posted by
Property Rights Foundation of America®
Founded 1994

The Arizona Property Rights Referendum

for information see,
Tom Rawles
Chairman, Maricopa County Board of Supervisors
301 West Jefferson, 10th Floor
Phoenix, AZ 85003
referenced in "Western States Directions to Regain Land Use Sovereignty"

Proposition 300
Official Title
Referendum ordered by petition of the people

ordering the submission to the people of an act amending Title 37, chapter 2, Arizona Revised Statutes, by adding Articles 2.1; amending Sections 37-231 and 37-604, Arizona Revised Statutes; amending Title 37, chapter 2, Article 3, Arizona Revised Statutes, by adding Section 37-261; relating to State lands.

Text of Proposed Amendment

Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 37, chapter 2, Arizona Revised Statutes, is amended by adding article 2.1, to read:
Article 2.1. Private Property Rights Protection

37-220. Definitions
In this Article, unless the context otherwise requires:

1. "Constitutional taking" or "taking" means due to a governmental action private property is taken such that compensation to the owner of that property is required by either:

(a) the Fifth or Fourteenth Amendment of the Constitution of the United States.
(b) Article II, section 17 of the Constitution of Arizona.

2. "Governmental action" or "action":

(a) means:

(i) proposed rules and emergency rules by a State agency that if adopted and enforced may limit the use of private property.
(ii) proposed or implemented licensing or permitting conditions, requirements or limitations to the use of private property.
(iii) required dedications or exactions from owners of private property by a State agency.

(b) does not include:

(i) activity in which the power of eminent domain is exercised formally.
(ii) repealing rules, discontinuing governmental programs or amending rules in a matter that lessens interference with the use of private property.
(iii) law enforcement activity involving seizure or forfeiture of private property for violations of law or as evidence in criminal proceedings.
(iv) orders that are authorized by statute, that are issued by a State agency or a court of law and that were the result of a violation of State law.

3. "Private property" means any real or personal property in this State that is protected by either:

(a) the Fifth or Fourteenth Amendment of the Constitution of the United States.
(b) Article II, section 17 of the Constitution of Arizona.

4. "State agency" means an officer or unit of the executive branch of the State government that is authorized by law to adopt rules. State agency does not include the legislative or judicial branches of State government.

37-221. Constitutional taking guidelines and checklist

A. The Attorney General shall adopt guideline to assist State agencies in the identification of governmental actions that have constitutional taking implications.

B. In formulating the guidelines, the Attorney General shall observe the following principles:

1. State agencies shall be sensitive to, anticipate and account for the obligations imposed by the Fifth and Fourteenth Amendments of the Constitution of the United States and Article II, section 17 of the Constitution of Arizona in planning and carrying out governmental actions to avoid imposing unanticipated or undue additional burdens on the public treasury.

2. Governmental actions that are taken by State agencies and that result in a physical invasion or occupancy of private property and actions that affect value or use may constitute a taking of private property.

3. Governmental action may amount to a taking even though the action constitutes less than a complete deprivation of all use or value or of all separate and distinct interests in the same private property or the action is only temporary in nature.

4. State agencies whose governmental actions are specifically to protect public health and safety are ordinarily given broader latitude by courts before their actions are considered to be takings. However, the mere assertion of a public health and safety purpose is insufficient to avoid a taking. Therefore, actions that are purportedly to protect he public health and safety shall be:

(a) taken only in response to real and substantial threats to public health and safety.
(b) designed to advance significantly the health and safety purpose.
(c) no greater than necessary to achieve the health and safety purpose.

5. Although normal governmental processes do not ordinarily constitute takings, undue delays in decision making that interfere with private property use carry a risk of being held to be a taking. In addition, a delay in processing may increase significantly the size of compensation due if a constitutional taking is later found to have occurred.

6. The Constitutional protections against taking private property are self-executing and require compensation regardless of whether the underlying authority for the action contemplated a taking or authorized a payment of compensation.

C. The Attorney General shall:

1. Complete the guidelines on or before January 1, 1994.

2. Review and update the guidelines at least on an annual basis to maintain consistency with court rulings.

37-222. Constitutional taking: state agencies

A. The Attorney General shall designate an Assistant Attorney General, who is counsel for a state agency, who shall determine whether a proposed governmental action has constitutional taking implementations and who is responsible for ensuring compliance with this article.

B. Using the guidelines prepared under section 37-221, the state agency shall prepare an assessment of constitutional taking implications that includes an analysis of at least the following elements:

1. The likelihood that the governmental action may result in a constitutional taking, including a description of how the taking affects the use or value of private property.

2. Alternatives to the proposed governmental action that may:

(a) fulfill the government"s legal obligations of the state agency.
(b) reduce the impact on the private property owner.
(c) reduce the risk of a constitutional taking.

3. An estimate of financial cost to this state for compensation, and the source of payment within the agency"s budget if a constitutional taking is determined.

C. In addition to the guidelines prepared under section 37-221, each state agency shall adhere, to the extent permitted by law, to the following criteria if implementing or enforcing governmental actions that have constitutional taking implications:

1. If an agency requires a person to obtain a permit for a specific use of private property, any conditions imposed on issuing the permit shall directly relate to the purpose for which the permit is issued, shall substantially advance that purpose and shall be expressly authorized by law.

2. Any restriction imposed on the use of private property shall be proportionate to the extent the use contributes to the overall problem that the restriction is to redress.

3. If an action involves a permitting process or any other decision making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary.

4. Before taking an action restricting private property use for the protection of public health or safety, the state agency, in internal deliberative documents, shall:

(a) clearly identify, with as much specificity as possible, the public health or safety risk created by the private property use.
(b) establish that the action substantially advances the purpose of protecting public health and safety against the specifically identified risk.
(c) establish, to the extent possible, that the restrictions imposed on the private property are proportionate to the extent the use contributes to the overall risk.
(d) estimate, to the extent possible, the potential cost to the government if a court determines that the action constitutes a constitutional taking.

D. If there is an immediate threat to health and safety that constitutes an emergency and requires an immediate response, the analysis required by subsection B of this section may be made when the response is completed.

E. Before the state agency implements governmental action that has constitutional taking implications, the state agency shall submit a copy of the assessment of constitutional taking implications to the governor and the joint legislative budget committee.

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