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<DIV><FONT face=Arial>Gary, </FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>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 <FONT color=#0000ff><STRONG>["shall"]
</STRONG></FONT>be paid) when a property owner's ability to use land is
"limited <FONT color=#0000ff><STRONG>or</STRONG></FONT> prohibited" [<FONT
color=#0000ff><STRONG>meaning either</STRONG></FONT>] by "the enactment
<STRONG><FONT color=#0000ff>or </FONT></STRONG>enforcement" [<FONT
color=#0000ff><STRONG>again, meaning either</STRONG></FONT>] 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. </FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>Look at the language of the statute again:</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><STRONG>"<FONT color=#ff0000>If an owner's ability to <U>use, possess,
sell, or divide</U> private real property</FONT> <FONT color=#008000><U>is
limited or prohibited</U></FONT> <FONT color=#0000ff>by the <U>enactment or
enforcement</U></FONT> <FONT color=#000080>of <EM>any</EM> land-use law</FONT>
<FONT color=#ff0000>after the date of acquisition by the owner of the
property</FONT> <FONT color=#808000>in a manner that reduces the fair-market
value of the property</FONT>, the owner<U> shall</U> be entitled to just
compensation."</STRONG></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>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. </FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>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.
</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>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 <FONT color=#0000ff><STRONG>to enforce,
</STRONG></FONT>existing laws. </FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>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. </FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>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.</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>Bruce Livingston</FONT></DIV>
<BLOCKQUOTE
style="PADDING-RIGHT: 0px; PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #000000 2px solid; MARGIN-RIGHT: 0px">
<DIV style="FONT: 10pt arial">----- Original Message ----- </DIV>
<DIV
style="BACKGROUND: #e4e4e4; FONT: 10pt arial; font-color: black"><B>From:</B>
<A title=jampot@adelphia.net href="mailto:jampot@adelphia.net">g. crabtree</A>
</DIV>
<DIV style="FONT: 10pt arial"><B>To:</B> <A title=vision2020@moscow.com
href="mailto:vision2020@moscow.com">vision2020@moscow.com</A> ; <A
title=msolomon@moscow.com href="mailto:msolomon@moscow.com">Mark Solomon</A>
</DIV>
<DIV style="FONT: 10pt arial"><B>Sent:</B> Saturday, September 30, 2006 11:54
AM</DIV>
<DIV style="FONT: 10pt arial"><B>Subject:</B> Re: [Vision2020] Risch Says No
on Prop 2</DIV>
<DIV><BR></DIV>
<DIV><FONT face=Arial size=2>Mark, thank you for your reply. It seems to me
that your first argument</FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV>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.</DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face="Arial Narrow" size=2><FONT face=Arial>...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.</FONT> </FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2>Your second...</FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2><FONT face="Times New Roman" size=3>"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."</FONT></FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2><FONT face="Times New Roman"
size=3>...</FONT> 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.</FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2>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.</FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2>gc</FONT></DIV>
<DIV><FONT face=Arial size=2><STRONG></STRONG></FONT> </DIV>
<BLOCKQUOTE dir=ltr
style="PADDING-RIGHT: 0px; PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #000000 2px solid; MARGIN-RIGHT: 0px">
<DIV style="FONT: 10pt arial">----- Original Message ----- </DIV>
<DIV
style="BACKGROUND: #e4e4e4; FONT: 10pt arial; font-color: black"><B>From:</B>
<A title=msolomon@moscow.com href="mailto:msolomon@moscow.com">Mark
Solomon</A> </DIV>
<DIV style="FONT: 10pt arial"><B>To:</B> <A title=jampot@adelphia.net
href="mailto:jampot@adelphia.net">g. crabtree</A> ; <A
title=vision2020@moscow.com
href="mailto:vision2020@moscow.com">vision2020@moscow.com</A> </DIV>
<DIV style="FONT: 10pt arial"><B>Sent:</B> Saturday, September 30, 2006
10:38 AM</DIV>
