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<DIV><FONT face=Arial size=2>Bruce, 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.</FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2>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.</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></FONT> </DIV>
<DIV><FONT face=Arial size=2>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?</FONT></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2>g</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=jeanlivingston@turbonet.com
href="mailto:jeanlivingston@turbonet.com">Bruce and Jean Livingston</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> ; <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 1:14
PM</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>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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