Surprises and Lessons from Voter Land Use Laws: The Wild and Wacky World of Arizona Arlan M. Colton, AICP
	Session:Surprises and Lessons from Voter Land Use Laws (March 11, 2:30pm)

What happens when you combine: a liberal constitutional allowance for referendum, citizen's initiative (not to mention recall); growth rates fast outpacing any local government's ability to keep up; historically recalcitrant and conservative legislators, a number of whom think that planning is a taking; a recognition that planning and zoning in some of our major metropolitan areas is a full contact sport, played without helmets or any safety padding whatsoever; a state of wide-open spaces, but where 2/3 of the population live in one county; a constitutional mandate to manage 9.3 million acres of state trust land as if it were still 1912; a somewhat libertarian citizenry who hates sprawl almost as much as they hate density . . . not high density, but any density higher than their subdivision; desert summers that have been known to top out above 120 degrees; a major environmental organization that chooses your state as the prime battleground where it is going to push sprawl back to the wall; and the God given right to split land into five (easy) pieces without benefit of, oh . . . a plat. Welcome to the great state of Arizona. The November 2000 ballot saw two growth-related issues go down to defeat. This was not the first time Arizonans have voted on statewide growth or planning related issues, and last year's legislature guaranteed it won't be the last. To understand what happened last year, we have to take a brief trip back in time. There is a long history of citizen initiative and referendum in Arizona touching on virtually every major issue of the day from medical marijuana to abortion to the lottery. Back in 1992, the Arizona legislature passed a takings bill, SB 1053, modeled largely on President Reagan's Executive Order 12630 on takings. Signed into law by then Governor Fife Symington, the act instructed the attorney general to develop guidelines to determine whether prospective state agency regulations might result in a regulatory taking, it required the agency to prepare an extensive takings analysis, and notify the governor and legislative budget officers of the estimated cost of compensation. Environmentalists and numerous other constituent groups successfully collected signatures to place a referendum on the ballot seeking to repeal the law. Proposition 300 was passed with 60% of the vote in November 1994, overturning the takings legislation. The groundwork was laid for future activism as the state began to deal with both open space issues and growth management. Through the years, while there had been some significant changes to parts of Arizona's planning enabling law statutes, comprehensive reform efforts by the state's planning community got nowhere. In 1988, the state legislature commissioned a report by the Morrison Institute at Arizona State University which addressed growth management issues. Then came the recession. With the economy rebounding, environmentalists tried in vain to even broach the topic of growth management in the mid-1990's at the legislature and were shut down cold. Bills received no hearings; the topic was not discussed. Meanwhile, there had been an increasing focus on Arizona's state trust lands which represent 13% of the land mass in the state. State trust lands were given to Arizona at statehood as a dowry to make money to support various public institutions, primarily the public schools. As cities grew out to the state land, particularly in metropolitan Phoenix, the land was being planned and zoned under the 1981 Urban Lands Act before being sold or leased for development. While the percentage of total state land holdings was comparatively small, values were high and the state school fund prospered. The permanent fund, resulting primarily from the sale of state lands, surpassed the $1 billion mark last year. As Arizona began to prosper after a deep and extended recession, suburban growth rates escalated rapidly. Maricopa County (metropolitan Phoenix) laid claim to the fastest growing county in the nation. Concern over the paving of the desert with a "sea of red-tiled roofs" became the cause of the day, and even former Governor Symington picked up on the theme. He proposed and the legislature ultimately passed the Arizona Preserve Initiative, which sought to sell and lease state trust land for open space, while still meeting constitutional mandates for maximizing revenue to the schools and other public institutions. [Note that the term "Initiative" in this case does not refer to a ballot measure.] Discussions ensued by more moderate land conservation groups and others on more comprehensive state land reform, such as setting aside a portion of the trust for open space and conservation. Changes to the Arizona Preserve Initiative program to make it more workable were made, but there was no state matching money to help local communities and land trusts acquire lands for conservation. During 1997, the Sierra Club, Center for Law in the Public Interest and others began work on what was to become the Citizens Growth Management Initiative (CGMI), bypassing the legislature. In September 1997, there was also an unscheduled change in the governorship. The new governor, Jane Dee Hull, listed open space has one of her top four priorities. Discussions in the governor's office that began about open space gradually evolved into the need to do something about better tools for local planning and growth management. A