By Larry Kush
Yet another battle is taking shape between property rights advocates and our cities mayor over the mayor’s goal of gutting the Old Town Scottsdale Character Area Plan (OTSCAP) which was adopted in 2018. In case you have not heard of it, OTSCAP serves as the regulatory long-range plan that guides growth and development in downtown Scottsdale, and incorporates community goals, policies, and an implementation program specific to this area of the community.
Earlier this year the city leadership backed down on a bad plan to create a “Desert Rural Zoning Designation” which would have made it extremely difficult for north scottsdale land owner’s to rezone their property. Only after receiving a series of warning letters from such groups and the Arizona Department of Real Estate; The Goldwater Institute and Citizens for Limited Government (to name but a few) did the city back down fearing that those owners would sue the city as allowed for in Proposition 207. These organizations made it clear that by enacting this change the city would be subject to considerable litigation as their action would be a clear violation of State proposition 207 also know as the Arizona’a Property Rights Protection Act (A.R.S. § 12-1131 – 1138). This act prohibits cities and towns from regulatory takings as well as imposing any diminution of value ensures just compensation for property owners when governmental regulation devalues property In other words, this law requires that Scottsdale would have to compensate a property owner when it imposes any land use regulation that reduces the right to use property, and in doing so diminishes the property’s value, which is exactly what the Mayor and his supporters on council are advocating.
Mayor Ortega has made it very clear that he intends to do all that he can to gut OTSCAP by limiting currently allowed building heights by as much as 75%. By “down-sizing” old town the Mayor’s actions will constitute a “land use law” within the meaning of ARS 12-1136.3 which will, constitute the reduction of “existing rights to use, divide, sell or possess private real property without just compensation.” To make matters worse the City could also be required to pay each property owner’s court costs and attorney fees that result from litigation, per A.R.S. §12-1135(D).
Last night at the planned city council meeting over 100 downtown business and land owner’s (think future litigants) showed to protest the councils planned actions. The mayor went into a 20 minute triad stating his case for taking away the rights of these land owners but when Vice Mayor Caputi chimed in about the obvious 207 risk to the city, the mayor rudely cut her off and it took a procedural action by Council Woman Milhaven to allow the Vice-Mayor to continue with her comments. It seems that the mayor thinks he has the only opinion that matters.
If the mayor and his cronies on council are successful with this dangerous plan, downtown land owners will be able to sue the city for what will easily amount to hundreds of millions of dollars or possibly one billion in lost land value, thus potentially bankrupting the city. It seems our Mayor has become unhinged seeing conspiracies everywhere and instead of being a thoughtful and prudent leader he is instead leading us into financial doom.
Larry Kush is a 45 year resident of Scottsdale, a former 6 year Scottsdale Planning
Commissioner and a lifelong advocate of housing and land rights