Horizon, Host: Ted Simons

February 28, 2006


Host: Michael Grant

Eight-Cronkite Poll


  • The issue of allowing a United Arab Emirates company to control ports in America has become a political hot potato for the Bush administration. Find out what Arizonans think about that issue and others, such as photo radar, in the latest Eight-Cronkite Poll. Poll Director Bruce Merrill and Assistant Tara Blanc provide analysis.
Guests:
  • Bruce Merril - Director, Eight-Cronkite Poll
  • Tara Blanc - Assistant Director, Eight-Cronkite Poll
Category: Cronkite-Eight Poll

View Transcript
Michael Grant:
Tonight on Horizon, it is a political hot potato for the Bush administration. The issue of using an United Arab Emirates company at American ports. See what Arizonans think about that and other issues in our latest poll. Plus a host of bills dealing with eminent domain are making their way through our state's legislature. After the U.S. Supreme Court's decision on the issue. Those stories next on Horizon.

Announcer:
Horizon is made possible by The Friends of Channel 8, members who provide financial support to this Arizona PBS station. Thank you.

Michael Grant:
Good evening. I'm Michael Grant. Welcome to Horizon. Arizonans like photo radar but they do not like a deal to allow an United Arab Emirates company to take over ports in the U.S. those are a couple of results of the latest eight-Cronkite poll. The poll was conducted February 23 through the 26. Of 375 registered Arizona voters. It has a margin of error of 5.1\%. Here are the results.

Michael Sauceda:
The eight-Cronkite poll found that 68\% of those surveyed favored photo radar on city streets. 24\% were opposed. We asked participants whether cities should be allowed to regulate speed on state highways or freeways. 72\% says photo radar is an effective way to reduce speeding while 20\% it was not. Arizona has been levied fines for failing to come up with the English Language Learning issue. 7\% says the governor bears most of the part. 17\% said both parties bear equal responsibility. 56\% didn't have an opinion. We asked people whether they knew why a federal judge imposed fines against the state of Arizona . 52\% said they knew why. 48\% said they did not know why. However, 78\% of those who said they knew why could not put the reason in their own words. A bill being proposed by the state legislature of Arizona would allow students to opt out of work if they believed it opposed their religious beliefs. 58\% opposed that bill, 38\% favor it. 58\% said they were against allowing a United Arab Emirates company to take over operations at 6 U.S. ports. 234\% support the move.

Michael Grant:
Joining me to talk about the results is the poll director, Bruce Merrill. Also here is Tara Blanc, assistant polls director. Hello to both of you.

Tara Blanc:
Hello.

Bruce Merrill:
Hello, Michael.

Michael Grant:
One thing we found out about in this poll is people are really in with photo radar, Bruce.

Bruce Merrill:
I don't think they're in love with photo radar. I think they're scared to death to get on the 101. I think it's primarily a safety issue, although we did ask people about photo radar in general. About two out of every 3 Arizonans feel that it is helpful to use it in the city. And we kind of explained exactly what was happening in Scottsdale where the city of Scottsdale is regulating the speed of the cars on a state freeway and how they felt about that. Again two out of every 3 people thought that that was fine.

Michael Grant:
Yeah. There was really not much of a -- there was some but there wasn't much of a distinction between well, my words, not the poll's, do you like it on city streets or freeways. The result was about the same.

Bruce Merrill:
I think so. I thought maybe at first, mike, the issue might really be whether or not the city had the right to be regulating speed on a state highway. Very few of the people we interviewed really saw it that way. It turned out to be a safety factor that people think that radar is an effective way to reduce speed, and therefore they support it.

Michael Grant:
Yeah. I was going to point out that that was another poll question was, well, do you think it's effective. And people overwhelmingly said, yes, we think it's effective to impact speeding.

Tara Blanc:
I think we were a little surprised by how many people said that they believed that photo radar is effective in enforcing and regulating speed. A lot higher than I would have expected it to be.

Michael Grant:
Kind of a strange result. We obviously asked several questions on the English language learning issue which has been front and center for two or three months. Now, explain -- we got a result of, do you understand what the issue is all about of 52 -- 52\%, yes, I did. But what happened then?

Tara Blanc:
What we did was the way we phrased the question, we asked each respondent whether they knew why the federal judge had imposed a fine of Arizona , the half million dollar a day fine. It was a yes or no question, basically. Of those people who said yes that they did know why, then we asked them to explain in their own words why the judge imposed the fine. The net result was that 44\% of the people we talked to were actually able to identify what the fine was for. Another 8\% had said that, yes, that they knew what it was for but then they couldn't tell us. And then another, what, 48\% said no outright. So when you add the 8\% that couldn't tell us what it was for and the 48\% who said they didn't know what it was for, basically we netted about 44\% of people who really could identify what was associated with the fine.

Michael Grant:
Then we said, okay. To the extent you either know the issue or not.

