Building restrictions may face court test

Posted on April 17, 2007 | Type: In the News
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Midtown neighborhoods surrounding the University of Arizona want the city to approve a controversial neighborhood-preservation zoning overlay to protect them from the "minidorms" invasion.

But a group of property rights advocates in Tucson and statewide contend the overlay zone will be something else: a potential test case for Proposition 207, a ballot initiative passed last year requiring governments to compensate landowners if government land-use rules lower their property values.

After continuing a public hearing on the neighborhood protection zone in March, the council will hold a study session on the issue at 3:30 p.m. today. Final action is expected after a public hearing next week.

The consideration of a zoning overlay would begin if more than 25 percent of the property owners in a neighborhood petition for it. That would start a public process that includes several public hearings and a council vote. The neighborhood has to justify why it wants certain requirements on development, such as height restrictions and minimum yard sizes.

But Richard Studwell, a property owner in the Jefferson Park Neighborhood, said those types of restrictions would not allow him to build guest houses on his properties, limit his properties to one-story and restrict the size of any house on his properties.

"All those are more restrictive things and they're taking value away from my property," Studwell said.
Clint Bolick, a senior fellow at the Goldwater Institute, agreed, adding Tucson and the neighborhood protection zones "could be the first major Prop. 207 lawsuit."

He said the Goldwater Institute and new Center for Constitutional Litigation which will open in June and be directed by Bolick has its eye on this Tucson case.

Prop. 207, which was dubbed the Private Property Protection Act, passed with almost 65 percent of the vote last November.

"The voters have spoken very, very strongly," Bolick said. "If Tucson decides to take people's property rights, they're going to have to pay for it."

City Attorney Mike Rankin said he didn't disagree that Tucson could be a test case for Prop. 207.

"There's going to be a test case somewhere," he said. "It's just whether it's going to be here or somewhere else."

Rankin also said it won't be next week's vote that is at issue, adding that only after a neighborhood adopts such a plan would Prop. 207 come into play.

Additionally, Rankin said each specific neighborhood plan would come back for a council vote, where the council could decide to strip the plan of regulations that would run afoul of Prop. 207.

He also said special districts such as historic overlay zones often raise property values rather than lower them, making any Prop. 207 claims moot.

The overlay zoning arose out of the Jefferson Park Neighborhood Association's looking for a solution to unwanted minidorms, which usually occur when a house is replaced with another that is usually larger, often taller and has more bedrooms.

The "minidorms" typically mean more people, more cars and more noise for neighbors because the tenants are often college students who keep later hours than a typical family.

Councilwoman Nina Trasoff, a strong backer of the overlay zones, said "people who own properties in neighborhoods also have property rights."

She said the overlays are an attempt to protect the fabric and community of neighborhoods.

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