[Vision2020] Statesman: Two views on Prop 2
msolomon at moscow.com
Sun Sep 17 07:14:44 PDT 2006
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.
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
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
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
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
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
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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