Western Voters Consider Property Rights Changes

Voters in several western states will vote on new property rights initiatives on the ballot this November. The measures would mandate that the government compensate people if regulations are enacted that decrease property values.

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Voters in five western states are considering initiatives this November that supporters claim will strengthen individual property rights. Libertarians and small government groups have spent millions of dollars to get those initiatives on the ballots. They say governments have too much control over private property. They face opposition from people who contend the real goal is to make it almost impossible for local governments to pass new environmental and zoning rules.

Here's NPR's Jeff Brady with the second of two reports.

JEFF BRADY: Momentum for the initiatives started with a Supreme Court ruling last year on eminent domain. The Kelo decision said local governments have the right to condemn a person's property and then transfer it to someone else for economic development.

John Tillman is with Americans for Limited Government.

Mr. JOHN TILLMAN (President, Americans for Limited Government): What the Kelo decision showed us is that our property rights protections, that are supposedly enshrined in the Constitution, are on very shaky ground.

BRADY: Tillman's group, along with several others, is largely responsible for the initiatives showing up on ballots in California, Washington, Idaho and Arizona. All but the Washington initiative addressed the Kelo issue, but most also include another provision that would have a much wider reach. It says that if a government passes a regulation that reduces the value of someone's property, that person can file a monetary claim against the government.

Local officials say that if the initiatives pass they'll be reluctant to approve any new regulations, fearing big money claims they can't afford to pay. That would be just fine with Laird Maxwell; he sponsored the Idaho initiative.

Mr. LAIRD MAXWELL (Chairman, Idahoans for Tax Reform): They hurt people. Government planners hurt people because they think they are so all knowing they try to plan for the future for things that haven't even been invented yet.

BRADY: Instead of land use planning and zoning, which he considers pure socialism, Maxwell imagines a world where market forces are all that guide development. He admits that would be messy. But he says in the end it would better serve the common good by creating a society based on what the individual wants. He states the purpose of the initiative in the West very simply.

Mr. MAXWELL: It's the restoration of our traditional property rights.

Professor CAROL ROSE (Professor of law, Yale University): That's really just empty rhetoric.

BRADY: Carol Rose is Professor emerita at Yale Law School. She specializes in property law and calls the initiatives a sneak attack on land use planning. She says in the U.S., people have never been able to do whatever they want with their property.

Prof. ROSE: Property ownership has always involved responsibilities as well as entitlements. So that, yes, indeed you are able to do certain things with your property as you wish and other people can't tell you what to do and what not to do. But you have to do that taking into account the needs of the larger community and the needs of your neighbors.

BRADY: As the world has changed, Rose says governments have drawn up new regulations to address problems. For example, the development of skyscrapers in cities prompted zoning and height limits. In suburban areas, regulations kept smelly hog farms away from subdivisions.

In the West, half the land is owned by the federal government. Backers of these initiatives have tapped into a long-simmering resentment when it comes to government regulation of land. But the funding and much of the guidance for the campaigns comes from far outside the region.

Americans for Limited Government keeps the names of donors secret, but the group's chairman, New York real estate developer Howard Rich, has long been a supporter of efforts to reduce the size of government. Backers of initiatives in the West say the hope is that if they're successful this November, the proposals will spread to other states.

Jeff Brady, NPR News.

INSKEEP: To catch up on those ballot initiatives and hear part one of our story, just go to npr.org.

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Western Voters Weigh Shift in Property Rights

Hear Part 2 of This Report

Ed Terrazas

hide captionEd 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.

Jeff Brady for NPR

Across the West

Four Western states will have ballot initiatives this November that move to strengthen property rights:

Arizona: Prop 207 Private Property Rights Protection Act

— Opponents of Proposition 207

California: Prop 90 'Protect Our Homes' Act

— Opponents of Proposition 90

Idaho: Prop 2 'Private Property Rights Protection Initiative'

— No opponent page is available, but Idaho League of Cities has put up an information page.

Washington: I-933 'Property Fairness Initiative'

— Opponents of Initiative 933

hillsides in Blaine County, Idaho

hide captionMany 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.

Jeff Brady, NPR

Debating Eminent Domain

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?"

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