Bruce Merrill:
Are confused.

Michael Grant:
Who do you blame. Whose fault is this. And that was kind of a mixed bag.

Tara Blanc:
It was a mixed bag. Of the people who did know what the fine was for, about twice as many blamed -- want to say blame -- felt fault lay with a with the state legislature as with the governor. But that was only 14\% that said the state legislature was to blame, 7\% said -- and that's of the overall group of people we talked to. If you looked at just the people who said that they knew, then you basically double those. It was 32\% who blame the legislature and I think 16\% who said they blame the governor. But 38\% of the people who knew what it was about said they were equally to blame, that they really couldn't place blame.

Michael Grant:
Now, this one if you drill down on the data you found out some significant partisan differences in who you thought was to blame depending upon what your party registration.

Bruce Merrill:
What a shock in Arizona , isn't it?

Bruce Merrill:
Absolutely. What happened is -- when we asked people, well, who do you think is responsible for not being able to resolve this conflict, not surprisingly the republicans tended to feel that the governor was responsible, and the democrats felt the republican-controlled state legislature was responsible. But I think that the important thing is what Tara said. Keep in mind that about 4 out of every 10 Arizonan said both of them are at -- and these are people that knew what the issue was. So about 40\% said both of them are to blame.

Michael Grant:
It is interesting, though, getting back to the first point, that because really this issue has occupied an awful lot of press attention over the past couple, three months, that the overall level of familiarity with the issue would be so low.

Tara Blanc:
Well, we were talking about that earlier. And it might be in how you look at it. You could say that almost half the registered voters we talked to actually were familiar or did have some knowledge of what the issue was about. And considering that it's an issue that if you don't have children in school or perhaps the English Language Learner thing is not something that would catch you, even though it's costing the state a lot of money and we would suggest that it's something people should be aware of. But I think you could look at it as saying half the voters knew about the issue, maybe that's better than what you would find on other issues.

Michael Grant:
Maybe it's a Dirk Zen thing. A billion there, a billion there, you start talking real money. I'm not shocked by the result on the UAE control of ports issue.

Bruce Merrill:
No. It's just another in the series of bad information things for the president. Even in republican Arizona by a 2-1 margin people did not want that approved here in the state of Arizona . And I think the most telling thing, Michael, is that two-thirds of the republicans with a position that had an opinion on it actually are opposed to bush's position. So if you look at what's happening in the national polls today, 34\% approval rating, the lowest since he's been in office, I think he's just had a whole bunch of very bad press. And that's beginning to show.

Michael Grant:
I guess I was most surprised by the administration's just stiff support of the deal in the face of what obviously has been a pretty significant public outcry.

Bruce Merrill:
I think that's been kind of a growing problem for the president is that there is kind of a public perception out there that the president kind of does what he wants to do regardless of if anybody likes it or not. That's kind of hurt him a little bit.

Michael Grant:
Second term president Bruce Merrill.

Bruce Merrill:
Oh, no.

Michael Grant:
Thank you very much. Good to see you again.

Tara Blanc:
Thanks, Michael.

Michael Grant:
Nearly a couple dozen bills involving eminent domain being considered in the state's legislature, part of the reason for the flurry of legislation the result of the U.S. supreme court's decision in Kelo versus city of New London, Connecticut. That decision seemed to open the way for cities to seize private land for other private uses. Arizona has seen quite a few battles involving eminent domain. Producer Larry Lemmons shows us some examples.

Larry Lemmons:
Sometime in the near future this site just southwest of the 101-202 intersection in Tempe will look much different. The Tempe marketplace will be comprised of 117-acres of retail space. After the pollution from three unlined landfills is cleaned up. This was also the site of a contentious eminent domain battle. More than a dozen land owners including Troy Valentine had sued the city of Tempe and Mara Vista -- a Maricopa County judge had ruled in the landowner's favor. The city threatened to appeal. But earlier this month the final holdout land owner had settled on a deal. Property rights advocates claimed victory because in the end Vestar development company secured the land through private negotiation rather than through the city council.

Tim Keller:
Both the development and redevelopment occur every day in Arizona and across the nation without the use of eminent domain. Individuals who want to develop property and they can acquire a particular parcel within their designed project can simply build around them. It's not unusual. Unfortunately the developers in the cities and towns don't know how to negotiate. They go in and declare, we need every single parcel here. They don't make any exception for holdouts.

Larry Lemmons:
Vestar went so far as to hire the former director for the institute of justice Arizona chapter-- Tom Liddy.

Tom Liddy:
I agreed to participate in this because it is so different from the other case is that we're sick and tired of developers going in there and riding rough shod over property owners. Vestar has been working hard with the property owners to give them 140\% and in some cases more of their assessed value. That's the way that you make the system work with dignity.