series of stakeholder meetings was held later that fall with a daylong charette following in December to identify and prioritize urban and rural growth issues. Meanwhile, CGMI drafts floated around throughout the fall and early in the winter of 1998. A lot of people, including the Governor, realized though that some of what was being developed in the CGMI was worthy of discussion, but there was deep concern about a number of the provisions, not the least of which were mandatory growth boundaries for virtually every Arizona city and town, and each of the fifteen counties. Although the CGMI was often compared to the Oregon Land Use model, the general concept of growth boundaries as a growth management tool was virtually the only similarity. Even the implementation of the boundaries was far more rigorous. Ultimately, the backers of CGMI failed to get enough signatures to get on the 1998 ballot. When they finally got the wording down, they simply had run out of time. Because of the plethora of citizens initiatives and referendums, professional petition passing is a growth industry. However, the closer one gets to the petition submittal deadline, the more costly the price per signature. Even though it didn't make it to the ballot, the CGMI was a threat throughout the 1998 legislative session. As a result, it did accomplish one major task: it forced the debate on growth management in the legislature, in the newspapers, and in the business community. Building upon the December charette, the Hull administration developed a legislative package which became known as the Growing Smarter Act of 1998. The legislature narrowly passed the Growing Smarter Act of 1998 -which consisted of three parts: significant changes to municipal and county planning enabling statutes to give local government more tools (but not more money) to plan for growth within the existing framework of comprehensive planning; the creation of a 15 - member Growing Smarter Commission to tackle the harder issues, everything from regional planning to state land management reform, in a report that was due September 1, 1999; and potential funding for open space. It asked voters to approve $220 million over 11 years primarily for matching funds for conservation of state lands under the Arizona Preserve Initiative. Adding to the intrigue, the legislature, assuming that the CGMI would also be on the ballot in 1998, included a "poison pill" in their Growing Smarter open space funding referendum, now known as Proposition 303. If CGMI passed, the matching funds for open space would be repealed. While the planning provisions of Growing Smarter would remain intact, the referendum also prohibited the legislature from, among other things, ever mandating that local governments establish growth boundaries. Note that the chances of this happening were somewhere between slim and none, and that local governments were not prohibited from taking allowable growth management actions on their own. Proposition 303 passed, with matching money becoming available in July 2000. The first sales of state trust land for conservation occurred just last fall. 1999 saw a great deal of effort transpire in developing the state's growth policy. The Growing Smarter Commission, along with eight subcommittees convened, tackling all the issues identified in the Growing Smarter Act. They held public workshops all over the state, and submitted their report to the Governor and legislative leaders on schedule. The Commission, composed of eight legislators, five gubernatorial appointees and two state agency heads, developed a report containing a significant number of recommendations, tackling traditionally more contentious issues from the problems of wildcat subdivisions to private property rights, and urban infrastructure service boundaries to regional planning. Most of the recommendations made by the Growing Smarter Commission made it into either legislation or a proposed constitutional amendment collectively known as the Growing Smarter Plus Act. Virtually all the changes affecting local government in Growing Smarter Plus were enacted into law during a special session in early 2000. The constitutional amendment which proposed significant changes to the management of state trust land, primarily in open space, was placed on the November 2000 ballot as Proposition 100. This time, there was no poison pill attached to the state's proposal. Meanwhile, the Sierra Club and their allies made modest modifications in the CGMI and brought forth CGMI II. Much better organized this time, the backers of CGMI II qualified it for the 2000 ballot with polls suggesting that it would win overwhelmingly with at least 70% of the vote. It became Proposition 202. Meanwhile, the constitutional amendment from Growing Smarter Plus became Prop 100, and it too was overwhelmingly supported by similar margins in early polls. And then the fun really began. On November 7th, Arizona voters trounced CGMI II and, by a considerably narrower margin, also turned back the Growing Smarter constitutional amendment on state trust lands. So what happened? CGMI II would have mandated that all communities of more than 2500 people and all counties establish and maintain tight growth boundaries within growth management plans that would be adopted by ordinance in 2003. Voter approval of these plans would be required within the jurisdiction, or mandated interim growth management regulations would remain in place. It would have also given wide latitude for counties to regulate wildcat subdivisions, all entities to charge impact fees, and in