By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Opponents say the extra review process is designed to bog down government and slow regulatory procedures written to protect health and safety.
Most property-rights experts agree that the real dilemmas over takings are precipitated by federal agencies enforcing environmental laws and by cities enforcing zoning laws. Not at the state level, which is all Proposition 300 addresses.
The referendum is so convoluted that no two lawyers have interpreted it the same way, and many have come away with dire predictions about increased costs and bureaucracy. It's so confusing that former senator Barry Goldwater, who initially announced his opposition to it, was convinced to flip-flop at the personal coaxing of Killian and Symington. Foes of the measure say national property-rights leaders are just using states like Arizona as a proving ground to test methodology, determine public support, increase that support and use it to get federal laws changed.
"Arizona is perceived as being the forefront of certain conservative-type causes, and this [private-property-rights movement] plugs right into that," says Grady Gammage Jr., a Phoenix development attorney who strongly opposes Proposition 300--an unusual position for someone in his line of work.
Like vouchers, the property-rights issue is a "litmus test" for conservatives, Gammage says. Especially for conservatives like Fife Symington, who was once known as a moderate but has taken a sharp turn to the right in recent years.
Even so, Gammage doesn't understand Symington's motivation.
"What's he [Symington] going to do?" he asks. "Run for president? Fife Symington? Excuse me! Run for the Senate? What is he looking for? He likes to get written up as one of the best Republican governors, I guess."
If that's the case, the guv should be happy: In August, the conservative National Review gushed, "Fife Symington of Arizona has turned out to be one of the country's best governors." Daniel D. Polsby, a law professor at Northwestern University, hailed Symington on his positions on vouchers, truth in sentencing, tax cuts and "other conservative staples."
The people pushing Proposition 300 have done everything short of plunking a powdered wig on Symington's head to paint their man as the Founding Father type, a man who will be remembered as the savior of our constitutional rights--particularly the Fifth and 14th. Or at least as a notable guy. Proposition 300 backers have compiled two pages of quotes titled "Thoughts on Private Property Rights: History's Perspective," including pontifications from, among others, Cicero, John Locke, Thomas Jefferson, George Washington, Noah Webster, Pope Pius X, Walter Lippmann and--you guessed it--Fife Symington, who, upon signing the bill that would later become Proposition 300, opined: "Private-property rights lie near the source of the liberty under which Americans are free to enjoy the God-given beauty of the Earth. It is the nature of government constantly to close in upon that liberty, to diminish it, to consume it. Indeed, one day the historians may put down our era as one where the gradual intrusion of the public upon the private came to deprive Americans of the liberty that was once the envy of the world. The right to property is a civil right, no less than the rights to freedom of speech and worship, and the rights to due process and equal protection under the law."
The Fifth Amendment to the United States Constitution guarantees the right to own private property. It states that no person shall ". . . be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation." The 14th Amendment reiterates that right, almost verbatim.
Since the late Eighties, a movement as virulent--if less public--as the one designed to protect the Second Amendment right to bear arms has taken aim at federal laws designed to safeguard endangered species, wetlands and water quality. Miners, farmers, ranchers, developers and others who own large hunks of property compose the bulk of the movement, dubbed "Wise Use" by a Washington state man named Ron Arnold. Arnold is viewed with skepticism even by those who have adopted his moniker--he and his associates have been linked to Sun Myung Moon's Unification Church. Arnold has told the media he would like to replace every environmental group with a Wise Use group. Since his pronouncement, a number of Wise Use groups--including People for the West!, which has Arizona members--have been formed.
The birth of the Wise Use movement coincided with the signing in 1988 of President Ronald Reagan's Executive Order No. 12630, which reads in part: "Governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required."
Reagan's "takings" order has been widely criticized. When the order was a few months old, the nonpartisan Congressional Research Service offered the opinion that it "overestimates the likelihood of a taking," that "there appears to be no justification in federal taking jurisprudence for the added demands imposed by the Order on government actions aimed at protecting health and safety," and that the order "has the potential to burden implementation of federal environmental programs."
The U.S. Office of Surface Mining Reclamation and Enforcement proposed a rule in 1991 that would have had the effect of opening national parks, backyards, schoolyards, churchyards and graveyards to strip mining. The justification for the proposal--which was never approved--was Reagan's Executive Order 12630.