Larry Lemmons:
The institute for justice represented bailey's brake system and that business's battle with the city of mesa. Bailey had claimed the city was trying to seize his property in order to put an ace hardware on the site. Bailey fought and eventually won. He remains on his site. These are but two local examples of eminent domain showdowns that are occurring all over the country. The powers of eminent domain are granted to the government in the U.S. and Arizona constitutions. It is the power to seize private land for public benefit. A public benefit can be defined find a number of ways. Last year the U.S. supreme court ruled that local governments may force land owners to sell for private development. The Arizona constitution's definition of eminent domain would prohibit that, but a flurry of legislation limiting eminent domain power is now circulating through the legislature.

Tim Keller:
The U.S. supreme court has said that under the fifth amendment to the U.S. constitution there is tremendous deference given to the legislative body in determining what or what does not constitute a public use. And we believe in Arizona that question should be determined by the judiciary as to what or what is not a public use. And if they won't do it then the legislature needs to step up and craft more narrowly - defined issues as to when they can seize property.

Ken Strobeck:
I think what happened in the case of Kelo versus new London is something that happened in Connecticut and happened back in the east coast. The scenarios are very different than they are in the west. The Arizona constitution already has more protections than the federal constitution. And the cases in which -- or the law in which Kelo was decided would probably not have got tone first base had it been an Arizona case.

Larry Lemmons:
Using eminent domain is not the only way municipality come up over landowner either. The recent Donald Trump case into the Camelback corridor is an example of how zoning can spark controversy. The Phoenix city council had voted to change zoning regulations for that area to allow Trump to construct a high rise which would have impacted some local property owners. The residents group gathered enough signatures to put the issue on the ballot whereupon the city overturned its original decision. The land owners had won. Currently zoning issues are part of the eminent domain issue due in some part to success in Oregon with measure 37.

Ken Strobeck:
It says if there's a diminution of value due to regulation that the property owner can either claim for of waiver of the regulation or for compensation. There are about 2500 claims that have been filed in the Oregon supreme court just within this week ruled that that measure was constitutional. So it will be going forward and people will be filing claims and either getting paid or getting waivers for it.

Tim Keller:
A takings is a takings is a takings. There are physical takings we're talking about but the government also uses regulatory authority to take the value of somebody's property. There's one proposal that would address both issues at the same time which would e essentially allow one land owner whose property was devalued as a result of down zoning or something to come in and request compensation for that loss of value.

Ken Strobeck:
When the measure that they're talking about says any comprehensive plan or zoning change. So what you essentially would be saying is, if you ever update or change a zoning ordinance and somebody claims that it diminishes the value of their property, whether it does or not all they have to do is file this claim and then they theoretically are initiated to compensation or judicial action to determine if it is a taking or so forth. So what this really is an open invitation to litigation. Lawyers will be fully employed deciding these issues for years.

Tim Keller:
We understand that when government takes somebody's home to build a road, that home owner needs to be compensated. What we're saying is that if government believers there is some value to the rest of society as a result of zoning that that zoning impacts that property owner in such a way they lose value that society should probable compensate that landowner.

Michael Grant:
Joining us now to talk about the eminent domain legislation being studied at the state's capitol, representative Chuck Gray who has sponsored some of it and representative Tom Prezelski. Welcome to you both.

Michael Grant:
Representative Gray, I think I want to move to a couple of examples. But there are a lot of bills out there but there's really one product that is most likely to passed?

Chuck Gray:
That's right, Michael. The product that the legislature is moving through the process that will be the one that we send to the people is house concurrent resolution 2031. And that bill will be the premiere bill that we put forth to protect property owners' property.

Michael Grant:
Okay. So if you're interested in this subject, that's the one that you ought to keep watch.

Chuck Gray:
That's the one. And I'm excited about it. It's a good bill.

Michael Grant:
We'll get to that in just a second. But representative Prezelski, I take it you're not enamored of that bill or these changes.

Tom Pretzelsky:
Well, no. I believe the real solution in the issue of eminent domain is simply having a more open government and more responsive government and more participatory government. You'll notice a lot of these problems haven't emerged in Tucson or flagstaff where people are actively involved in the community. They have occurred in places like mesa and Scottsdale, places where people feel very disconnected with their local government.

Michael Grant:
I suppose Phoenix got a little upset a few months ago.

Tom Pretzelsky:
Well, there's that, too. But I mean, I've supported Mr. Gray's moves on issues like open meetings with regard to eminent domain. The two-thirds majority with regard to eminent domain. I've also supported the idea of more clearly defining, for instance, that a public benefit is not an increase in tax revenue, necessarily.

Michael Grant:
Yeah, right.

Tom Pretzelsky: So those are good issues. But once we start going beyond that and we start going in some ways beyond protecting prior property owners and just making life harder for local government, we're increasing the burden on taxpayers.

Michael Grant:
Representative Gray, if it ain't broke don't fix it category, doesn't the Bailey's Brake Shop case indicate that the system ain't broke?

