[Vision2020] Risch Says No on Prop 2

[g. crabtree]

Re: [Vision2020] Risch Says No on Prop 2Bruce, I defer to your infinitely greater knowledge of the law and the byzantine ways of the courts. I based what I had to say on what I thought was common sense, a concept not utilized in cases such as these, apparently. That or my concept of same is decidedly out of step, a notion that I readily admit is a definite possibility.

This being said, I still have to wonder if turning lose the libertarian genii might not be preferable to the stifling scrutiny of the herd. As president of an organization that seems to believe that no land use decision is beyond the oversite of every living, breathing soul with an opinion, it's not too surprising that you would chime in as to the horrors of this proposition. Perhaps a taste of chaos might be just the thing to swing things back to a more reasonable middle ground. That or folks might just learn to like the genii. Either way, I'm happy.

gc

P.S. Since you and Mark both primarily focused on how Prop 2 would affect current land use regulation, should I surmise that with cleaned up language you would become ardent supporters of the concept of property owners being compensated for after the fact government takings, or does the idea of a little suffering by the few for the decidedly debatable greater glory of the many still have a certain je ne sais quoi?

g
  ----- Original Message ----- 
  From: Bruce and Jean Livingston 
  To: g. crabtree ; vision2020 at moscow.com ; Mark Solomon 
  Sent: Saturday, September 30, 2006 1:14 PM
  Subject: Re: [Vision2020] Risch Says No on Prop 2


  Gary, 

  I do not share your expectation that the Idaho Supreme Court will ignore the plain language of the statute that would become state law if the electorate passes Proposition 2.  There are many cases on statutory interpretation, and the most common rule of construction (or statutory interpretation) is that the plain language of the statute means what it says.  Another common rule of construction is that every word of the statute is intended to have meaning, and you cannot read out of existence a clause in the statute, just because you think it is silly or unwise.  And of course the cases are legion that note the difference between "and" and "or," as well as "may" and "shall."  If the statute plainly states that it applies (and compensation must ["shall"] be paid) when a property owner's ability to use land is "limited or prohibited" [meaning either] by "the enactment or enforcement" [again, meaning either] of any land use law that diminishes the property value after the property was acquired by the landowner, the meaning is clear.  You cannot interpret this statute to mean only the enactment of a land use law subsequent to the owner's acquisition of the land, because that interpretation reads out of the statute the plain language -- "or enforcement" of any land use law -- and denies the "or enforcement" clause of any meaning.  

  Look at the language of the statute again:

  "If an owner's ability to use, possess, sell, or divide private real property is limited or prohibited by the enactment or enforcement of any land-use law after the date of acquisition by the owner of the property in a manner that reduces the fair-market value of the property, the owner shall be entitled to just compensation."

  This proposition should be seen for what it is -- an attempt to overturn land use laws and eliminate the ability of local governments to plan and control development  through the use of zoning laws, laws that give property owners some dependability and predictability on how the land around them can be used.  

  I understand and appreciate the belief of the most ardent defenders of private property rights that zoning laws are bad policy and an infringement of individual rights.  There are communities that have chosen not to have zoning laws, presumably for those very reasons.  Reason Magazine routinely used to cite Houston, Texas as an example of how "successful" such a system can work, with a factory next to a store, next to a house, etc., and how the market controlled uses in Houston, rather than a zoning code.  Others have disagreed with the Libertarian publishers of Reason about how "successful" Houston's lack of land use laws has been, and I suspect that is why suburbs surrounding Houston chose to accept some limitation on their private property rights in exchange for the reliability and predictability of the zoning codes that were adopted in those communities.  I believe that Idaho County is another example of a place that has not chosen to have a zoning code, and there, presumably, a trailer can be built next to a house, next to a gun club, next to a church, next to a machine shop, next to a bar, etc., etc.  

