Western Voters Weigh Shift in Property Rights Voters across the West will consider initiatives this November to bar state governments from seizing private property through eminent domain. But opponents are most concerned about the initiatives' "regulatory takings" provision, which would allow compensation for the lost value of land affected by environmental regulations.
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Western Voters Weigh Shift in Property Rights

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Western Voters Weigh Shift in Property Rights

Western Voters Weigh Shift in Property Rights

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This November, voters across the West are considering initiatives backed by people who say they want to strengthen private property rights. The proposals are similar because they're part of a coordinated effort by libertarian and small government groups. Several of the measures have been challenged 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. Initiatives in California, Washington, Arizona and Idaho will be on the ballot.

In the first of two reports, NPR's Jeff Brady examines the potential effects of the initiatives and the motives of supporters.

JEFF BRADY: Few people in Idaho have heard of Proposition 2. The campaign is just getting underway. But many are familiar with the Supreme Court's eminent domain decision a year ago.

In the Kelo case, 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(ph) from Bellevue, Idaho says that's not fair.

Mr. JOHN MILLS (Resident, Bellevue, Idaho): 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. No way!

BRADY: 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 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 him.

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(Soundbite of footsteps)

BRADY: Terrazas steps out of his truck then surveys 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.

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BRADY: 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 a million dollars each.

Mr. ED TERRAZAS (Resident, Blaine County, Idaho): This is something that we've wanted to do. It's been a dream, a goal, a vision for a lot of years. I mean the vision lasted longer than our marriage.

BRADY: 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.

Mr. TERRAZAS: And I think again that's the reason why Prop 2 is so important, is that 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.

BRADY: 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 had the houses been built? What if he said he's planned to build a hundred 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.

Ms. SARAH MICHAEL (Chairwoman, Blaine County Commission): I can tell you for sure it's going to be a lawyer's dream.

BRADY: Sarah Michael chairs the Blaine County Commission. She says 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.

Ms. MICHAEL: For Blaine County, if that were to happen, it would impact our quality of life that we've tried to shepherd for 30 years.

BRADY: Blaine County, like much of the West, has seen huge population growth. Local governments generally have tried to regulate that 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 if voters pass Prop 2, there will be unintended consequences.

Ms. ELAINE CLEGG (Boise City Council, Idaho): 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.

BRADY: Clegg says the most insidious element of the proponents' campaigns is that they focus on the eminent domain issue stemming from the Kelo case, but not on the so-called regulatory takings provision, which she says will cause a lot more problems. Clegg calls this approach a classic bait-and-switch.

Ms. CLEGG: They're baiting you with eminent domain, telling you that this is going to fix eminent domain. 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.

BRADY: 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.

Ms. CLEGG: It went into effect July 1st. There will not be any changes in how eminent domain is regulated in the state of Idaho if this initiative passes.

BRADY: 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 Its Best and Americans for Limited Government - have spent millions supporting the initiatives in the West.

Laird Maxwell 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.

Mr. LAIRD MAXWELL (Chairman, Idahoans for Tax Reform): Yes, people understand Kelo because it's been hugely advertised and talked about in the media. 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.

BRADY: And Maxwell says the two are closely related. He says there's little difference between someone taking your house or taking away some of the value of your property.

Mr. MAXWELL: The same results are there. Sometimes your house just might 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?

BRADY: And that gets into what motivates the group that have put these initiatives before voters across the West. We'll explore that in part two of this story tomorrow.

Jeff Brady, NPR News.

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NEARY: Legal experts disagree on whether the Supreme Court's Kelo decision on the use of eminent domain to seize private property went too far. To follow a debate between two professors, go to npr.org.

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