NUISANCE EXCEPTION TO PROP 207

PROP 207/A.R.S. § Requires just compensation if the existing rights to use, divide or possess private property are reduced by a land-use law enacted after the property is acquired and the law reduces the fair-market value of the property. Exception for land-use laws that limit or prohibit use or division of real property commonly and historically recognized as a public nuisance under common law.

SEDONA GRAND CASE Sedona adopted an ordinance to promote the aims and goals of the Land Development Code’s ban on short-term rentals in residential districts. Made rentals of residential properties for less than 30 consecutive days to a transient a class one misdemeanor.

WE HAVE THE BURDEN Body enacting the law bears the burden of demonstrating an exception applies. Legislative declarations of purpose are not entirely irrelevant but are not dispositive concerning the true intent of the law.

WHAT DO WE HAVE TO SHOW? Required more than a declaration that the purpose was to promote public health and safety to invoke exception for the protection of the public’s health and safety. Must present evidence that its principal purpose in passing a land-use law is one that qualifies for exception under the Act.

COMMON LAW NUISANCES Common-law public nuisances include: Anything injurious to health, indecent, offensive to the senses or an obstruction to the free use of property that interferes with the comfortable enjoyment of life or property by an entire community or neighborhood or by a considerable number of persons. A.R.S. § ; Mutschler v. City of Phoenix, 212 Ariz. 160 (2006).

SO WHAT CAN WE REGULATE? Common Law Nuisances include: Noise Light Odor Activities attracting insects or rodents Fire hazards

STUDENT HOUSING Citizens are upset about the effects of student housing in Flagstaff. They would like to prohibit multi-family housing or rooming and boarding facilities in zones where it is currently allowed, but don’t have a plan to pay for the desired downzoning. Under the nuisance exception can we: Require on-site management; Require lease provisions that allow for eviction for violations of our party/nuisance ordinance; Require on-site janitorial service to keep property cleaned up; Limit the number of unrelated persons who cohabitate in a single- family dwelling?

DARK SKIES The Naval Observatory and Lowell Observatory are in Flagstaff. The Zoning Code regulates lumens using overlay zones. The regulations can make developing multi- family housing more difficult. The observatories and the Dark Skies Community Coalition would like to further restrict light pollution in Flagstaff near the observatories. Can we, under the nuisance exception: Require light shields? Further reduce allowed lumens? Require motion sensors for outdoor lighting?

OTHER IDEAS Regulate odors with side-effect of restricting industrial areas? Increase setbacks for property adjacent to forest land or other open space to help prevent forest fires at urban interface? Can this be used to create buffers around airports or military installations due to noise? Does anyone see danger here?