Michael Grant:
I mean, mesa had an opinion that, well, you know, we really think a hardware store would work better there so we're going to take your brake shop, and the court said, no, you can't do that.

Chuck Gray:
Well, and that's the point is that the Kelo decision, for example, which was one that I don't think either tom or myself would support, that was a 5-4 split decision. So what that tells us is that while our constitution and our courts are holding for now, if we rest on our laurels then we may wake up one day and find out that there's a split decision with one single judge that makes a determination.

Michael Grant:
Representative Gray, but you know I know that Arizona has a much different and much more secure constitution on this particular point than the fifth amendment to the United States Constitution.

Chuck Gray:
And thank goodness for wise founding fathers in Arizona . We also have the issue of the takings which is one of the major pieces of this legislation with regulatory takings. And the issue here is, if there is a benefit to the public at large to down zone a single property owner's property, then the public at large needs to compensate that owner. It is not fair, it is not just for that single property owner to bear the brunt of that down zoning.

Michael Grant:
Now, let me flip it, representative prezelski. Because even though you had I think a ruling that a lot of people felt very comfortable with in the bailey's brake shop case, you had the city of Tempe arguably doing what some fairly quickly there after thought again should not be allowed, had to go to the courts. The courts again said no, but we're starting to burn up a lot of court time. And apparently some cities aren't getting the message.

Tom Pretzelsky:
Well, yes, which goes to my point. We were talking about some of this legislation that we're pursuing, talks about placing the burden on the city -- basically placing a burden on the taxpayers to prove that what they're doing is a public benefit, whether it's a road, a fire station, whatever. They have to make that argument. We have seen other legislation that kind of changes the idea of who's an effective party. So -- and then we have legislation that forces the local government to pay the court fees regardless of the outcome of the case. We have to start looking after the interests of the taxpayer as well as the interests of the private property owners. The largest cost in any transportation project is the cost of land acquisition. And what we're doing here is going to effect all the other projects that every city attempts.

Michael Grant:
Hypothetical, let's stick with the road. Legislature, department of transportation acquires the land for the 101, famous speed trap.

Chuck Gray:
Sure.

Michael Grant:
People on the side of that road certainly can make an argument that their value has been diminished for quite a ways for noise and those kinds of things. Under the changes that you're proposing could they sue the state and say, no, you owe me 15\% of my property value?

Chuck Gray:
No. This effects only property -- your personal property that's been zoned your property. The adjacent property is not taken into consideration. That's not a taking. If they don't up-zone your property and you wanted it, that's not a takings. If you agree with the takings and then later come back and say, I'm sorry. If you agree with the up-zoning or the down zoning, later you can't come back and say, that's a takings. I changed my mind. This only applies if it affects your property directly.

Michael Grant:
Do you agree with that?

Tom Pretzelsky:
No.

Michael Grant:
People think it has a broader impact.

Tom Pretzelsky:
Yes. And a lot of local governments who are concerned about the package of legislation, not any one bill specifically, are concerned with that. Concerned with the possible legal confusion that this is all going to create. I'm concerned a lot with the interests of the community and interests of the taxpayers. If we are forcing our local governments to spend more money on fighting legal battles, some of which are frivolous -- we're not going to be able to do a lot of things that people in the community need to get done.

Michael Grant:
On the other hand, though, sticking with the same hypothetical. To the extent the state has done something, that has diminished my enjoyment in property value by 15\% or something, can't you make an argument that that's part of the cost that the taxpayer perhaps should pick up?

Tom Pretzelsky:
Yeah, I would agree. But we have protections for that already in law and protections for that already in policy. The problem here is that we start to expand the idea of who's affected and how they're affected and getting very rigid about how we calculate value. And also allowing people to challenge projects that have already gone through sometimes a very open public process. You can't spend a dollar of federal money on a transportation project unless you can prove to the federal government that you've had an open public process and all the effective communities were involved.

Michael Grant:
Representative Gray, sorry. We're just about out of time. Do you expect this to move completely through the legislative process?

Chuck Gray:
It's a good bill. There is support on both sides of the aisle. It's bipartisan. It supports people's property values. It will not effect the streets and road and things.

Michael Grant:
Representative Chuck Gray, thanks to joining us. Representative Prezelski, our thanks to you as well.

Merry Lucero:
Photo speed enforcement on Scottsdale section of the loop 101 freeway is at the center of controversy over the use of cameras to issue citations to speeders. The state senate has passed a bill to prohibit the use of photo enforcement on controlled access free ways. We'll have details Wednesday on Horizon.

Michael Grant:
Incidentally, directly following Horizon tonight please stay tuned to find out everything you need to know about the Phoenix bond election coming up next month. It is our Horizon special, Phoenix bond 101. Thank you very much for being here for Horizon. I'm Michael Grant. Have a great one. Good night.

