Jeff Brady for NPR
Ed Terrazas of Hailey, Idaho, erected a flag as a protest on the 115 acres he owns, after the county said he could build only two houses on his land instead of the planned four.
Four Western states will have ballot initiatives this November that move to strengthen property rights:
Jeff Brady, NPR
Many of the hillsides in Blaine County, Idaho, are kept in their natural state thanks to development regulations that keep houses down in the valleys. If Proposition 2 passes, County Commissioner Sarah Michael says it would be difficult to pass similar regulations in the future.
In February 2005, the U.S. Supreme Court upheld the city of New London, Connecticut's right to use eminent domain to seize a person's private property and give it to another property owner for economic development. The so-called Kelo decision sparked an uproar among property owners across the U.S.
Follow an interesting debate between two law professors on whether Kelo goes too far: 'Can Your Town Take Your Home?'
Voters across the West are considering initiatives this November that backers say would strengthen private property rights. The proposals are similar to each other. That's because they're part of a coordinated effort by libertarian and small-government groups.
Opponents — including government and business organizations — challenged several of the measures in court. In Montana, a judge said backers gathered signatures illegally and the proposal was kicked off the ballot. In Nevada, the proposal was trimmed down significantly because it violated the single-subject rule. But initiatives will be on the ballot in California, Washington, Arizona and Idaho.
Few people in Idaho have heard of Proposition 2, as the measure is called there. The campaign is just getting underway.
But many are familiar with the Supreme Court's eminent domain decision last year. In that case, Kelo v. New London, justices ruled that it's legal for local governments to condemn someone's property and then transfer it to someone else for economic development — say, a shopping mall or a high-end resort.
John Mills, a resident of Belleview, Idaho, says that's not fair. "They're going to boot you out of your house so that Joe Smith, the developer, can put in his development. I think all of us would say, "Hey! No way!"
Prop 2 and three other initiatives in the West would stop this practice. The Kelo decision has been the focus of the campaigns. Check proponents' Web sites, and several show a suburban house with a huge backhoe shovel looming overhead.
But there's more to most of these initiatives than eminent domain. Check the fine print and you'll find part two of the proposals. It's patterned after a measure passed in Oregon two years ago. It delivered a severe blow to Oregon's statewide land-use planning system. This provision says that, if an ordinance decreases the value of someone's property, then the owner can file a monetary claim against the government.
In Blaine County, Idaho, Ed Terrazas says that would have protected the value of the 115 acres he owns with his ex-wife, just outside the town of Hailey. It spreads up a steep hillside of sagebrush, juniper and dry grass.
As Terrazas walks across the property, he says that for nearly 20 years, he and his ex-wife planned to build four houses here. They'd sell two of them and then retire in the other two debt-free. In this resort area, there are houses that fetch more than $1 million each.
"This is something that we've wanted to do. It's been a dream, a goal, a vision for a lot of years," Terrazas says. "I mean, the vision lasted longer than our marriage."
But in the meantime, the county government passed rules aimed at keeping hillsides free of development. The goal is to protect the character of this fast-growing area. Now, Terrazas says, he's allowed only two houses on his land… and his retirement dream is destroyed.
"That's the reason why Prop 2 is so important," he says. "There's so many good, honest, decent people that are being victimized by their government. And we're just one example, we're small potatoes. It's happening across the land, and it's time we stopped it."
Stopping Plans for the Future?
Terrazas says Prop 2 would force the county to pay him for his loss. But would he be paid based on the speculative value of his land, if the houses had been built? What if he said he'd planned to build 100 houses — would Blaine County have to pay more under that scenario? These are questions that, if Prop 2 and the other initiatives pass, would be answered in court.
"I can tell you for sure, it's going to be a lawyer's dream," says Sarah Michael, the chair of the Blaine County Commission.
Michael says that if voters approve Prop 2, local officials will be afraid to pass any new regulations, out of worries they'll face claims that could cost millions to settle. Essentially, she says, all efforts to plan for the future would stop.
"For Blaine County, if that were to happen, it would impact our quality of life that we've tried to shepherd for 30 years," she says.
Blaine County, like much of the West, has seen huge population growth. Local governments generally have tried to regulate growth and limit sprawl, to keep from overburdening schools or running out of scarce water.
A few hours away, Boise is yet another fast-growing Western city. City council member Elaine Clegg has been a strong proponent of regulated growth. She says that if voters pass Prop Two, there'll be unintended consequences.
"Gosh, if this thing passes, maybe that coal-fired plant is going to get built next to your house, because we won't be able to pay that company enough money to keep them from building it," Clegg says.
A 'Hidden' Provision with Big Consequences
Clegg says the most insidious element of the proponents' campaigns is that they focus on the eminent-domain issue, stemming from the Kelo case — not on the so-called "regulatory takings" provision, which, she says, would cause a lot more problems. Clegg calls this approach a classic bait-and-switch.
"They're baiting you with eminent domain, telling you that this is going to fix eminent domain," she says. "And then they're switching in regulatory takings, and actually getting you to vote for that, when you might not if you really knew what it was about."
In some cases, the media have compounded the problem. Recent articles in Nevada and California referred only to the eminent-domain provision of the initiatives, with no mention of the so-called "regulatory takings" sections.
In Idaho, Councilwoman Clegg says there's not even any reason to focus on eminent domain, because the state legislature already passed a law to address Kelo-related cases. It went into effect July 1.
"There will not be any changes in how eminent domain is regulated in the state of Idaho if this initiative passes," Clegg says.
Who is Behind the Initiatives?
The initiative got on the Idaho ballot with money from small government groups — more than $330,000, according to the most recent campaign-finance reports. Those same groups — the Fund for Democracy; America at It's Best and Americans for Limited Government — have spent millions supporting the initiatives in the West.
Laird Maxwell of Idahoans for Tax Reform sponsored the Idaho initiative. He's a longtime advocate for reducing the size of government through term limits, tax reductions and spending limitations. Maxwell says he's not trying to pull a bait-and-switch.
"People understand Kelo because it's been hugely advertised and talked about in the media," Maxwell says. "What I'm trying to do is elevate the just-compensation-for-regulatory-takings to the same level. It's not a bait-and-switch, it's trying to elevate the thing."
Maxwell says there's little difference between someone taking your house or taking away some of the value of your property.
"The same results are there," he says. "Sometimes, your house might just take a little longer to get crushed. But the question is, are you in charge of your own property? Or is the government in charge of it?"