<DIV style="FONT: 10pt arial"><B>Subject:</B> Re: [Vision2020] Risch Says No
on Prop 2</DIV>
<DIV><BR></DIV>
<DIV>Hi Gary,</DIV>
<DIV><BR></DIV>
<DIV>As usual, the devil is in the details. The full text of the legislation
can be found at the Sec'y of State website:</DIV>
<DIV><BR></DIV>
<DIV><FONT face="Lucida Grande" color=#000000 size=+1><A
href="http://www.idsos.idaho.gov/elect/inits/06init08.htm">http://www.idsos.idaho.gov/elect/inits/06init08.htm</A></FONT></DIV>
<DIV><BR></DIV>
<DIV>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.</DIV>
<DIV><BR></DIV>
<DIV>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.</DIV>
<DIV><BR></DIV>
<DIV>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.</DIV>
<DIV><BR></DIV>
<DIV>Mark</DIV>
<DIV><BR></DIV>
<DIV>At 9:20 AM -0700 9/30/06, g. crabtree wrote:</DIV>
<BLOCKQUOTE cite="" type="cite">Mark, what am I missing here?<BR><BR>"If
an owner's ability to use, possess, sell,<BR>or divide private real
property is limited or prohibited by the<BR>enactment or enforcement of
any land-use law after the date of<BR>acquisition by the owner of the
property in a manner that reduces the<BR>fair-market value of the
property, the owner shall be entitled to<BR>just compensation."<BR><BR>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.<BR><BR>gc<BR><BR><BR>----- Original Message ----- From:
"Mark Solomon" <msolomon@moscow.com><BR>To:
<vision2020@moscow.com><BR>Sent: Saturday, September 30, 2006 7:29
AM<BR>Subject: [Vision2020] Risch Says No on Prop 2<BR>
<BLOCKQUOTE cite="" type="cite">Risch comes out against property-rights
initiative<BR><BR>By DEAN A. FERGUSON<BR>of the Lewiston
Tribune<BR>9/30/06<BR><BR>Idaho's governor said a property-rights
initiative will have a<BR>"chilling effect" on government and is not
needed to protect property<BR>owners from eminent domain
abuses.<BR><BR>"I suspect probably there are people who want to see this
chilling<BR>effect," Risch told the Lewiston Tribune
Friday.<BR><BR>Proposition 2 has two components.<BR><BR>First, the
initiative forbids use of eminent domain to take private<BR>property and
turn it over to private interests. Second, the<BR>initiative requires
governments to pay owners when regulations limit<BR>a property's
value.<BR><BR>The eminent domain portion is unneeded, Risch
said.<BR><BR>"The Legislature already did that," he said, noting House
Bill 555<BR>passed this year.<BR><BR>The bill responded to a
controversial 2005 U.S. Supreme Court<BR>decision that allowed a
Connecticut city to condemn homes and turn<BR>the land over to private
interests.<BR><BR>Proposition 2 merely copies portions of that
law.<BR><BR>But the second part has sparked outcries from county and
city governments.<BR><BR>"This new language is going to lead to a lot of
litigation," Risch<BR>said. "I have serious reservations about
that."<BR><BR>The initiative reads: "If an owner's ability to use,
possess, sell,<BR>or divide private real property is limited or
prohibited by the<BR>enactment or enforcement of any land-use law after
the date of<BR>acquisition by the owner of the property in a manner that
reduces the<BR>fair-market value of the property, the owner shall be
entitled to<BR>just compensation."<BR><BR>Officials worry they will
either have to abandon attempts to regulate<BR>growth or repeatedly pay
big money to landowners who oppose planning</BLOCKQUOTE>
<BLOCKQUOTE cite="" type="cite">and zoning regulations.<BR><BR>If zoning
regulations forbid putting a junkyard next to your house,<BR>the city or
county may have to pay the junkyard owner or repeal the<BR>ordinance,
according to an analysis from the Idaho Association
of<BR>Counties.<BR><BR>So, either the junkyard goes in or the taxpayers
pay to keep it out.<BR><BR>Opponents of the initiative point to Oregon
where Measure 37, a<BR>similar initiative, passed in
2004.<BR><BR>Despite letting most landowners ignore land-use
regulations, the<BR>state faces more than 3,000 claims totaling in the
neighborhood of<BR>$4.5 billion.<BR><BR>The Idaho initiative earned a
spot on the November ballot after<BR>conservative activist Laird Maxwell
launched a $330,000 campaign to<BR>pay signature gatherers. New York
libertarian activist Howard Rich<BR>has been identified as the source of
much of the Idaho money and<BR>initiatives in other states. Similar
initiatives are on the ballots<BR>in Washington, Montana, Nevada,
Arizona and
California.<BR><BR>=======================================================<BR>List
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