A matter of simple justice: Proposition 207

Proposition 207, the Private Property Rights Protection Act is perhaps the most poorly understood measure on the November ballot.

The Tucson Weekly, for example, gets it dead wrong. It isn't about getting rid of zoning laws or the Sonoran Desert Conservation Plan, and wouldn't even have that effect.

Capitalizing on the pro-liberty backlash against the -Kelo decision, Americans for Limited Government, a national, non-partisan, action-oriented group, financed a drive to put measures on the ballot in several states to limit eminent domain abuse and related misuses of power.

Prop. 207 addresses the central issues of Kelo by ensuring that public use is a judicial, not legislative or regulatory, question in Arizona and defining it to be:

1. The possession, occupation and enjoyment of the land by the public or by public agencies.
   
2. The use of land for the creation or functioning of public utilities.
   
3. The acquisition of property to cure a direct and immediate threat caused by the current use of the land (such as removing structures that are beyond repair or that are unfit for human habitation or use).
   
4. The acquisition of abandoned property.
   

Were it to stop there, it'd already be worthy of support, but it gets even better. For starters, Prop. 207 redefines "just compensation" for homeowners to mean a comparable safe, sanitary, and habitable dwelling or enough money to buy one. In other words, if 207 passes, the government can't take your home and just give you its cash value if it wouldn't be enough to buy another home. Eminent domain takings will no longer turn homeowners in poor neighborhoods into renters.

The most exciting--and the most controversial--benefit of 207's passage would be its partial-takings clause which requires the government to compensate property owners for regulations such as downzoning (do a search for Emmett McLoughlin to find out why that's a big deal) that take away from the value of their property by directly restricting its use. A list of exceptions can be found at the AZ HOPE website; the obvious ones such as public safety are covered, and unlike the Oregon measure which pioneered the concept of partial-takings, Prop. 207 is not retroactive and won't threaten to bankrupt municipalities all over the state.

Those who say that the partial-takings clause "goes too far" can be divided into three groups: Those who don't know what the measure does, those who haven't thought it through, and those who'd hate to see the government's power checked. For the last there is no remedy but ridicule--call a whip a whip! The first are usually concerned that the government will have to pay for anything it does anywhere that negatively influences property values; the text of the measure makes it quite clear that only laws directly regulating an owner's land would require compensation. I'll try to do something for the middle group here.

The modern conception of property is that it is a "bundle of rights", and that having title to land gives the right of exclusion and to various forms of use, the limits of which are, in urban areas, often determined by zoning and the municipal code. If you take away some of those rights, it's not "just like" taking some of the property; it is taking some of the property. The owner may still own the land but he is poorer because some of his right to it is gone; ownership, pop libertarians be damned, is not an all-or-nothing affair. Since the passage of the Bill of Rights and before, we have operated under the principle that the government, servant of the people, must provide compensation when it takes their property. Passage of Proposition 207 updates the Fifth Amendment's protections so that they take into account the creative swindles of modern municipal governments, ensuring that the government must pay if it takes some property rights just as it would pay if it took all property rights.

Make no mistake of thinking that Proposition 207 only concerns megadevelopers. Property is savings and livelihood; the partial takings clause protects homeowners, small businesspeople, farmers, landlords, and developers alike. Proposition 207 would force politicians to consider the human cost of regulation and to take responsibility for harm done to individuals. It's a matter of simple justice. Vote "yes" on 7 November and encourage your friends to do the same.