fact, mandated that all development pay for the full cost of very broadly defined additional public facilities. A conflict between a jurisdiction's comprehensive plan and its growth management plan would be settled in favor of the latter. The CGMI would have empowered any person (including organizations) to file suit to enforce the act, a major issue of contention during the campaign. Polls showed CGMI II leading by a wide margin throughout the spring of 2000, but after a campaign in which the proponents were heavily outspent, the measure failed 70-30%, carrying none of Arizona's 15 counties. Television advertisements by CGMI supporters depicted bulldozers marching down the street, focusing on uncontrolled development and calls to take power away from the big developers. Opponents argued that CGMI was not local control at all, attacking the lawsuit provisions, the inability to extend public services to one's lot outside a boundary, and increasing densities they said would ultimately result. The sound bite was "It goes too far!" But the Growing Smarter Plus constitutional amendment was also defeated, but by a narrower margin of 52-48%. Among other things, it would have provided several mechanisms to create open space. Primary among the proposition's measures was to remove 3% of the lands from the revenue production obligation and set it aside for open space. Arizona, building on a 1996 Colorado constitutional amendment, would have been the first state in the union to treat any of its trust land as permanent open space, however Congress would have also had to approve a change in the Arizona Enabling Act to permit this to occur. The constitutional amendment was killed by a combination of three elements: conservationists and open space advocacy groups who felt the measure did not go far enough, leaving too much state land open to development; rural and conservative interests who did not want any dilution of the trust revenue mission; and confusion between CGMI II and Growing Smarter Plus. The constitutional amendment was opposed by groups who did not want any dilution of the trust revenue mission, and more significantly, by many conservation and open space advocacy groups who felt that it did not go far enough. They felt that the work of the Growing Smarter Commission in this area was seriously diluted in the constitutional amendment, placed on the ballot by the legislature. Proponents countered that it was a key part of the larger Growing Smarter effort, provided multiple ways to protect open space, particularly in urban Arizona, and that trust land in rural Arizona was not nor would it likely ever be subject to the same development pressures. So, has Arizona seen the end of voting on growth management and open space issues? Not a chance. Even if there are no more statewide initiatives or referendums, Growing Smarter Plus insured that Arizona will continue to pioneer in planning by direct democracy. Among its myriad of other provisions, Growing Smarter Plus requires that municipalities over 10,000 people (or above 2500 people, if growing at an annual growth rate of at least 2%) must submit their new general plan to voters for ratification. Opposed by most planners, the plebiscite requirement was an outgrowth of public comment received at the workshops conducted by the Growing Smarter Commission in the summer of 1999. It was also felt to be necessary by Growing Smarter framers to counteract the voter approval requirement for growth management plans in the environmentalist's CGMI. Furthermore, the public's demand and, in many parts of the state, apparent willingness to pay for open space is unlikely to wane any time soon barring a severe economic downturn. The Sonoran Desert Conservation Plan in Pima County (metro Tucson) , the creation of the Sonoran Desert Preserve and passage of a sales tax in the City of Phoenix, significant open space planning and financing mechanisms approved in Scottsdale, Fountain Hills, Prescott and other jurisdictions will continue in other areas. It is likely that conservation groups who played a role in the defeat of Proposition 100 primarily because they felt it was too limiting in its scope will propose a new constitutional amendment in 2002. Their success may be dependent on healing some wounds among former political allies and not repeating the mistakes of CGMI backers who perhaps asked voters for too much at one time. The extent of any proposal should it occur remains to be seen, but it cannot ignore that there will still need to be congressional action on the Enabling Act. New tools for open space and the conservation of state trust land in Arizona may or may not be around the corner, once again. Stakeholder discussions are also going on at this very moment regarding this "Son of Prop 100" (the failed state lands open space effort) in an effort to get to a consensus open space constitutional amendment that multiple groups can support and pass in 2002. Even if consensus is reached, it is unlikely a constitutional amendment will go through the legislature as conservation groups are afraid it will be severely weakened. So, once again, a citizen's initiative can be expected. As for the Sierra Club, the Center for Law in the Public Interest and others, it is unclear if and how they are going to proceed with their proposals, particularly after a November election that also saw some very conservative legislators defeated and the Republican controlled state senate move into a Republican-Democrat tie. As they wait for the next shoe to drop, Arizona planners will be busy meeting state deadlines