  While one might disagree over the wisdom of having a zoning law or not, based on one's willingness to limit property rights in any fashion or not, one ought not to presume that Proposition 2 does not mean what it says.  It is plainly written in such broad language for a reason -- to gut land use laws by making it too expensive for any local government, not just to enact, but to enforce, existing laws.  

  It is unreasonable of you to presume that a state court will ignore long held rules of statutory interpretation to find a middle ground in what the statute might be interpreted to mean, (you activist judge, you!), simply because you find it preposterous that someone could intend to pass a statute that would allow property owners to do whatever they wanted with their land and blackmail communities into allowing any use of private property based on potentially exorbitant claims for "just" compensation, notwithstanding the terms of the existing land use statute as written.  There are many people with Libertarian beliefs who think that eliminating restrictions of any kind on all private property is a good thing and not the least bit preposterous. 

  In sum, I think you are absolutely wrong to assume that Mark's argument is "specious," and I think you are highly likely to be wrong in assuming that the Idaho Supreme Court will interpret Proposition 2 in a way that does not give meaning to the "or enforcement"  clause and the intent of the proposition.  The proponents of this proposition are ardent Libertarians, and it would be inconsistent with their beliefs and intent to interpret the statute to mean anything other than what it actually says, since that plain language is entirely consistent with their Libertarian philosophy.

  Bruce Livingston
    ----- Original Message ----- 
    From: g. crabtree 
    To: vision2020 at moscow.com ; Mark Solomon 
    Sent: Saturday, September 30, 2006 11:54 AM
    Subject: Re: [Vision2020] Risch Says No on Prop 2


    Mark, thank you for your reply. It seems to me that your first argument

    The catch is the phrase "or enforcement" which, whether intended or not, allows for application of any existing zoning code to be considered under Prop 2.

    ...is specious. If dozens of property owners come forward and claim that they must be compensated for their loses because they can't build coal fired power plants or nuclear waste repositories on their improperly zoned land, I am quite certain that the courts will "consider" it, chuckle, and dismiss the claims out of hand. The idea that I would/could/should sue because I can't build a thirty story office tower on my R-1 residential lot is laughable. To attribute a similar sense of humor to the rest of the citizens of our state does them a serious disservice. 

    Your second...

    "Then there is the simple truth that land use patterns evolve over time as community's change. Locking in today's codes as the perfect blueprint for future generations doesn't make sense to me. These are local decisions made by locally elected officials who can be unelected if they do not reflect the will of the public as I well know."

    ... and I suspect more telling concern, is where I see Prop 2 actually being a very good thing. If government decides to enact an arbitrary change in land use policy which is going to negatively impact a citizens property values, the state should reimburse him for his loss. If a matter is important enough to burden private citizens it should be important enough to pay for. If it were determined in the future that Moscow Mtn. should be a coddling moth preserve and all residential uses be disallowed, I feel sure that I know at least one person who would very much hope to be compensated. I, for one, hope very much that he would be.

    Lastly, there's the concept that was expressed in a quote I saw (and admired) recently here on the V which I am sure I am about to mangle horribly... "Man, this is going to be a train wreck. Lets see how it turns out!" ...What we have now isn't all that peachy. Lets try something different and see how that goes.

    gc

      ----- Original Message ----- 
      From: Mark Solomon 
      To: g. crabtree ; vision2020 at moscow.com 
      Sent: Saturday, September 30, 2006 10:38 AM
      Subject: Re: [Vision2020] Risch Says No on Prop 2


      Hi Gary,


      As usual, the devil is in the details. The full text of the legislation can be found at the Sec'y of State website:


      http://www.idsos.idaho.gov/elect/inits/06init08.htm


      The catch is the phrase "or enforcement" which, whether intended or not, allows for application of any existing zoning code to be considered under Prop 2.