Announcer:
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Announcer:
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Eminent Domain


  • In the wake of the U.S. Supreme Court's decision concerning eminent domain powers, a flurry of legislation is making its way through the capitol. Representatives Chuck Gray and Tom Prezelski discuss the issue.
Guests:
  • Bruce Merril - Director, Eight-Cronkite Poll
  • Tara Blanc - Assistant Director, Eight-Cronkite Poll


View Transcript
Michael Grant:
Tonight on Horizon, it is a political hot potato for the Bush administration. The issue of using an United Arab Emirates company at American ports. See what Arizonans think about that and other issues in our latest poll. Plus a host of bills dealing with eminent domain are making their way through our state's legislature. After the U.S. Supreme Court's decision on the issue. Those stories next on Horizon.

Announcer:
Horizon is made possible by The Friends of Channel 8, members who provide financial support to this Arizona PBS station. Thank you.

Michael Grant:
Good evening. I'm Michael Grant. Welcome to Horizon. Arizonans like photo radar but they do not like a deal to allow an United Arab Emirates company to take over ports in the U.S. those are a couple of results of the latest eight-Cronkite poll. The poll was conducted February 23 through the 26. Of 375 registered Arizona voters. It has a margin of error of 5.1\%. Here are the results.

Michael Sauceda:
The eight-Cronkite poll found that 68\% of those surveyed favored photo radar on city streets. 24\% were opposed. We asked participants whether cities should be allowed to regulate speed on state highways or freeways. 72\% says photo radar is an effective way to reduce speeding while 20\% it was not. Arizona has been levied fines for failing to come up with the English Language Learning issue. 7\% says the governor bears most of the part. 17\% said both parties bear equal responsibility. 56\% didn't have an opinion. We asked people whether they knew why a federal judge imposed fines against the state of Arizona . 52\% said they knew why. 48\% said they did not know why. However, 78\% of those who said they knew why could not put the reason in their own words. A bill being proposed by the state legislature of Arizona would allow students to opt out of work if they believed it opposed their religious beliefs. 58\% opposed that bill, 38\% favor it. 58\% said they were against allowing a United Arab Emirates company to take over operations at 6 U.S. ports. 234\% support the move.

Michael Grant:
Joining me to talk about the results is the poll director, Bruce Merrill. Also here is Tara Blanc, assistant polls director. Hello to both of you.

Tara Blanc:
Hello.

Bruce Merrill:
Hello, Michael.

Michael Grant:
One thing we found out about in this poll is people are really in with photo radar, Bruce.

Bruce Merrill:
I don't think they're in love with photo radar. I think they're scared to death to get on the 101. I think it's primarily a safety issue, although we did ask people about photo radar in general. About two out of every 3 Arizonans feel that it is helpful to use it in the city. And we kind of explained exactly what was happening in Scottsdale where the city of Scottsdale is regulating the speed of the cars on a state freeway and how they felt about that. Again two out of every 3 people thought that that was fine.

Michael Grant:
Yeah. There was really not much of a -- there was some but there wasn't much of a distinction between well, my words, not the poll's, do you like it on city streets or freeways. The result was about the same.

Bruce Merrill:
I think so. I thought maybe at first, mike, the issue might really be whether or not the city had the right to be regulating speed on a state highway. Very few of the people we interviewed really saw it that way. It turned out to be a safety factor that people think that radar is an effective way to reduce speed, and therefore they support it.

Michael Grant:
Yeah. I was going to point out that that was another poll question was, well, do you think it's effective. And people overwhelmingly said, yes, we think it's effective to impact speeding.

Tara Blanc:
I think we were a little surprised by how many people said that they believed that photo radar is effective in enforcing and regulating speed. A lot higher than I would have expected it to be.

Michael Grant:
Kind of a strange result. We obviously asked several questions on the English language learning issue which has been front and center for two or three months. Now, explain -- we got a result of, do you understand what the issue is all about of 52 -- 52\%, yes, I did. But what happened then?

Tara Blanc:
What we did was the way we phrased the question, we asked each respondent whether they knew why the federal judge had imposed a fine of Arizona , the half million dollar a day fine. It was a yes or no question, basically. Of those people who said yes that they did know why, then we asked them to explain in their own words why the judge imposed the fine. The net result was that 44\% of the people we talked to were actually able to identify what the fine was for. Another 8\% had said that, yes, that they knew what it was for but then they couldn't tell us. And then another, what, 48\% said no outright. So when you add the 8\% that couldn't tell us what it was for and the 48\% who said they didn't know what it was for, basically we netted about 44\% of people who really could identify what was associated with the fine.

Michael Grant:
Then we said, okay. To the extent you either know the issue or not.

Bruce Merrill:
Are confused.

Michael Grant:
Who do you blame. Whose fault is this. And that was kind of a mixed bag.

