Prop. 2 ‘not about eminent domain’

BOISE – At first glance, Idaho’s Proposition 2 seems to be about limiting the government’s eminent domain power – half the initiative is taken up with that.

But the provisions in the initiative match up virtually word-for-word with HB 555, legislation restricting eminent domain, or the power of government to condemn private property, that Idaho’s Legislature passed unanimously this year. About the only difference is that the paragraphs are in a different order.

As a result, it’s not that part of the initiative that changes Idaho’s laws – it’s the second half, which requires government to pay property owners if any land-use regulation or change in farming or forest practice rules diminishes their potential profits from full development of their land.

“This is not about eminent domain,” said Coeur d’Alene attorney Jerry Mason, who represents 10 Idaho cities and the Association of Idaho Cities. “Eminent domain was the front-door bait to get signatures on the petitions, in order to sneak in the regulatory takings part. That is very clear.”

Laird Maxwell, head of “This House Is My Home” and chief sponsor of the initiative, said, “I don’t know what each individual signature gatherer said, but I know from day one I’ve had an opportunity to talk about the nefarious practice of regulatory property (value) decreases. I love talking about it.”

Idaho’s measure, which made the ballot thanks to $330,000 in funding from two out-of-state groups, the Fund for Democracy in New York and “America At Its Best” in Kalispell, Mont., goes further than the Oregon initiative it was modeled on, Measure 37, or a similar measure now pending in Washington, because it doesn’t ask government to either pay property owners or waive the offending regulation. Idaho’s measure just says to pay.

Unlike the other two measures, though, it’s not retroactive, applying only to regulations enacted in the future. However, the Idaho attorney general’s office noted in its review of the measure that it’s unclear whether an amendment to a regulation would cause the entire regulation to be considered a new one, and that’s an area likely to be litigated.

Heather Cunningham, a Boise land-use attorney and advocate for Proposition 2, said government could repeal the regulation entirely within 90 days to avoid paying up.

Cunningham said if government wants to enact new land-use rules for the public good, like requiring more open space, that’s fine. “Why shouldn’t the public be willing to pay for it, if it’s a public benefit?” she asked.

Government, she said, gets a potential “free pass” under the initiative if it just does away with the offending law. “Government has 90 days to remove the regulation or pay the claim,” she said. “They can remove the regulation and walk away from it.”

Opponents of the measure, which include cities, counties, neighborhood associations, chambers of commerce and more, say it would frustrate efforts to protect neighborhoods and to make sure growth is managed in a way that prevents it from ruining Idahoans’ existing quality of life.

The measure calls for payments to a property owner who loses potential value, but not to that owner’s neighbor – even if a development on that owner’s land ends up devaluing the neighbor’s property.

Mason called the initiative a “radical concept” equivalent to “civic vandalism.”

He noted that Coeur d”Alene never had a height restriction historically because the subject just never came up. Then, in the past four to five years, the city began seeing proposals for high-rise condominium towers of as much as 30 stories in the middle of downtown.

So the city issued a moratorium and began developing height limits. If Proposition 2 were in effect and height limits were imposed, the city would potentially have to pay anyone who claimed they could have built higher than the limit and made more money.

“You could build to the sky,” Mason said. “Any limit imposed by that ordinance would have to be compensated. … This is the kind of thing that can lead to unnecessary mischief.”

Maxwell disputed that, saying no one could prove they realistically could have built a viable condo tower of, say, 60 stories in downtown Coeur d’Alene. “That’s pie in the sky,” he said. “They’re not gonna pay phony claims.”

However, the initiative doesn’t even require that the owner submit plans to build the potential project. The owner just has to file a claim for payment.