[Vision2020] Statesman: Two views on Prop 2

[Mark Solomon]

In the interest of a full debate, I am posting two opinion pieces 
from today's Statesman: one pro, one con Prop 2. I will add however, 
that the pro-Prop 2 piece is as disingenuous as Prop 2 itself as it 
continues the false argument that Prop 2 will do anything regarding 
actual eminent domain procedures. As I have said and the column from 
Jon Barrett (former Moscow resident) reiterates, Prop 2 restates word 
for word existing law on eminent domain as a cover for it's real 
agenda: ending land-use planning.

Mark Solomon

***************

Two views: On Nov. 7, Idaho voters face a public decision over private property
Idaho Statesman, 9/17/2006


Prop 2 would make it difficult to impossible for communities to 
control their futures

By Jon Barrett

Is Proposition Two really about eminent domain? No. The language in 
Prop 2 duplicates word for word the eminent domain law, HB 555, 
passed by the Legislature this year. So why do we need an initiative 
to tell our legislators to do something they've already done? We 
don't. This part of the initiative is a smokescreen for what the 
initiative is really about.

So what would this initiative do? The second part of Prop 2 claims it 
protects property owners from local land regulation. At first this 
might sound good but the effects could be disastrous for your 
neighborhood.

We all know regulations are not perfect. But what would your 
neighborhood or community look like without land-use regulation? Do 
you want a high-rise apartment next to your house, or perhaps two, 
plus a fast-food restaurant? Maybe you live on the edge of town and 
someone wants to dig a gravel pit across the road.

Or perhaps you're a farmer who is concerned about a power plant next door.

If Proposition 2 passes, your local commissions and councils will be 
powerless against incompatible developments. The only way to prevent 
such development will be to pay the property owner for the "highest 
and best use" with your tax dollars or go to court, again with your 
tax dollars, and if Proposition 2 passes, most likely lose.

Prop 2 requires state, local and federal entities to pay for the 
"highest and best use," meaning "the highest estimated value of the 
property based on use to which the property is reasonably adaptable 
and capable, without consideration of any future zoning or dedication 
requirements imposed by a public body or land use laws...," or allow 
the development to occur.

It's somewhat unclear what the exact effect of Prop 2 might be as the 
language in the initiative is very confusing. What is clear is this 
initiative would make it difficult to impossible for communities to 
control their futures. Idaho's land use law enables local communities 
through their city and/or county to plan how they want their 
community to grow and develop. Efforts to plan for growth while 
trying to protect neighborhoods or open space, provide for parks, and 
revitalize downtowns will simply go away.

Prop 2 has many faults. Paying for claims and lawsuits related to 
Proposition 2 could cost taxpayers hundreds of millions of dollars, 
jeopardizing funding for public safety and other important services. 
Because it is so vague and unclear it will most likely lead to your 
tax dollars being invested in legal challenges rather than needed 
infrastructure and good land use planning.

Proposition 2 creates an unclear playing field for all property 
owners by removing any predictability of what might happen next door.

Proposition 2 erodes a community's ability to make local land use 
decisions for itself and replaces that authority with a state law 
dictating the value of land and allowing individuals to bypass local 
regulation.

It will largely benefit out-of-state speculators wanting to make 
money in Idaho, but who are not genuinely interested in investing in 
Idaho's future and its communities. Not surprising, since the 
proposition is funded by wealthy, out-of-state interests.

Jon Barrett is the executive director of Idaho Smart Growth, a 
statewide nonprofit organization helping neighborhood leaders and 
concerned citizens promote sensible growth that protects quality of 
life.

Proposition 2 protects landowners from the government's broad 
definition of 'public use.

By heather anne cunningham

One might think that Idaho would have strong protections safeguarding 
the taking of private property, but we don't. Idaho's eminent domain 
provision is one of the nation's broadest. The use, or threat, of 
eminent domain is common throughout Idaho. Currently, it's virtually 
impossible to challenge a taking and win. The presumption is that 
government properly determines what it needs, and citizen 
disagreement isn't relevant.
Proposition 2 protects citizens when government inappropriately takes 
property. There are certainly many situations where private property 
is appropriately taken for public projects, for roads, schools or 
sewer plants. However, there can be takings that many consider 
inappropriate. Governments are stretching the definition of "public 
use" to include economic benefits like higher property tax revenues. 
Taking private homes to transfer to developers who will pay higher 
taxes was upheld by the U.S. Supreme Court, but states can outlaw 
such takings.
Another way government takes property is by enacting regulations 
which drastically affect its use. Many land-use regulations are 
appropriate; the problem is that currently there is no compensation 
in situations when those regulations go so far that they take private 
property rights for the benefit of the public. For example, a family 
owns 100 acres of land in the county where zoning allows five houses 
per acre. The family still farms the land but plans to sell to a 
residential developer when they retire. A nearby city annexes the 
land and zones it to allow only one house per 40 acres, to preserve 
open space. The effect is that the vested right to develop has been 
taken. Without Proposition 2, there is no compensation for this loss.
How will Proposition 2 address these problems? It specifies that 
eminent domain cannot be used to take land from one person to give to 
another, and that "economic development" isn't a public use and can't 
be the basis for takings. It also provides court review to encourage 
greater oversight of takings and allows courts to seriously consider 
citizen challenges rather than presume government is always right.
Proposition 2 defines eminent domain terms to close loopholes, 
including "public use." When property is taken, the owner is to 
receive "just compensation." Proposition 2 defines "just 
compensation" as what's necessary to put the owner back in the same 
position he was in before the taking. Currently, the owner is 
virtually never made whole. (I haven't seen it happen in 10 years of 
practice.)
Proposition 2 also allows compensation if a land-use regulation 
reduces the value of land (with some exceptions). Owners must make a 
claim. The government entity imposing the regulation has 90 days to 
remove it or pay compensation; otherwise, the owner can go to court 
for just compensation. It doesn't apply to regulations already in 
effect, and doesn't apply if a landowner's rezone request is denied.
This will mean that if government decides to control the use of your 
property and allow you less use than you are currently legally 
entitled to, they have to pay you for "down-zoning" it. This makes 
perfect sense: If you have a vested legal right and the government 
takes it from you, shouldn't it have to pay you for what it has taken?
Proposition 2 is necessary because government has gone too far. Right 
now government can destroy the use and value of your property and 
there is literally nothing you can do about it. At least twice, bills 
were introduced in the Legislature to address these problems, but 
cities and counties opposed them. They don't want to give up power, 
despite abusing it.
You can make them. Vote yes.
Ms. Cunningham is an attorney with Davison, Copple, Copple & Cox in 
Boise. Her practice focuses primarily on representing property owners 
facing eminent domain and related land use issues.
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