner has a right to just compensation.

No new legislation is needed; the United States Constitution requires it.

 --------------------------------------------

CON: Pima County is bulldozing landowners' rights and dreams
Link

JEFFREY M. NEFF and ETHAN STEELE
Dec. 23, 2002

Imagine, you own land in Pima County that's been in your family for 30 years. It was zoned "commercial" (i.e., business use) when they purchased it, and it still is today. That zoning was placed on your property by Pima County officials 36 years ago, who at the time believed that business was its appropriate use.

Now, without warning, new Pima County officials, through pressure from your neighbors, decide that the business zoning is a "mistake." They hold a hearing at which the local constituencies appear en masse to express their opinions about your land. And the officials vote to change its zoning to "suburban ranch" - one single-family home per 3.3 acres.

This change of zoning to a less intense use is called a "downzoning." Where you formerly could have placed a business or small shopping center on your land, it now can contain only two homesites. This change in the land's permissible use suits your neighbors, and perhaps it is also in the best interests of the community.

But, get this: Your family receives no compensation of any kind for this fundamental change in its possible use even though they have sustained an 80 percent loss in value and paid property taxes on the property at the commercial value for 30 years. It doesn't matter that the zoning was "commercial" when your family purchased it, as well as for the last 36 years. They see themselves as correcting a "mistake."

Is this fair or just a bad dream? Neither.

This is the situation that our client faced with a 1.4-acre parcel of land in the Tucson Mountains (see map at right).

Arizona formerly had a statute prohibiting such county downzonings.

However, in light of Pima County's recent successful legal fight to overturn that statute, this scenario is now a potential reality for everyone who owns undeveloped real property. We don't mean to comment on the recent court decisions holding the statute unconstitutional, as it is still in the process of appeal. But, we do wish to comment on the public policy and respond to the recently expressed opinions of the county officials currently involved in such downzonings.

Obviously, the county has the authority, delegated to it by the state, to regulate land use. That power is exercised by the establishment of a zoning code, setting forth the allowable uses (commercial, residential, etc.) for each piece of undeveloped real property.

In the past, counties had the power to change the zoning of undeveloped property. However, the Arizona Legislature was concerned that this power was being abused. So, in 1998, it passed the anti-downzoning statute that is now in question. Under that statute, purchasers and investors in undeveloped property could have depended on each parcel's established, designated use and had confidence in what they were getting at purchase.

Now, once again, virtually all restrictions have been removed from the county's ability to change the zoning of undeveloped land. As a result, landowners cannot depend on the lawfully established zoning. Rather, the zoning, and hence the value of the land, is reduced to a gamble upon the whim of the county officials as to its allowable uses.

These officials, in turn, respond to political forces - whether genuine concerns for the community's best interests, the private preferences of a small group or a hybrid of the two. Regardless, where such changes can be imposed without warning and without compensation, this loss of predictability is a potential disaster for property owners and for each citizen who depends on the rule of law in Arizona.

Sharon Bronson well articulated the position of the Board of Supervisors when, in a recent newspaper article, she called downzoning the ability to correct "mistakes." True, urban growth patterns change over time and what was once considered an appropriate location for business may no longer be so. This may make the action of down-zoning seem "reasonable."

But the way local politics are played, and without an obligation to at least pay compensation for a downzoning, the power is subject to abuse. It allows the preferences of one local group to prevail over the interests of another - in essence transferring wealth from one group to the other.

It also allows the county to tell a property owner: "We know that previous boards have passed this zoning, but this board considers that zoning law to have been a 'mistake' unless you give us certain concessions." The Legislature, by passing this statute, decided that this was not the way for government to do business. These so-called "mistakes" were laws actually voted upon and duly passed by previous boards, after public hearing and debate. They were laws upon which people depended when purchasing property.

People commonly think laws express the will of the majority, but there is another function of the law - to protect the minority from the will of the majority. In any land-use case, the property owner is always the minority. Thus, a policy that allows a Board of Supervisors to freely downzone property without compensation provides no protection for the single property owner from the will of their majority neighbors.

Such downzoning to accommodate the desires of a majority removes value and transfers it to their own properties, simply because they can outvote the single owner. While there may be much public good that could come from such a policy - desert protection, etc. - when you don't allow any protection for the rights of the single or minority property owner, many - or all - of us in the end may find ourselves in a minority.

It is clear how property owners are affected by Pima County's fight. They are deprived of a lawful, established, duly passed zoning. But how are other individuals affected?