      Given the duplicitous nature of the entire Proposition trying to slide this radical redefinition of takings by disguised as abuse of traditional eminent domain powers, I doubt it is unintentional. Go to Laird Maxwell's website and watch the pro-Prop 2 flash cartoon and see how many times they mention the sentence you've quoted or the concepts there embodied. I'll give you a clue: none, nada, zilch.


      Then there is the simple truth that land use patterns evolve over time as community's change. Locking in today's codes as the perfect blueprint for future generations doesn't make sense to me. These are local decisions made by locally elected officials who can be unelected if they do not reflect the will of the public as I well know.


      Mark


      At 9:20 AM -0700 9/30/06, g. crabtree wrote:
        Mark, what am I missing here?

        "If an owner's ability to use, possess, sell,
        or divide private real property is limited or prohibited by the
        enactment or enforcement of any land-use law after the date of
        acquisition by the owner of the property in a manner that reduces the
        fair-market value of the property, the owner shall be entitled to
        just compensation."

        If a person acquires property, knowing full well that zoning or other regulations preclude a particular use, he would not be entitled to any form of compensation. Conversely, should a property owner be prevented from utilizing his land in a perfectly legal manner, according to the laws in place at the time he purchased the property, it seems perfectly reasonable that he should be reimbursed for his loss. Are you arguing that government should be able to ride roughshod over property owners at the whim of elected officials? This sounds to me like democracy at its absolute worst.

        gc


        ----- Original Message ----- From: "Mark Solomon" <msolomon at moscow.com>
        To: <vision2020 at moscow.com>
        Sent: Saturday, September 30, 2006 7:29 AM
        Subject: [Vision2020] Risch Says No on Prop 2

          Risch comes out against property-rights initiative

          By DEAN A. FERGUSON
          of the Lewiston Tribune
          9/30/06

          Idaho's governor said a property-rights initiative will have a
          "chilling effect" on government and is not needed to protect property
          owners from eminent domain abuses.

          "I suspect probably there are people who want to see this chilling
          effect," Risch told the Lewiston Tribune Friday.

          Proposition 2 has two components.

          First, the initiative forbids use of eminent domain to take private
          property and turn it over to private interests. Second, the
          initiative requires governments to pay owners when regulations limit
          a property's value.

          The eminent domain portion is unneeded, Risch said.

          "The Legislature already did that," he said, noting House Bill 555
          passed this year.

          The bill responded to a controversial 2005 U.S. Supreme Court
          decision that allowed a Connecticut city to condemn homes and turn
          the land over to private interests.

          Proposition 2 merely copies portions of that law.

          But the second part has sparked outcries from county and city governments.

          "This new language is going to lead to a lot of litigation," Risch
          said. "I have serious reservations about that."

          The initiative reads: "If an owner's ability to use, possess, sell,
          or divide private real property is limited or prohibited by the
          enactment or enforcement of any land-use law after the date of
          acquisition by the owner of the property in a manner that reduces the
          fair-market value of the property, the owner shall be entitled to
          just compensation."

          Officials worry they will either have to abandon attempts to regulate
          growth or repeatedly pay big money to landowners who oppose planning
          and zoning regulations.

          If zoning regulations forbid putting a junkyard next to your house,
          the city or county may have to pay the junkyard owner or repeal the
          ordinance, according to an analysis from the Idaho Association of
          Counties.

          So, either the junkyard goes in or the taxpayers pay to keep it out.

          Opponents of the initiative point to Oregon where Measure 37, a
          similar initiative, passed in 2004.

          Despite letting most landowners ignore land-use regulations, the
          state faces more than 3,000 claims totaling in the neighborhood of
          $4.5 billion.

          The Idaho initiative earned a spot on the November ballot after
          conservative activist Laird Maxwell launched a $330,000 campaign to
          pay signature gatherers. New York libertarian activist Howard Rich
          has been identified as the source of much of the Idaho money and
          initiatives in other states. Similar initiatives are on the ballots
          in Washington, Montana, Nevada, Arizona and California.

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