Tara Blanc:
It was a mixed bag. Of the people who did know what the fine was for, about twice as many blamed -- want to say blame -- felt fault lay with a with the state legislature as with the governor. But that was only 14\% that said the state legislature was to blame, 7\% said -- and that's of the overall group of people we talked to. If you looked at just the people who said that they knew, then you basically double those. It was 32\% who blame the legislature and I think 16\% who said they blame the governor. But 38\% of the people who knew what it was about said they were equally to blame, that they really couldn't place blame.

Michael Grant:
Now, this one if you drill down on the data you found out some significant partisan differences in who you thought was to blame depending upon what your party registration.

Bruce Merrill:
What a shock in Arizona , isn't it?

Bruce Merrill:
Absolutely. What happened is -- when we asked people, well, who do you think is responsible for not being able to resolve this conflict, not surprisingly the republicans tended to feel that the governor was responsible, and the democrats felt the republican-controlled state legislature was responsible. But I think that the important thing is what Tara said. Keep in mind that about 4 out of every 10 Arizonan said both of them are at -- and these are people that knew what the issue was. So about 40\% said both of them are to blame.

Michael Grant:
It is interesting, though, getting back to the first point, that because really this issue has occupied an awful lot of press attention over the past couple, three months, that the overall level of familiarity with the issue would be so low.

Tara Blanc:
Well, we were talking about that earlier. And it might be in how you look at it. You could say that almost half the registered voters we talked to actually were familiar or did have some knowledge of what the issue was about. And considering that it's an issue that if you don't have children in school or perhaps the English Language Learner thing is not something that would catch you, even though it's costing the state a lot of money and we would suggest that it's something people should be aware of. But I think you could look at it as saying half the voters knew about the issue, maybe that's better than what you would find on other issues.

Michael Grant:
Maybe it's a Dirk Zen thing. A billion there, a billion there, you start talking real money. I'm not shocked by the result on the UAE control of ports issue.

Bruce Merrill:
No. It's just another in the series of bad information things for the president. Even in republican Arizona by a 2-1 margin people did not want that approved here in the state of Arizona . And I think the most telling thing, Michael, is that two-thirds of the republicans with a position that had an opinion on it actually are opposed to bush's position. So if you look at what's happening in the national polls today, 34\% approval rating, the lowest since he's been in office, I think he's just had a whole bunch of very bad press. And that's beginning to show.

Michael Grant:
I guess I was most surprised by the administration's just stiff support of the deal in the face of what obviously has been a pretty significant public outcry.

Bruce Merrill:
I think that's been kind of a growing problem for the president is that there is kind of a public perception out there that the president kind of does what he wants to do regardless of if anybody likes it or not. That's kind of hurt him a little bit.

Michael Grant:
Second term president Bruce Merrill.

Bruce Merrill:
Oh, no.

Michael Grant:
Thank you very much. Good to see you again.

Tara Blanc:
Thanks, Michael.

Michael Grant:
Nearly a couple dozen bills involving eminent domain being considered in the state's legislature, part of the reason for the flurry of legislation the result of the U.S. supreme court's decision in Kelo versus city of New London, Connecticut. That decision seemed to open the way for cities to seize private land for other private uses. Arizona has seen quite a few battles involving eminent domain. Producer Larry Lemmons shows us some examples.

Larry Lemmons:
Sometime in the near future this site just southwest of the 101-202 intersection in Tempe will look much different. The Tempe marketplace will be comprised of 117-acres of retail space. After the pollution from three unlined landfills is cleaned up. This was also the site of a contentious eminent domain battle. More than a dozen land owners including Troy Valentine had sued the city of Tempe and Mara Vista -- a Maricopa County judge had ruled in the landowner's favor. The city threatened to appeal. But earlier this month the final holdout land owner had settled on a deal. Property rights advocates claimed victory because in the end Vestar development company secured the land through private negotiation rather than through the city council.

Tim Keller:
Both the development and redevelopment occur every day in Arizona and across the nation without the use of eminent domain. Individuals who want to develop property and they can acquire a particular parcel within their designed project can simply build around them. It's not unusual. Unfortunately the developers in the cities and towns don't know how to negotiate. They go in and declare, we need every single parcel here. They don't make any exception for holdouts.

Larry Lemmons:
Vestar went so far as to hire the former director for the institute of justice Arizona chapter-- Tom Liddy.

Tom Liddy:
I agreed to participate in this because it is so different from the other case is that we're sick and tired of developers going in there and riding rough shod over property owners. Vestar has been working hard with the property owners to give them 140\% and in some cases more of their assessed value. That's the way that you make the system work with dignity.

Larry Lemmons:
The institute for justice represented bailey's brake system and that business's battle with the city of mesa. Bailey had claimed the city was trying to seize his property in order to put an ace hardware on the site. Bailey fought and eventually won. He remains on his site. These are but two local examples of eminent domain showdowns that are occurring all over the country. The powers of eminent domain are granted to the government in the U.S. and Arizona constitutions. It is the power to seize private land for public benefit. A public benefit can be defined find a number of ways. Last year the U.S. supreme court ruled that local governments may force land owners to sell for private development. The Arizona constitution's definition of eminent domain would prohibit that, but a flurry of legislation limiting eminent domain power is now circulating through the legislature.

