Could Idaho voters limit municipal annexation by requiring approval from a majority of property owners in the area before a city annexes it?

Plain-English summary

Petitioner William H. Thomas filed an initiative in November 1999 that would have amended Idaho Code § 67-6525 to require, before any annexation of unincorporated territory, "a favorable concurrence of the majority of affected property owners within the unincorporated area." The AG's certificate of review identified three serious problems.

First, statutory conflict. The existing Idaho Code § 50-222(1) authorized "forced annexation" under specified conditions, including land within a city's area of impact and land laid out in small blocks or sold off in tracts under five acres. Forced annexation under that provision did not require voter approval. The proposed amendment to a different code section (§ 67-6525) would conflict directly with the existing § 50-222(1) framework, and the petitioner had not addressed the conflict.

Second, election mechanics. The phrase "favorable concurrence of the majority of affected property owners" implied some kind of election, but the initiative did not specify how the election would be conducted, who would oversee it, or who would pay for it. Existing Idaho law generally did not provide for elections in unincorporated areas; an election in the proposed sense would have been unauthorized under then-current law.

Third, and most fundamentally, the property-owner-only voting was unconstitutional. Idaho Const. art. 1, § 20 provides that "[n]o property qualifications shall ever be required for any person to vote or hold office except in school elections, or elections creating indebtedness, or in irrigation district elections, as to which last-named elections the legislature may restrict the voters to land owners." A footnote noted that the Idaho Supreme Court had already invalidated the school-elections exception in Muench v. Paine. By limiting voting to "property owners within the unincorporated area," the proposed initiative ran straight into art. 1, § 20.

The AG concluded a reviewing court would likely find the initiative unconstitutional under art. 1, § 20.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Idaho's annexation statutes have been substantially amended since 1999, including the forced-annexation provisions in Idaho Code § 50-222. Idaho Const. art. 1, § 20 remains in effect, and the constitutional analysis (no property qualifications for voting outside the listed exceptions) remains good law. Anyone advising on a current Idaho annexation question should consult the current statute.

Common questions

Q: What's the difference between this initiative and the March 2000 annexation initiative?
A: The March 2000 initiative required a vote of "qualified electors" in the unincorporated area, that is, all eligible voters, with the city paying for the election. The November 1999 initiative restricted the vote to "property owners," which the Idaho Constitution forbids outside narrow exceptions. The 1999 version got a critical certificate; the 2000 version got a brief approving certificate. The difference is that property-only voting is constitutionally forbidden, while voter-only voting is not.

Q: What is "forced annexation"?
A: A statutory term for annexation that proceeds without resident consent, typically authorized when the land is contiguous to a city, lies within the city's area of impact under cooperative city-county planning, and meets statutory criteria like being subdivided into small blocks or sold off in tracts. Idaho Code § 50-222(1) (in 1999) authorized this in some circumstances. The 1999 initiative would have layered a property-owner vote on top, creating internal inconsistency.

Q: What did Muench v. Paine do to the school-elections carve-out?
A: The Idaho Supreme Court in Muench v. Paine struck down property qualifications for voting in school district elections, even though art. 1, § 20 explicitly listed school elections as an exception. The court relied on federal Equal Protection Clause precedent that had invalidated similar property requirements. The footnote in this certificate references that holding to clarify that even the textual school-elections exception was not enforceable.

Q: What was the AG's role here?
A: Idaho Code § 34-1809 requires the AG to review every initiative within twenty working days for matters of substantive import. The recommendations are advisory; the petitioner can accept or reject them. The AG also drafts the ballot title.

Background and statutory framework

The Idaho Constitution at art. 1, § 20 broadly forbids property qualifications for voting or holding office, with three textual exceptions for school elections, debt elections, and irrigation district elections. The Idaho Supreme Court invalidated the school-elections carve-out in Muench v. Paine on Equal Protection grounds. The remaining exceptions for debt elections and irrigation district elections survive.

Forced annexation under Idaho Code § 50-222(1) (in 1999) allowed cities to annex contiguous unincorporated property in defined situations. The areas-of-city-impact framework at Idaho Code § 67-6526 is the planning context for which lands a city may eventually annex.