We all ultimately lose when predictability is lost in land purchase and investing. The result is increased volatility and speculation. Since there is now no cost to the government for violating its own duly passed laws, which were relied upon by individual property purchasers, the predictability of their investments is destroyed - unless they are well connected politically.

So, we move further from a government of laws to a government founded on a case-by-case basis, which depends on how those in power at the moment "feel" about how a person's property should be used, with no respect for the continuity of previous passed laws, and no protection of the minority - the individual property owner - from the whim of the majority.

Just remember, in the end we are all the minority. God help us if the government decides that we are a mistake.

 --------------------------------------------
Guest Opinion: Bronson stance on Pima land steal hypocritical
Link

BARNEY BRENNER
Jan. 2, 2003

Downzoning is uncompensated governmental reduction in the value of a person's property.

Pima County is using this exploitive tactic on a cluster of privately owned parcels of land on the West Side of town.

On Dec. 23, the Citizen printed opposing sides of this topic with the "con" side, written by attorneys Jeffrey Neff and Ethan Steele, accurately portraying downzoning as an abuse of government power.

The "pro" side, by County Supervisor Sharon Bronson, uses misrepresentations to defend this abuse. Her words merit further scrutiny.

Employing a scare tactic, Bronson implies that without county power to downzone, a slaughterhouse or a commercial high-rise might get built next to your residence.

This gross exaggeration, which would be laughable if it hadn't come from an elected official, is supposed to justify stealing the rights of the people who own the property that the county is targeting.

In reality, the zoning that the county took simply would have allowed these folks to build stores on frontage near a long-established restaurant. The owners have had this zoning and value and paid corresponding commercial taxes for over 30 years.

Bronson then distorts this time period, stating that if you "do nothing for a half-century," your rights can disappear. But exactly how much time you actually have she doesn't say.

What if property was zoned 30 years ago but you bought it only last year? Or suppose you bought a home on a three-lot parcel so that your two kids could each have a homesite when they grew up?

It's not uncommon to sit on property for 15 or 20 years, perhaps until the extra land is paid off. A drop in the zoning would wipe out these extra homesites and destroy a huge chunk of your equity and of your kids' futures. The reduction that the county used in this target case was even more severe.

Bronson inappropriately compares these takings to stock market losses. The difference is that although stock or real estate values can rise or fall due to market fluctuation, manipulation of the stock market by powerful interests is illegal.

The fact that politicians are doing the manipulating, and it's the real estate instead of the stock market, doesn't make it right. In fact, it makes it worse since they're elected to protect our rights, not to trash them.

So when can we be secure in our property rights? Bronson believes that unless and until you build the maximum allowed under your zoning, your remaining rights are subject to the whims of her administration.

Government does have the power, called eminent domain, to take title and/or partial or full use of your land for a public good. But this power requires just compensation and it ensures that the whole of society shares the cost. It's a mockery of our laws and freedoms when the stolen rights and values are uncompensated.

In further attempts at justification, Bronson writes, "The owners of the other parcels that were downzoned did not complain." This is immaterial and also incorrect.

While one owner did make a deal with the county, Bronson conveniently forgets the Thomas Maloneys of Illinois, who own 11 acres that were downzoned. They protested vehemently when County Administrator Chuck Huckelberry sent them a letter requesting their approval. However they are a retired couple who cannot afford the costs that a lawsuit requires. Consequently, while they have lost the most, probably a significant part of their retirement, they are not represented in the ongoing court action.

In 1998, our state Legislature enacted a no-downzoning law as an added protection for just these kinds of folks from exactly this type of capricious government act. But Pima County decided to spend our tax dollars fighting that law instead of compensating property owners.

The suit is on appeal and the law may have been imperfectly written, but that shortcoming does not negate the protections that already exist in our state and federal Constitutions. Bronson pays lip service to our Constitutions, but qualifies it with phrases such as "if the property was 'truly' taken," and "if a property is rendered 'entirely' useless ... the property owner has legal remedies." The Constitution itself uses no such qualifiers so these are effectively euphemisms for "we'll see you in court."

The implication is either that these people haven't "really" lost anything or that a partial theft is no theft at all. Bronson's statement that "the property owner has a right to just compensation," without her following through with appropriate action, is thoroughly hypocritical. These folks deserve better.

Barney Brenner, who ran against Bronson in 1998, is a business owner and president of the Tucson Republican Club.

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"Your Capital Connection" . Washington, DC

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