Tim Keller:
The U.S. supreme court has said that under the fifth amendment to the U.S. constitution there is tremendous deference given to the legislative body in determining what or what does not constitute a public use. And we believe in Arizona that question should be determined by the judiciary as to what or what is not a public use. And if they won't do it then the legislature needs to step up and craft more narrowly - defined issues as to when they can seize property.

Ken Strobeck:
I think what happened in the case of Kelo versus new London is something that happened in Connecticut and happened back in the east coast. The scenarios are very different than they are in the west. The Arizona constitution already has more protections than the federal constitution. And the cases in which -- or the law in which Kelo was decided would probably not have got tone first base had it been an Arizona case.

Larry Lemmons:
Using eminent domain is not the only way municipality come up over landowner either. The recent Donald Trump case into the Camelback corridor is an example of how zoning can spark controversy. The Phoenix city council had voted to change zoning regulations for that area to allow Trump to construct a high rise which would have impacted some local property owners. The residents group gathered enough signatures to put the issue on the ballot whereupon the city overturned its original decision. The land owners had won. Currently zoning issues are part of the eminent domain issue due in some part to success in Oregon with measure 37.

Ken Strobeck:
It says if there's a diminution of value due to regulation that the property owner can either claim for of waiver of the regulation or for compensation. There are about 2500 claims that have been filed in the Oregon supreme court just within this week ruled that that measure was constitutional. So it will be going forward and people will be filing claims and either getting paid or getting waivers for it.

Tim Keller:
A takings is a takings is a takings. There are physical takings we're talking about but the government also uses regulatory authority to take the value of somebody's property. There's one proposal that would address both issues at the same time which would e essentially allow one land owner whose property was devalued as a result of down zoning or something to come in and request compensation for that loss of value.

Ken Strobeck:
When the measure that they're talking about says any comprehensive plan or zoning change. So what you essentially would be saying is, if you ever update or change a zoning ordinance and somebody claims that it diminishes the value of their property, whether it does or not all they have to do is file this claim and then they theoretically are initiated to compensation or judicial action to determine if it is a taking or so forth. So what this really is an open invitation to litigation. Lawyers will be fully employed deciding these issues for years.

Tim Keller:
We understand that when government takes somebody's home to build a road, that home owner needs to be compensated. What we're saying is that if government believers there is some value to the rest of society as a result of zoning that that zoning impacts that property owner in such a way they lose value that society should probable compensate that landowner.

Michael Grant:
Joining us now to talk about the eminent domain legislation being studied at the state's capitol, representative Chuck Gray who has sponsored some of it and representative Tom Prezelski. Welcome to you both.

Michael Grant:
Representative Gray, I think I want to move to a couple of examples. But there are a lot of bills out there but there's really one product that is most likely to passed?

Chuck Gray:
That's right, Michael. The product that the legislature is moving through the process that will be the one that we send to the people is house concurrent resolution 2031. And that bill will be the premiere bill that we put forth to protect property owners' property.

Michael Grant:
Okay. So if you're interested in this subject, that's the one that you ought to keep watch.

Chuck Gray:
That's the one. And I'm excited about it. It's a good bill.

Michael Grant:
We'll get to that in just a second. But representative Prezelski, I take it you're not enamored of that bill or these changes.

Tom Pretzelsky:
Well, no. I believe the real solution in the issue of eminent domain is simply having a more open government and more responsive government and more participatory government. You'll notice a lot of these problems haven't emerged in Tucson or flagstaff where people are actively involved in the community. They have occurred in places like mesa and Scottsdale, places where people feel very disconnected with their local government.

Michael Grant:
I suppose Phoenix got a little upset a few months ago.

Tom Pretzelsky:
Well, there's that, too. But I mean, I've supported Mr. Gray's moves on issues like open meetings with regard to eminent domain. The two-thirds majority with regard to eminent domain. I've also supported the idea of more clearly defining, for instance, that a public benefit is not an increase in tax revenue, necessarily.

Michael Grant:
Yeah, right.

Tom Pretzelsky: So those are good issues. But once we start going beyond that and we start going in some ways beyond protecting prior property owners and just making life harder for local government, we're increasing the burden on taxpayers.

Michael Grant:
Representative Gray, if it ain't broke don't fix it category, doesn't the Bailey's Brake Shop case indicate that the system ain't broke?

Michael Grant:
I mean, mesa had an opinion that, well, you know, we really think a hardware store would work better there so we're going to take your brake shop, and the court said, no, you can't do that.

