Along with similar ballot measures in four other Western states, Idaho's Proposition 2 has received national attention. In an Oct. 8 story titled "Anger Drives Property Rights Measures," The New York Times illustrated opposing sides of the issue by interviewing a south Blaine County rancher and a Sun Valley City Council member. Both locally and throughout the West, the battle involves fundamental differences of opinion about the rights of property owners versus those of the community.
Proposition 2 has two components. The first prohibits the use of eminent domain—the power of government to expropriate private property for public use—whenever the property would be turned over to another private owner. The provision was motivated by the U.S. Supreme Court's Kelo decision, which approved the use of eminent domain to promote downtown renewal.
However, such takings are already illegal in Idaho, following the passage of legislation in the 2006 session. Some opponents of Proposition 2 claim that its drafters slyly included the eminent domain provision to capitalize on widespread disapproval of the Kelo decision. However, Proposition 2's main promoter, conservative activist Laird Maxwell, said in an interview that the proposed initiative had to be submitted to the secretary of state before the Legislature passed its bill.
The part of Proposition 2 that would actually change the law is its second component, which would require local governments to pay landowners whenever new land-use laws, such as zoning restrictions, reduce the value of their property.
"Voting 'Yes' on Proposition 2 allows property owners to go to court and determine the amount of value that was taken by the land-use law, and receive 'just compensation,'" proponents state in the 2006 Idaho Voters' Pamphlet. "It's only fair."
Local supporters of the measure include Blaine County Commission candidate Mickey Garcia, who spoke in its favor during last week's Pizza and Politics forum in Hailey.
"If you're going to take somebody's land, you have to compensate them," he said. "Whenever you can just take it for free, (people) are going to say 'yes,' but when you have to buy it, it becomes another question."
However, the fact that Maxwell is also chairman of Idahoans for Tax Reform, and that compensation payments would be funded by taxpayers, raises the question of whether the intent of its supporters is less to obtain compensation than to weaken government planning authority.
In an interview, Maxwell said he'd prefer to see local governments reach their land-use-planning goals more by offering incentives and arranging deals than by passing ordinances.
"We don't know the nature of what can come out by working in the marketplace," he said.
Locally, support for Proposition 2 appears to have been kindled primarily by the county's 2025 ordinances, which downzoned some south-county parcels from A-10 to A-20, and, if all are passed, will increase setbacks in riparian areas and wetlands, and establish wildlife corridors that also include building setbacks.
"What 2025 represents is the government's failure to tap into the tremendous intellectual pool and resources that we have here," said Ed Terrazas, a Woodside resident and board member of Citizens for Smart Government, a local organization formed to support the measure. Had Proposition 2 been in effect when the 2025 ordinances were drafted, Terrazas said, "it would have forced government and private stakeholders to sit at the table and work out an equitable solution, and there may have been some compensation to landowners."
Dennis Kavanaugh, a local builder and another board member of Citizens for Smart Government, said current eminent domain law does not adequately protect landowners, since the U.S. Supreme Court has ruled that compensation is not required if government actions leave "residual value" in a property. What if, due to increased building setbacks, someone can't build as large a house as he planned to when he bought his property? "What constitutes 'residual value?'" he asked. "Is that correct or fair?"
Kavanaugh said he's willing to pay higher taxes to fund compensation to landowners in cases when a local government decides that land-use restrictions are absolutely necessary for the public good.
"If they want it, they'll have to consider the tax consequences," he said. "It's a moral issue. Just because you can (regulate) doesn't mean you should."
A long list of opponents to the measure includes the expected ones, such as the Idaho Association of Cities, the Idaho Conservation League and the Sierra Club, as well as more surprising names, such as the Idaho Association of Commerce and Industry, the Idaho Association of Realtors, Building Contractors of Southwestern Idaho, Idaho Gov. Jim Risch and U.S. Rep. Butch Otter, R-Idaho.
"The initiative could be devastating to planned growth and development in Idaho and financially crippling to cities and counties," the Association of Idaho Cities states on its Web site.
In the voters' pamphlet, opponents ask voters to "imagine that someone wants to locate a junkyard or gravel pit next to your home. Under Proposition 2, you and your neighbors have no recourse: either your property taxes pay the person NOT to do it or you watch the investment in your property disappear."
Maxwell called such statements "part of the disinformation campaign that the opponents have been spreading." He said existing zoning laws already prohibit such things, and pointed out that Proposition 2 would only apply to laws passed after the date on which it would take effect, Nov. 17, 2006.
However, other concerns raised by opponents appear more realistic. Blaine County Commissioner Tom Bowman sees virtually no end to the claims that Proposition 2 could prompt, given that the measure appears to require compensation for potential losses any time a new law limits what a landowner could have done with his property. When property owners see one person file a claim, he said, "then anybody could say, 'Hey, that's a good deal, let me get in line.'" He said that in order to risk paying multiple claims, municipalities would just stop passing planning ordinances.
"Whatever rules are in place now would be permanent," he said.
Bowman also questioned the extent of property rights to which proponents contend Americans are entitled.
"There's nothing that says you have the right to subdivide, that you have a right to put a billboard on your property," he said. "What the government does is protect improvements you've made on your land and protect against trespass. Beyond that, there is no list of property rights. Property rights come down to what the people in the community want them to be."
Even some organizations and candidates that are generally property-rights advocates have come out in opposition to Proposition 2.
"The bottom line is Proposition 2 is poorly drafted, and will likely have lasting negative impacts on Idaho's economy and land-use planning efforts," stated Michael James Johnston, president of the Idaho Association of Realtors, in a press release. "If Proposition 2 passes, it will introduce great uncertainty in the marketplace and will result in a myriad of lawsuits as property owners try to discern the true intent of the language."
When Proposition 2 was submitted to the Idaho secretary of state last spring, Attorney General Lawrence Wasden advised that the measure is legally problematic. He stated that it could violate a provision of the Idaho Constitution that limits all acts to "one subject and matters properly connected." He stated that his office could not predict whether a court would find that eminent domain and regulatory takings have enough of a rational connection to be legally included in one initiative.
Wasden also noted that a legal question could arise if a land-use law were amended after Proposition 2 took effect—would the entire law or just the amended part become susceptible to Proposition 2's provisions? "This has a strong likelihood of resulting in a significant amount of litigation to fully define the boundaries of this proposed statute," he said.
Blaine County Commission candidate Dale Ewersen, generally a property-rights advocate, has stated his opposition to Proposition 2 on the grounds that a constant threat of paying claims would leave local governments with too little flexibility in land-use planning.
All five of the initiatives restricting land-use-planning on ballots throughout the West are based on Oregon's Proposition 37, passed in 2004. However, that and the measures on the ballots in Montana and Arizona this November give municipalities the option of waiving their land-use laws in particular cases, in order to keep them on the books but avoid expensive payments. Proposition 2, as well as the ballot measures in California and Nevada, contain no such provision.
Municipalities throughout Idaho, including those in Blaine County, are engaged in a flurry of activity to pass the kinds of ordinances they fear they will be unable to afford if voters approve Proposition 2. All of Blaine County's cities have recently passed or are considering ordinances that require the inclusion of deed-restricted housing in new developments, limit building size, preserve historic buildings, restrict hillside development or create open space.
Ironically, if Proposition 2 fails to pass, its inclusion on the ballot will have stimulated, rather than restricted, the passage of new land-use-planning laws.