Wednesday, November 1, 2006

Proposition 2: Would it gut land-use planning?

Express Staff Writer

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, following the passage of legislation in the 2006 session, such takings are already illegal in Idaho. 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 properties.

"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."

But statements made by proponents indicate that the measure's intent is less to obtain compensation, which would be funded by taxpayers, than to rein in government planning authority.

Opponents claim that such authority would be gutted. In the voters' pamphlet, they 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."

Given that the measure states that it would not apply to any land-use laws enacted before its effective date, that claim might not apply to places with ample existing land-use regulations. However, other concerns raised by opponents seem more realistic. Local government officials fear that since all affected property owners could file claims of diminution of their property values, whether they had any actual plans to develop those properties or not, the measure would create a freeze on the passage of new land-use-planning laws.

"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.

Proposition 2 and similar measures on the ballots in four other Western states are based on Oregon's Proposition 37, passed in 2004. Since its passage, municipalities in Oregon have been hit with more than $5 billion in compensation claims. Instead of paying them, they have waived enforcement of the law in those cases. However, Proposition 2 contains no such waiver provision, so governments would presumably be faced with the alternatives of paying claims or repealing the laws under which the claims were brought.

Dennis Kavanagh, a local builder and board member of Citizens for Smart Government, which was formed to campaign for the measure locally, said he's willing to pay higher taxes to fund compensation to landowners in cases when a government decides land-use restrictions are absolutely necessary.

"If they want it, they'll have to consider the tax consequences," he said.

When Proposition 2 was submitted to the Idaho Secretary of State last spring, Attorney General Lawrence Wasden 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.

Idaho voters appear closely divided on Proposition 2, with many still undecided. A poll conducted in late October by the Idaho Statesman and Today's 6, an ABC affiliate television station in Boise, found 37 percent support for the measure, 39 percent opposition and 24 percent undecided.

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