Chuck Gray:
Well, and that's the point is that the Kelo decision, for example, which was one that I don't think either tom or myself would support, that was a 5-4 split decision. So what that tells us is that while our constitution and our courts are holding for now, if we rest on our laurels then we may wake up one day and find out that there's a split decision with one single judge that makes a determination.

Michael Grant:
Representative Gray, but you know I know that Arizona has a much different and much more secure constitution on this particular point than the fifth amendment to the United States Constitution.

Chuck Gray:
And thank goodness for wise founding fathers in Arizona . We also have the issue of the takings which is one of the major pieces of this legislation with regulatory takings. And the issue here is, if there is a benefit to the public at large to down zone a single property owner's property, then the public at large needs to compensate that owner. It is not fair, it is not just for that single property owner to bear the brunt of that down zoning.

Michael Grant:
Now, let me flip it, representative prezelski. Because even though you had I think a ruling that a lot of people felt very comfortable with in the bailey's brake shop case, you had the city of Tempe arguably doing what some fairly quickly there after thought again should not be allowed, had to go to the courts. The courts again said no, but we're starting to burn up a lot of court time. And apparently some cities aren't getting the message.

Tom Pretzelsky:
Well, yes, which goes to my point. We were talking about some of this legislation that we're pursuing, talks about placing the burden on the city -- basically placing a burden on the taxpayers to prove that what they're doing is a public benefit, whether it's a road, a fire station, whatever. They have to make that argument. We have seen other legislation that kind of changes the idea of who's an effective party. So -- and then we have legislation that forces the local government to pay the court fees regardless of the outcome of the case. We have to start looking after the interests of the taxpayer as well as the interests of the private property owners. The largest cost in any transportation project is the cost of land acquisition. And what we're doing here is going to effect all the other projects that every city attempts.

Michael Grant:
Hypothetical, let's stick with the road. Legislature, department of transportation acquires the land for the 101, famous speed trap.

Chuck Gray:
Sure.

Michael Grant:
People on the side of that road certainly can make an argument that their value has been diminished for quite a ways for noise and those kinds of things. Under the changes that you're proposing could they sue the state and say, no, you owe me 15\% of my property value?

Chuck Gray:
No. This effects only property -- your personal property that's been zoned your property. The adjacent property is not taken into consideration. That's not a taking. If they don't up-zone your property and you wanted it, that's not a takings. If you agree with the takings and then later come back and say, I'm sorry. If you agree with the up-zoning or the down zoning, later you can't come back and say, that's a takings. I changed my mind. This only applies if it affects your property directly.

Michael Grant:
Do you agree with that?

Tom Pretzelsky:
No.

Michael Grant:
People think it has a broader impact.

Tom Pretzelsky:
Yes. And a lot of local governments who are concerned about the package of legislation, not any one bill specifically, are concerned with that. Concerned with the possible legal confusion that this is all going to create. I'm concerned a lot with the interests of the community and interests of the taxpayers. If we are forcing our local governments to spend more money on fighting legal battles, some of which are frivolous -- we're not going to be able to do a lot of things that people in the community need to get done.

Michael Grant:
On the other hand, though, sticking with the same hypothetical. To the extent the state has done something, that has diminished my enjoyment in property value by 15\% or something, can't you make an argument that that's part of the cost that the taxpayer perhaps should pick up?

Tom Pretzelsky:
Yeah, I would agree. But we have protections for that already in law and protections for that already in policy. The problem here is that we start to expand the idea of who's affected and how they're affected and getting very rigid about how we calculate value. And also allowing people to challenge projects that have already gone through sometimes a very open public process. You can't spend a dollar of federal money on a transportation project unless you can prove to the federal government that you've had an open public process and all the effective communities were involved.

Michael Grant:
Representative Gray, sorry. We're just about out of time. Do you expect this to move completely through the legislative process?

Chuck Gray:
It's a good bill. There is support on both sides of the aisle. It's bipartisan. It supports people's property values. It will not effect the streets and road and things.

Michael Grant:
Representative Chuck Gray, thanks to joining us. Representative Prezelski, our thanks to you as well.

Merry Lucero:
Photo speed enforcement on Scottsdale section of the loop 101 freeway is at the center of controversy over the use of cameras to issue citations to speeders. The state senate has passed a bill to prohibit the use of photo enforcement on controlled access free ways. We'll have details Wednesday on Horizon.

Michael Grant:
Incidentally, directly following Horizon tonight please stay tuned to find out everything you need to know about the Phoenix bond election coming up next month. It is our Horizon special, Phoenix bond 101. Thank you very much for being here for Horizon. I'm Michael Grant. Have a great one. Good night.

Announcer:
If you have comments about Horizon, please contact us at the address listed at the bottom of your screen. Your name and comments may be used on a future edition of Horizon.

Announcer:
Horizon is made possible by The Friends of Channel 8 members who provide financial support to this Arizona PBS station. Thank you.

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