Waiver form adopted for rezoning requests

Proposition 207 has county seeking to protect itself from possible claims

KINGMAN - Proposition 207 is causing a stir among county and city governments and local planning and zoning boards. The proposition was a topic of discussion during the Feb. 14 Mohave County Planning and Zoning Commission and the Feb. 5 Board of Supervisors meetings.

During the Feb. 5 Board meeting county supervisors adopted a waiver form for property owners to sign when they request a zoning change or a conditional use permit. The waiver form, proposed by P&Z Director Christine Ballard during the meeting, says the property owner will not hold the county responsible for any loss in value to his or her property due to a change in zoning that they request.

Proposition 207 was adopted by voters in November and went into effect in December. According to information put out by the Arizona secretary of state during the election, Proposition 207 was designed to protect property owners from abuse of eminent domain and the devaluation of property by local governments.

The proposition also stated that if the value of the property or the property owner's rights to use, divide, sell or possess the property were damaged by a land use law passed by the state, county or city, the property owner could seek compensation from the entity that enacted the law.

Ballard told both the Board and the Commission that this last part of the proposition poses a potential problem for local governments.

The problem is a property owner can come to the county and request a zoning change, conditional use permit or other legislation that affects his or her property. The property owner then finds out that the request dropped the value of his or her property. That property owner can file a claim against the county for devaluation even though he or she requested the change.

Ballard said at both meetings that devaluation due to a rezoning or a conditional use permit is unusual but that it does happen sometimes.

She said that it is being recommended to local governments that they adopt a waiver form. The city of Kingman has already done so.

Deputy County Attorney Robert Taylor said the waiver applies only to the specific zoning request by the property owner. If a property owner requests a zoning change from commercial to industrial, the waiver would only apply to that change. If the property owner returns to the planning department and requests another zoning change or conditional use permit, another waiver will have to be signed, he said.

"It is not a blanket waiver. I can understand the reluctance of some property owners to sign a blanket waiver giving away all their rights to a claim," he said.

"I think there's been a lot of stuff in the newspaper lately about it pertaining to all types of land use regulation," Ballard said.

According to the language of the proposition, certain types of land use laws are exempt, such as rules governing public health, safety, fire and building codes, health and sanitation, transportation or traffic control, solid or hazardous waste, pollution controls and public nuisance laws.

Mohave County and Kingman are not the only local governments looking at waivers for protection from claims. The Associated Press reported recently that Pima County has already started a waiver program along with the cities of Marana, Sahuarita and Tucson.

"I think that the way most Arizona communities are looking at it is that you request the rezone, and you should take full responsibility for whatever happens or whatever the eventual outcome of that rezone is and not try at a future date to have the county take some responsibility for anything that did devalue the property," she said to the commissioners and supervisors.

A property owner not signing a waiver would not stop the planning and zoning process, Ballard said during the Commission meeting. However, decision-makers could look twice at a rezone or conditional use permit request if it didn't have a signed waiver attached.

Adopting a waiver could also have its drawbacks, though. According to the proposition, any waivers created by a local government and signed by a property owner are permanently attached to the land. The county has to create, track, record and store all those waivers.

"For local governments, how we are going to administer Prop. 207 is still a work in progress," Ballard said.

"Most likely, this administrative processing will be the most expensive legacy of Prop. 207," she said.

Ballard said the county was already looking at tracking the expense of the process.

Planning and Zoning Commissioners will start seeing waivers at their March meeting. Ballard said by April nearly all the requests that come before the Commission will have a waiver attached.

A claim form has been developed as well. The claims will be processed through the clerk of the Board's office. The office will process the claims just like any other claim against the county, Ballard said.

There are still a few things the county needs to follow up on, she said.

For example, if a claim was filed and found valid, one of the county's options would be to grant a waiver for that piece of property from the one specific regulation noted.

Currently, the county does not have a process in place for that. There are also some real issues with how to grant a regulation waiver for a piece of property.

The county has 90 days to decide and grant a regulation waiver.

"There are some real issues because regulations are put into effect through legislative processes. How do you grant a waiver through a legislative process without going back through that process? We don't know the answer to that yet. There are options available to us. It's just which one is the best one to pick," Ballard said.

Creating a record keeping system that will last into the future was also an issue, she said.

"These waivers, both the waiver of claim and waiver of regulation, run with the land. So we've got to keep records of these forever. The next question is, how do you do that?" she said.

Ballard said the county was discussing the matter with other counties through the County Supervisors Association and other means. It has also spoken to representatives from Oregon, which has a similar law on its books.