to implement wholesale changes to their comprehensive plans and planning and zoning processes required by the Growing Smarter Acts. Compliance deadlines are December 2001 for larger communities and counties, and December 2002 for smaller ones. Finally, Governor Hull last month appointed a 28-member Growing Smarter Oversight Council to monitor and evaluate the state's growth management efforts. Among other things, it is to "identify obstacles to implementation of the Acts and suggest refinements to facilitate implementation." This is a standing body, and has been given a fair latitude for discussion. The Council met for the first time on March 7th. Make no mistake . . . Arizona is still a place where private property rights are very important and the cry resonates that virtually every land use regulation is a taking. Indeed, there are parts of Growing Smarter that planners and others dislike because of how far the acts go in accommodating the private property rights movement. By the same token, this is not the end of the road for planning legislation. Growth management has been let out of the box in Arizona. There is no question that it will continue to evolve over time. The following document was prepared for the first meeting of the Growing Smarter Oversight Council, and is provided to give a synopsis of the content of Arizona's Growing Smarter Acts. For further reading, refer to articles co-authored by John DiTullio and Arlan Colton in the February, 1999 and January, 2001 issues of Planning Magazine. Presentation to Growing Smarter Oversight Council March 7, 2001 Arlan M. Colton, AICP This brief synopsis of Arizona's 1998 Growing Smarter Act (GS) and 2000 Growing Smarter Plus Act (GS+) is designed to provide simply an overview of the acts relative to cities, towns, counties and state trust land. It does not include, however, state trust land matters that were addressed in the proposed constitutional amendment which was not approved by the voters last November. This document recognizes that there are interpretive questions that have arisen over certain parts of both acts, and that these may be a matter for the Council to consider. The Council may also at some point wish to consider those recommendations of the Growing Smarter Commission, as well as that of its subcommittees, that did not yet make it into legislation. The backbone of the GS and GS+ are the local general and comprehensive plans. This summary concentrates more heavily on the impact of GS and GS+ on these plans and their implementation. Prior to the adoption of the Growing Smarter Acts, each city and town in Arizona was required by state enabling statutes to create and adopt a general plan. Each county was required to create a comprehensive plan. For municipalities, the requirements varied depending on the size of the community, but each had a number of elements it had to address in the plan. Counties each had the same planning requirements, although interpretations of the statutes have varied widely between the counties, as the requirements were listed, but less well defined. The guiding principles behind what became the GS were as follows: Growth may be inevitable, but development must be planned and managed. Land-use decisions are best made locally, but municipalities and counties need the right tools to make them. The focus should be on how to get more mileage from existing plans. It is important to recognize property rights, and avoid vague mandates and criteria that beckon ... lawsuits1. General and Comprehensive Plans GS and GS+ added a combined five new elements to the general plans of municipalities and comprehensive plans of counties. For municipalities over 10,000 people (or above 2500 people, if growing at an annual growth rate of at least 2%) and counties over 125,000 people, they are mandatory; for others they are optional. These five new elements are: Open Space Growth Areas Environmental Planning Cost of Development Water Resources In addition, the following elements previously required were modified or clarified in some manner by the acts: Land Use Circulation Housing Public Services and Facilities Conservation, Rehabilitation and Redevelopment The latter three apply specifically to cities over 50,000 people, but are optional for other municipalities and counties. A Power Point presentation exists and, with minor modifications, can be made available to the Council at a future date on the intent and specific changes in all the above plan elements. As planning and zoning regulation can be complicated, this may be useful to understand the nuances of the legislation. In addition to the plan elements, the governing body of each jurisdiction must adopt written procedures for effective, early and continuous public participation. The statutes outline minimum provisions explicitly, and the procedures apply to plan adoption AND major amendments to the plan. Consultation, along with an opportunity to provide official comment, with a broadened list of public and private entities is required (including the Arizona Department of Commerce), and, if applicable, coordination with State Land Department conceptual land use plans (discussed below). Such consultation also applies to major amendments to the new plan. A 2/3 vote of the governing body is required to adopt a new plan or re- adopt existing plan as well as a major amendment to the new or re-adopted plan. The 2/3 vote does not apply to major amendments to previously adopted plans prior to compliance with the GS. GS+ added that municipalities that are required to do the five new elements must