Initiative review under Idaho Code § 34-1809 is a quick-turn advisory mechanism, with twenty working days for the AG to issue a certificate of review.

Citations and references

Constitutional provisions: Idaho Const. art. 1, § 20 (no property qualifications for voting or office).

Statutes: Idaho Code §§ 34-1809, 50-222, 50-222(1), 67-6509, 67-6525, 67-6526.

Idaho cases: Muench v. Paine, 94 Idaho 12, 480 P.2d 196 (1971) (school-elections property-qualification exception held unconstitutional).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C110599.pdf

Original opinion text

November 5, 1999
Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Proposed Initiative Regarding Amendment to Idaho Code § 67-6525

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on November 3, 1999, that would amend Idaho Code § 67-6525. Pursuant to Idaho Code § 34-1809, this office has reviewed the proposed initiative and has prepared the following advisory comments. It must be stressed that, given the strict statutory timeframe in which this office must respond and the complexity of the legal issues raised in this proposed initiative, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

BALLOT TITLES

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares the titles, if petitioners would like to propose language with these standards in mind, we would recommend that they do so and their proposed language will be considered.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative would amend Idaho Code § 67-6525 in the following manner:

Prior to annexation of an unincorporated area, a city council shall request and receive a recommendation from the planning and zoning commission, or the planning commission and the zoning commission, on the proposed plan and zoning ordinance changes for the unincorporated area. Each commission and the city council shall follow the notice and hearing procedures provided in section 67-6509, Idaho Code. Annexation shall not take place until a favorable concurrence of the majority of affected property owners within the unincorporated area is established. Concurrently or immediately following the adoption of an ordinance of annexation, the city council shall amend the plan and zoning ordinance.

(Proposed language underlined.) If enacted by the voters, the new language would appear to limit a city's ability to annex unincorporated land by conditioning annexation on approval by property owners within the area proposed for annexation. This proposal raises a number of potential legal problems.

First, annexation is currently governed by Idaho Code §§ 50-222 through 50-233. These provisions establish a detailed procedure for municipalities to follow when annexing adjacent and nonadjacent territory. In particular, Idaho Code § 50-222(1) currently authorizes "forced annexation" under certain circumstances:

[A]ny land lying contiguous or adjacent to any city in the state of Idaho, or to any addition or extension thereof may be annexed by the city only if the land is lying in the area of city impact as determined by procedures contained in section 67-6526, Idaho Code, and the land is laid off into blocks containing not more than five (5) acres of land each, whether the same shall have been or shall be laid off, subdivided or platted in accordance with any statute of this state or otherwise, or whenever the owner or proprietor or any person by or with his authority, has sold or begun to sell off such contiguous or adjacent lands by metes and bounds in tracts not exceeding five (5) acres.

Section 50-222(1) does not condition annexation on voter approval. Therefore, section 50-222(1) and the amendment proposed by the initiative could be in direct conflict with each other. The proposed amendment should be revised to resolve the potential conflict with Idaho Code § 50-222(1).

Next, the reference in the proposed language to a "favorable concurrence of the majority of affected property owners" appears to contemplate some type of election. However, the proposed initiative does not specify how that election would occur or who would bear the cost of such an election. The proposed initiative should probably be modified to set out a procedure for holding the elections that appear to be anticipated. In addition, the initiative should specify how the election will be funded. This is particularly important since the proposed initiative appears to anticipate some type of election in an unincorporated area. Currently, such an election would be unlawful.

Finally, the "favorable concurrence" that is incorporated into the proposed initiative is limited to "affected property owners within the unincorporated area." The Idaho Constitution specifically prohibits nearly all restrictions on voting based on property ownership. Art. I, § 20 of the Idaho Constitution states:

No property qualifications shall ever be required for any person to vote or hold office except in school elections, or elections creating indebtedness, or in irrigation district elections, as to which last-named elections the legislature may restrict the voters to land owners.

Since the proposed initiative would limit voting to "property owners within the unincorporated area," a reviewing court is likely to determine that the proposed initiative is invalid because it violates Art. I, § 20 of the Idaho Constitution.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner William H. Thomas by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General

The Idaho Supreme Court invalidated the exception for school district elections in Muench v. Paine, 94 Idaho 12, 480 P.2d 196 (1971).