A petition requesting a 30-day hold on historic properties prior to demolition is gaining traction within the community, but it’s unclear whether an ordinance requiring such a waiting period would be legal.
Much of the legal concern revolves around Proposition 207, a 2006 ballot initiative that states that developers and land owners have the right to compensation if their property value is reduced in any way.
The proposition, also known as the Private Property Rights Protection Act, was used in a 2008 case in Tucson dealing with historic property rights in Goodman v. City of Tucson.
An amendment in the City of Tucson’s building code changed demolition requirements for any building 45 years or older to require a study, which would delay demolition and possibly end with the city selling the property. The amendment ended up being found in violation of Prop. 207 and Michael Goodman, the Tucson developer who sued the city won the case.
Stacey Champion, a local activist and head of Champion PR, spearheaded the petition, which received 443 signatures in just over 2 weeks. She said she is not too concerned about the possibility of Proposition 207 as a legal issue.
“My suggestion that I made as a go around to Prop. 207 with regard to this would be to get rid of the age requirement and have it apply to all buildings,” Champion said.
Champion said she started a conversation about using a 30-day waiting period after Los Angeles passed an ordinance which puts a 30-day waiting period on properties 45 years or older.
“The petition is basically trying to give the city of Phoenix a tool for their tool box to keep it from happening in the future,” Champion said.
The Circles Records and Tapes building, also known as the Stewart Motor Company building, was recently partially demolished, sparking community outrage and concern from activists about what can be done in order to preserve historic buildings. This petition was among proposed tools to help preserve historic buildings in Phoenix.
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“I think that buildings can be very integral pieces of a community and their story and to not cherish these buildings is a shame and disrespectful,” Champion said.
It’s uncertain whether the petition could be legally viable, at least without Phoenix losing money in relation to possible Proposition 207 infringement.
Tony Misseldine, a land use attorney, believes the petition would not be in violation of proposition 207 or any other legal issues. He said Phoenix has what he calls a historic overlay on land use of historic buildings which requires a historic building review within the process before remolding or demolition.
“They reach out to other groups which provide information on the structure, it’s location, the neighborhood so an evaluation can be made as to just how sensitive it is related to preserving it and restoring it or is it just no big deal and let it go,” Misseldine said.
Paul Bender, a professor and Dean Emeritus at ASU’s Sandra Day O’Conner College of Law, doesn’t see any legal issues connected to the petition.
“I don’t think that reduces the value of land after only a 30 day waiting period where you give people notice of something you plan on doing,” Bender said.
Bender admitted that because Prop. 207 is a new law it’s not well tested so he is not certain on how it would work in this instance.
“My reaction is that a 30-day procedural delay would not trigger that kind of proposition and even if it would the city which has to pay compensation but I don’t think they will have to pay compensation,” Bender said.
Jared Blanchard, a lawyer for the Goldwater institute who specializes in property issues and Proposition 207 believes the petition would violate Proposition 207. He said in order for a demolition hold to be legally binding with Proposition 207 it would have to be related to a health or safety issue.
Blanchard believes holding demolition on historic properties would be in violation, no matter the length of time. He emphasized that the ordinance would not be legally prevented from passing, but it would mean owners would have to be compensated. According to Blanchard, changing the length of time for the hold would make no difference in the violation, but it could change the compensation.
Even if the ordinance is in violation of the proposition, it’s unknown how much the city would owe property owners.
“It depends on the property and depends on the restriction,” Blanchard said. “There’s no hard and fast rule.”
The issue would move to court in order to determine settlements.
The petition is similar to an ordinance suggested by the Phoenix Historic Preservation Commission, which proposed a motion for a 30-day waiting period for demolition on historic properties older than 50 years. The city has yet to take a position on the waiting period.
Contact the reporter at Kara.Carlson@asu.edu.
