Sedona property rights case before Arizona court

By: Associated Press
Originally published: Jun 11, 2012 – 1:26 pm

PHOENIX – A court case involving vacation rentals in Sedona could affect Arizona property owners and cities far from the north-central Arizona city known for its picturesque red rocks.

At issue in recently filed legal briefs in the case is whether a Sedona ordinance banning short-term rentals violates a property rights law that Arizona voters approved in 2006.

An advocacy group for cities says the Arizona Supreme Court should overturn a lower court’s ruling against the ordinance, saying it would erase cities’ authority to regulate land use to protect residents’ health and safety.

A conservative group says the real danger would be if cities can easily exempt their actions from the law requiring compensation for government action that reduces property values.

Sedona contends it needs the ban to protect residential neighborhoods in the heavily visited city and that the owner of Sedona Grand violated the ban by allowing prospective buyers to “inspect” the property for a set period of time.

A website for Sedona Grand describes the property as a five-bedroom home suitable for “vacation rental” and displays photos of “panoramic views” of Sedona’s red rock cliffs and bluffs. The site also lists other properties.

The city’s ban dates from 1995, but the Sedona Grand case centers on a 2008 ordinance making it a misdemeanor to rent out single-family homes for fewer than 30 consecutive days.

Sedona, with a population of approximately 6,500, is a magnet for tourists and other visitors, thanks to its scenic vistas. It also draws many in the New Age movement, who are seeking inspiration, enlightenment and renewal through things like aura and psychic readings, and vortex sites, which are said to possess intense energy.

The ordinance said Sedona “is committed to maintaining its small-town character, scenic beauty and natural resources that are the foundation of its economic strength and quality of life.” Specific concerns for protecting neighborhoods include traffic, noise, “high occupant turnover” and density, the ordinance.

A trial judge ruled that the ordinance was allowed by the property rights law’s permitted exemption for measures to protect health and safety, but the state Court of Appeals in February reversed the judge’s ruling.

The mid-level court said the city has to do more to prove a connection between the ordinance and health and safety concerns.

The Supreme Court is expected to decide later this summer whether to rule on appeals in the case.

The case hinges on what level of deference courts must give municipalities when their city councils make determinations, said Stephen Schwartz, a lawyer for Sedona Grand.

The Goldwater Institute, a conservative group that advocates for property rights, urged the Supreme Court to allow the Court of Appeals ruling to stand.

Cities aren’t entitled to unchecked power and Sedona’s labeling its ordinance as necessary for health and safety was “a masquerade,” lawyer Christina Sandefur said in the institute’s brief, adding that the property rights law’s protections would be worthless if cities can exempt themselves by mere pronouncements.

In fact, it was distrust of government that prompted Arizona voters to approve the property rights law in the first place, Sandefur said.

If government ends up having to compensate property owners, “it simply means (the law) is being enforced as voters intended,” she wrote.

Sedona argued in its appeal to the Supreme Court that the City Council’s findings and declarations are entitled to deference by the courts, and League of Arizona Cities and Towns separately said the Court of Appeals ruling “unduly interferes with a municipality’s power to make decisions relating to public health and safety.”

Allowing the ruling to stand would handcuff cities on matters such as water use because it’d be impractical for city councils to routinely submit to court hearings on whether use of a health and safety exemption is justified, the league’s brief said.

“These determinations should be made by those people elected to protect their citizens,” league attorney Joni Hoffman wrote.

Sedona Grande also appealed, asking the justices to overturn part of the Court of Appeals ruling to have the case go back to trial court for more fact-finding on whether the city can justify its use of the health and safety exemption.

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Posted in Private Property Rights