also have their plans ratified by a vote at a general election. If the voters fail to approve the plan, the existing plan remains in effect until a new plan is approved by voters. Major amendments to each jurisdiction's plan, defined in that plan with statutory guidance, must be held in a single public hearing in the same calendar year as the request. They are subject to referendum as is each plan not required to be ratified by voters. General and comprehensive plans are effective for up to ten years from the adoption date. A new plan must be developed and adopted on or before the tenth anniversary of a Growing Smarter compliant plan, or the current plan may be re-adopted. In 1999, separate legislation in between the two GS Acts changed the timing requirements for compliance with the 1998 Growing Smarter Act. Communities under 75,000 people must meet the deadline of December 31, 2002. Larger communities and counties must be in compliance at the end of this calendar year. Rezoning To ensure that the plan is really guiding development, all rezoning cases must conform to the plan to be considered by the jurisdiction. To be considered in conformance, a rezoning must be within the range of land uses, density or intensity shown for that parcel in the land use element. GS+ codifies what is in common practice in a number of communities and counties. A citizen review process for notification and input on rezoning applications requiring a hearing must be adopted by ordinance, creating an opportunity for affected individuals to comment on a rezoning proposal prior to it reaching its first public hearing. Other Planning tools While these tools are significant, they are only briefly described below. GS+ authorized municipalities and counties to create infrastructure service area boundaries limiting the extension of publicly financed water, sewer and street improvements. GS+ provided a minor subdivision option for subdivisions up to ten lots. Multi jurisdictional regional planning zones are authorized for all jurisdictions outside Maricopa and Pima Counties. Municipalities, under GS+, may create infill incentive districts that meet certain criteria and provide for a variety of incentives for new or re-development. Voluntary rural planning areas may be created on petition from a majority of landowners in a a specified unincorporated area, except in Maricopa and Pima Counties. Counties are authorized to enter into development agreements. Counties are authorized to provide for impact fees to offset capital costs for water, sewer, streets, parks and public safety facilities, as long as the county also has an adopted capital improvement plan. With limitations, counties are empowered to regulate creation of lot splits of parcels, any one of which must be 10 acres or smaller in size. If the splits meet certain minimum requirements, they must be approved. A Development Right Retirement Fund was authorized by GS+ (although not funded) for the purpose of making grants to state agencies, local governments, land trusts and private individuals to purchase, lease or transfer development rights from private land. Applicants who provide a match have a preference, but a match is not required. Annexation On or before the date that a municipal governing body adopts an ordinance annexing territory, GS+ requires it to have an approved plan, policy or procedure to provide the annexed territory with appropriate levels of infrastructure and services to serve anticipated new development within ten years of the time that the annexation becomes final. (This requirement is annexation specific, and cannot be satisfied by including a generic policy in the general plan.) Property rights issues GS attempted to clarify previous legislation to wit that counties must have the written consent of the property owner in order to initiate a rezoning of Aland that changes the zoning classification of the land or that restricts the use or reduces the value of the land@. In GS+, for counties, this section received an addition effectively stating that if a county has an open space element or growth element in its plan, that owner consent is also required to rezone a property to open space, recreation, conservation or agriculture. For municipalities, there is no prohibition on downzoning, but the new consent provision is otherwise the same as for counties GS also included a provision that reasonable access to private property may not be denied by the state or a political subdivision. GS+ provided private or state land cannot be designated in an open space or growth area element as open space, recreation, conservation or agriculture without either the written permission of the landowner or the plan alternatively designating or the existing zoning allowing a density of at least one house per acre. If the landowner is the prevailing party in any action brought to enforce this subsection, a court shall award fees and other expenses to the landowner. Prior to the GS Acts, local governments were required to set up an administrative hearing process to hear property owner appeals to dedication and exaction requirements as conditions to approval of the use, improvement or development of property. GS+ expands this process to include appeals of takings alleged in conjunction with the adoption or amendment of a zoning regulation, with the burden of proof on the local government. If that burden of proof is not met, the hearing officer makes a written recommendation to the legislative body within five days of the hearing. The statutes now also clarify that for all hearing officer