Town Crier
Property Wrongs
first published by Daily News, September 6, 2006

On November 7, Idaho voters will be asked whether they wish to fundamentally change one of the powers exercised by government and oh, by the way, destroy our communities.
I am not exaggerating.

The issue is Proposition 2, a voter initiative that addresses eminent domain and regulatory takings.
The Fifth Amendment of the U.S. Constitution addresses the fundamental relationship of the citizens and the state. It concludes, "nor shall private property be taken for public use, without just compensation." Taking private property for the common good is referred to as "eminent domain."

Eminent domain is most often used to build necessary public infrastructure such as highways, public buildings, airports, etc. That changed last year when the US Supreme Court issued a controversial decision in the case of Kelo v New London. In Kelo, the Court found that it was within the authority of the Fifth Amendment for private property to be taken by the state and be given to another private party if the resultant economic was deemed to be in the best interest of the public. I believe it was a bad decision. So did the Legislature when it slammed the door shut on this decision with legislation more narrowly defining eminent domain in Idaho.

However, that wasn't good enough for some self-described "libertarians" led intellectually by the Cato Institute of Washington, DC, and financially by Howard Rich (a wealthy NYC landlord). One of the unproven theories that form the bedrock of their political faith is that any government regulation of private property is a "regulatory taking" forbidden by the Fifth. Don't like your neighbor's plan to build a chemical plant (or a slaughterhouse or a hog farm orS╣) next to your house or your business or your children's school? Regulatory takings would have you pay him from your taxpayer pocket for all the "lost value" he claims for not being able to use his property for any use he wishes.

Having argued and lost that argument before the Supreme Court back in 1994 in Lucas v South Carolina Coastal Council (the Court ruled that unless a piece of property was made "valueless" by regulation it was not a taking) and having failed to convince Congress to take up their cause, takings backers went looking for other ways to force their radical views on the country. They tried in the state legislatures: I was in Boise lobbying for Idaho conservation interests when they tried pushing it in 1995. Idaho's reaction was a good one: all land use decisions must now be reviewed under guidelines written by the Attorney General to determine whether they constitute a taking and to provide for redress of grievances if a property owner believes he has been wronged (67-80 et seq Idaho Code).  But this still wasn't enough for the Cato Institute and their backers.

Hiding behind the notoriety of the Kelo decision, Howard Rich has shelled out big bucks to buy "regulatory takings" space on the ballots of several Western states. In Idaho, it was to the tune of $332,050 to pay signature gatherers to qualify Proposition 2 as a voter initiative for this November's ballot.

Proposition 2 is a sham. It has two parts. The first part redundantly addresses Kelo by word-for-word restating the law already passed last session (7-701A I.C.). Word-for-word. It adds or subtracts absolutely nothing from what currently stands as law. What it does provide is a distraction from the real objective in the second part: eliminating all land use laws by defining them as a regulatory taking. If Proposition 2 passes, we will either have to pay a property owner for his perceived loss of value if he doesn't like being told he can't build a [insert your nightmare here] or stop enforcing land use laws. While I would certainly enjoy not ever going to another zoning meeting or public hearing, I'll take that commitment to community discussion and decision-making any day over the chaos that Proposition 2 will bring.

Our communities, our property rights and the market values of our homes, businesses farms and ranches are at stake here. A few people with wealth and power who would radically change our nation are playing us for suckers. They've failed in the Supreme Court. They've failed in Congress. They've failed in the Idaho Legislature.  Will they fail with Idaho voters?  Let's hope so.

Passage of Proposition 2 will not protect your property rights. It will place all the values of your property, tangible and intangible, at risk. It's not property right, it's property wrong.

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