By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Don't get Killian wrong. He's not opposed to cleaning up the environment. Just don't ask the person who owns the property--who's messing it up--to foot the bill.
He says, "What it boils down to is, no one is arguing against the protection of endangered species or the protection of wetlands, but the argument is who should pay."
When he talks about Proposition 300, Mark Killian forgets nonenvironmental organizations that oppose the measure, groups like the Arizona Public Health Association, Arizona Consumers' Council, Arizona Association of University Women, Arizona Preservation Foundation, Arizona Archaeological Council and Arizona Common Cause.
The debate over Symington's vouchers was suffused with questions about the separation of church and state. Should children be allowed to use taxpayer money to pay tuition at a parochial school? Many folks who didn't mind the concept of vouchers did mind that. So they didn't support vouchers.
The same holds true here, where organizations that have little to do with environmental protection strongly oppose Proposition 300. They argue that the bill is so poorly written that it could lead to everything from the destruction of historic buildings to serious threats to public health and safety.
For example, the opposition claims, if the state passed a law decreasing the staff-to-child ratio at day-care centers, a day-care-center operator could claim a government taking had occurred, because he or she would see a decline in revenue. Killian disagrees. "The Fifth Amendment doesn't guarantee you highest and best use of your property," he says.
But David Baron, assistant director of the Arizona Center for Law in the Public Interest, counters, "That's what the [U.S.] Constitution says--he's right! But that's not what this bill says. This proposal says that you have to use the least-restrictive means to regulate."
Proposition 300 includes provisions that state that only the minimum health and safety standard must be met. If a staff-to-child-ratio regulation goes at all beyond the minimum, it could be construed as a taking, Baron believes.
But no one will know until the law goes into effect--if Proposition 300 passes.
Mark Killian is also correct when he says that environmentalists have provided the bulk of the money and the energy that has gone into fighting Proposition 300--including the money and energy that put it on the ballot in the first place. Chief among them has been Joni Bosch, a longtime lobbyist for the Sierra Club who chairs Arizonans for Community Protection. Killian and Bosch have been debating SB 1053 for years. Neither has nice things to say about the other. They accuse one another of lying, and Killian drives Bosch crazy by continually mispronouncing her first name--it's pronounced "Johnny"; he says "Joanie."
Bosch and Killian on costs:
How much will Proposition 300 cost to implement? Killian points to Utah, where costs of that state's takings bill are predicted to be negligible. Bosch refers to Wisconsin, where bureaucrats estimated it would cost $10 million per year. Utah's measure has only been in effect for about a year. Wisconsin's was defeated.
Killian likes to refer to a fiscal note prepared by the Joint Legislative Budget Committee, which looked at the departments of Game and Fish, Environmental Quality and Water Resources and estimated that costs associated with enforcing Proposition 300 could be as little as nothing or as high as $457,000 per year.
Bosch points out that JLBC left out a number of agencies, including the Department of Transportation, whose former director wrote, "the cost of this provision could reach into the hundreds of millions of dollars."
Killian counters that ADOT deals with eminent domain, which is not covered in the bill. But in 1992, ADOT's Dave Schmitt testified that only 5 percent of the property his department acquires is through eminent domain.
Bosch and Killian on civil rights:
Killian: "What we're talking about here is protecting people's civil rights, 'kay? Your property rights are part of your civil rights. Always have been, always will be. Even the Supreme Court says that. . . . It's either all or none." Bosch: "He's wrapping himself in the cloak of the civil rights movement that went on for 200 years that has documented abuses, violations and outrages against a whole segment of our population that didn't have any power structure behind them to fix it. And they [the Proposition 300 proponents] can't come up with one good example of a constitutional violation. . . . I mean, sure, it's a civil right, but it ain't the same thing as the civil rights movement."
Bosch and Killian (and Baron) on examples of takings: Now things really get hot. Killian has a number of great examples, situations in which property owners have suffered financial losses as the result of government restrictions. As Bosch points out, all of the examples involve either federal cases or cases in other states.
Proponents have tried to argue that Proposition 300 would have prevented the State of Arizona from attempting to claim title to land along riverbeds that had been controlled by private citizens for years. But the skirmish over riverbeds has only served to further complicate an already Byzantine debate.
Baron criticizes Killian, et al., for producing television commercials that claim Proposition 300 would have allowed people to keep their land--particularly since the state has decided not to pursue its claim to the land in the first place.