Goldwater Institute joins PLF in urging Arizona Supreme Court to protect property rights

April 19, 2013 | By TIMOTHY SANDEFUR

We recently filed a petition asking the Arizona Supreme Court to take up the case of Aspen 528 v. Flagstaff, a lawsuit under that state’s Property Rights Protection Act, in which the Court of Appeals essentially shortened the statute of limitations from three years to two years and nine months. Last week, the Goldwater Institute filed this friend of the court brief urging the Court to grant our petition and hear the case.

The question may seem a complex one, but it’s a crucial one for the state’s property owners, who were promised protection against government takings of their property. Proposition 207, passed in the wake of the infamous Kelo decision, says that if the government seizes your land outright, or imposes a regulation that deprives your property of its value, you can file a lawsuit to get the just compensation that the Constitution guarantees you. The deadline for filing a lawsuit is three years after the passage of the law that decreases your property value. But before you file your case, you must first file a written demand for compensation, and give the government some time to decide whether to pay you first. They get 90 days to make that decision. If they ignore you, then after 90 days, the demand is considered denied and you can then file a lawsuit. You’re not allowed to sue before that 90 days is up.

But what happens if you file your demand during the last 90 days of the three year period? Can the government just ignore you, and then when you file your case, just say “Well, too late—we waited long enough that the three years expired!” That sort of a “pocket veto” is usually illegal—courts apply a well-known doctrine called “tolling” to ensure that you can wait the required 90 days without losing your rights under the statute of limitations. For some reason—which it did not explain—the Arizona Court of Appeals ruled otherwise in our lawsuit on behalf of Flagstaff property owner Paul Turner, and his company, Aspen 528. It held that the three years is a deadline, no matter what—even if the city goes past that deadline out of a bad-faith desire to deprive you of your constitutional rights, as happened here.

We’ve asked the state’s highest court to review this question and our friends at the Goldwater Institute have filed this brief urging the court to take up the case. As they point out, the “tolling” rule applies to these kinds of exhaustion requirements in all sorts of jurisdictions. To reject that rule, and to allow cities to “pocket veto” lawsuits brought during the last three months of the three-year limitations period would reduce the three year period to two years and nine months. What about people who only buy the property during that last three months? Or inherit it, just in time to be told that the city has manipulated the rules and deprived them of their right to just compensation?

We hope the Supreme Court will take up this issue soon.