appeals, the local government is to submit a takings impact report (not defined) to the hearing officer. If not satisfied with the decision of the hearing officer, the property owner can appeal to superior court. If the property owner prevails, the city or town may be required to pay attorney fees and/or damages. GS+ mandates disclosure for property created by lot splits. The seller of 1 to 5 unsubdivided parcels of land must provide a written affidavit of disclosure covering 12 attributes about the property to the buyer at least 7 days before the property is to transfer. The buyer acknowledges receipt of the affidavit and has 5 days to rescind the deal. The executed affidavit is recorded at the time of the sale, and may be superseded by new affidavits with new information in subsequent sales. The affidavit covers legal and physical access, floodplain and flooding issues, existence of utilities to the property, existence and status of water well(s) and septic system, percolation tests, emergency access. Additionally, the affidavit must say whether the parcel meets all minimum applicable zoning requirements and has demonstrated legal and physical access. Any attempt of the seller to waive error and omission liability is not valid on the buyer. State Land issues In addition to placing on the November, 1998 ballot a successful referendum (Proposition 303) that authorized $220 million primarily for matching funds over an 11 year period, the GS included several changes to state trust land management statutes summarized as follows: The State Land Commissioner is required to create conceptual land uses plans for all urban state trust land, optionally for other state trust land, and consult with the appropriate local jurisdiction and regional planning organization regarding integrating the conceptual plan into the general or comprehensive plan. The State Land Commissioner is required to create five year disposition plans for all state trust land, and update them annually, in consultation with the appropriate local jurisdiction and regional planning organization. An urban land planning oversight committee appointed by the Governor is authorized review and make recommendations for approval regarding the final conceptual land use plans and final five year disposition plans. The State Land Department is authorized to sell development rights at public auction under certain conditions. The State Land Department is authorized to sell at a single auction conservation lands and non-conservation lands. The State Land Commissioner, previously allowed to entire into participation contracts on sales or leases of land, may now charge a fee to retain consultants to assist in preparing or negotiating such a contract. Significant changes were also made to statutes governing State Parks regarding operation of the land conservation fund in conjunction with Proposition 303. (State Parks manages the grant program.) As Proposition 100 did not pass in November, 2000, none of the associated statutory changes in GS+ were enacted. Proposition 100 contained a number of provisions, most of which addressed open space issues on state trust lands. Note that with the exception of one provision, each provision required subsequent changes by Congress of the federal Enabling Act for Arizona. Following are those open space provisions: the creation of an Arizona Conservation Reserve which would have allowed the set aside of up to 3% of the trust land holdings, primarily in urban areas of the state; conservation based government-to government land exchanges where, at a minimum, conservation would result on state lands being traded; longer leases to farmers and ranchers in turn for the highest degrees of land stewardship ultimately to stem the tide of these rural areas from being split up and developed; and recognizing the contributory value of adjacent open space to developable trust land by allowing the state to donate land for conservation purposes to a local government if it is shown that the donation makes adjacent trust land available for future development more valuable. There were other items in the proposed amendment as well that would have changed business as usual in state trust land management. Although Colorado in 1996 authorized the set aside of 300,000 acres of conservation quality trust land for its long term economic value, Arizona would have been the first state in the union to absolutely change its trust land mission. Notes: 1. "Arizona Gets Religion", by Arlan M. Colton, AICP and John DiTullio, AICP. Planning Magazine, February 1999. [back] Author and Copyright Information Copyright 2001 by Author Arlan Colton has spent over 20 years in the planning profession, after graduating from the University of Arizona with a Masters degree in urban planning, and a Bachelors degree in public administration. He is currently in private practice in Tucson and is an adjunct lecturer at the University of Arizona School of Planning. He has worked in a broad range of positions for Pima County, the Tucson Airport Authority, and the Arizona State Land Department both in Tucson and in Phoenix. Most recently, he directed the Arizona Preserve Initiative, a land conservation program, for the Land Department. He staffed the 1999 Growing Smarter Commission and helped to develop portions of the 1998 and 2000 Growing Smarter Acts. He is a member of the American Institute of Certified Planners, a past president of the Arizona Planning Association, and a former national board member of the American Planning Association. Arlan M. Colton, AICP 520-323-7414 azplanner@aol.com