‘Takings’ initiative will be on ballot

BOISE – A far-reaching initiative qualified for the November ballot Wednesday, requiring government to pay any Idaho landowner whose property value is diminished by a new land-use law.

“The question is, do you have more faith in the marketplace, or do you have more faith in the finest government planner?” said initiative sponsor Laird Maxwell. “I would argue that the marketplace will reward and punish people more severe than any of the finest government planners ever could dream of.”

The measure, which will be Proposition 2 on the November ballot, goes even further than the controversial Measure 37 in Oregon, on which it’s modeled. The Oregon law requires government to pay a landowner if a new land-use law or regulation will diminish their property value, or waive the law rather than pay. The Idaho initiative just requires payment. It also applies to new regulations on farming or forest practices.

A day before the Idaho initiative qualified for the ballot, the Oregonian newspaper reported that a Portland man has filed a $200 million claim under Measure 37, saying he wants payment for not building a power plant, mining operation and 100-home subdivision inside the caldera of a national volcanic monument in central Oregon.

According to the state’s Web site, Oregon has received claims under the 2004 law totaling $3.7 billion. The Oregon law was overturned in court as unconstitutional last fall, but then the state Supreme Court overruled the lower court and upheld the law in March.

Maxwell qualified Proposition 2 for the Idaho ballot by spending more than $330,000 from two out-of-state groups, the Fund for Democracy in New York and “America At Its Best” in Kalispell, Mont. The New York group provided $237,000. Most went to pay a Colorado firm to gather Idaho signatures.

Wednesday afternoon, Maxwell turned in 49,053 valid signatures to qualify the measure for the ballot, exceeding the required number of 47,881.

Maxwell has been billing the measure as an initiative to restrict the government power of eminent domain, or the power to condemn private property. The measure includes restrictions on eminent domain when the property will be transferred to another private owner – but those restrictions largely mirror House Bill 555, legislation already passed unanimously this year by the Idaho Legislature.

“They may call it an eminent domain initiative, but the reality is the regulatory takings portion of it is what the real substance is,” said Ken Harward, head of the Association of Idaho Cities, which opposes the measure.

Jerry Mason, a Coeur d’Alene attorney who represents the AIC and 10 individual Idaho cities, said Idaho cities and counties could never afford to pay off landowners just to exercise their lawful authority on land-use planning.

“It stands the constitution on its head,” Mason said. “It would simply be a matter of anyone’s imagination as to what types of claims they might want to file under this.”

Mason added, “At first glimpse, it appears to be just incredibly harmful to the processes that have evolved in this state.”

Maxwell said the initiative is part of a national movement that includes proposed ballot measures in Washington, Montana, Arizona and more. “There’s a lot of action going on in numerous states,” he said. “It’s not just what’s good for Idaho. Oregon spurred Idaho, spurred the rest of ‘em. So if Idaho goes well, Arizona and all that, then we build the movement.”

Maxwell said he’s already heard arguments that his initiative would let someone build a hog farm next to someone else’s home, or be paid off by taxpayers. He dismisses that, saying if zoning allows it, the homeowner should “know what’s going on around him.”

“What right does one property owner have telling another property owner what they can do on their land that’s legal?” Maxwell asked.

He has formed an organization and Web site, www.thishouseismyhome.com, to promote the ballot measure.

A third of the signatures to put the measure on the ballot were gathered in Ada County. About 14 percent each were gathered in Kootenai and Bonneville counties, and just over 10 percent in Canyon County.