Could a 2010 Idaho ballot initiative require local governments to pay landowners 120% of value plus costs whenever zoning rules change land use?
Plain-English summary
The proposed initiative would have added a single new section, § 67-6539, to Idaho's Local Land Use Planning Act, imposing a series of property-rights protections including a requirement that government pay a landowner 120 percent of value plus costs whenever a zoning or land-use decision affected use of the property. The initiative would also have purported to limit federal environmental regulations affecting Idaho land.
Attorney General Lawrence Wasden's certificate identified four concerns:
- Drafting placement. The initiative bundled multiple substantive concepts into one new statute. The AG suggested splitting them into discrete statutory sections placed throughout the existing Local Land Use Planning Act so that the relationship to existing law would be clearer.
- Conflict with police powers. The proposal could not impair local governments' constitutional police power. See Idaho Const. art. XII, § 2 and art. XI, § 8. A blanket compensation rule that effectively shut down zoning enforcement would invade those constitutional powers.
- Litigation explosion. The 120-percent-plus-costs compensation rule would attach to "any" change of use. The AG noted this provision would likely make "virtually any decision ... the object of a claim" and would generate "significant litigation."
- Federal preemption. Provisions limiting federal environmental authority would be preempted under U.S. Const. art. VI, cl. 2. "Based upon the significant federal laws and regulatory systems in existence, it appears likely that portions of this initiative would likely be struck down as preempted."
The certificate did not declare the entire initiative unconstitutional. The state-law property-rights protections that did not conflict with constitutional police powers or federal authority would have been within Idaho's legislative power. The federal-preemption issue and the constitutional police-power issue, however, were significant.
Currency note
This opinion was issued in 2010. 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.
Background and statutory framework
Property-rights initiatives that require compensation for regulatory burdens have a long history in Western U.S. states. The high-water mark was Oregon's Measure 37 (passed 2004) and the partial rollback in Measure 49 (2007). Several states considered similar measures in the 2008-2010 period.
The constitutional question with these measures is the boundary between legitimate police-power regulation (which generally does not require compensation under traditional regulatory-takings doctrine) and a state-created compensation requirement that runs above the federal floor. States can choose to require compensation that exceeds the federal Fifth Amendment floor, but cannot waive their own constitutional police powers, and cannot use the rule to nullify federal regulatory authority.
Common questions
Q: Does this kind of compensation rule work in practice?
A: Oregon's Measure 37 experience is instructive. The compensation requirement triggered thousands of claims and effectively paralyzed local zoning. Voters then partly rolled it back via Measure 49. The AG's concern about litigation volume reflects this real-world experience.
Q: What does "police power" mean in this context?
A: Police power is the inherent state authority to regulate for health, safety, welfare, and morals. Idaho Const. art. XII, § 2 specifically reserves this power to local governments. A compensation rule that effectively prevents the exercise of police power runs into a constitutional, not just statutory, limit.
Q: How would federal preemption come into play?
A: Federal environmental statutes (Clean Air Act, Clean Water Act, Endangered Species Act, etc.) impose federal regulatory authority that the Supremacy Clause makes superior to state law. A state initiative that purports to limit those federal authorities would be preempted.
Q: Did this initiative reach the ballot?
A: This is the certificate of review, the first step. The reader should consult Idaho Secretary of State election records to confirm whether the petition advanced.
Citations and references
Constitutional and statutory provisions:
- Idaho Code § 34-1809 (certificate of review)
- Idaho Const. art. XI, § 8, art. XII, § 2 (police power)
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)
- Idaho Local Land Use Planning Act (Title 67, ch. 65)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021610g.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
February 16, 2010
The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re:
Certificate of Review
Proposed Initiative Relating to the Protection of Property Rights
Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, 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." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.
BALLOT TITLES
Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must 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 titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.
MATTERS OF SUBSTANTIVE IMPORT
The Initiative Raises Significant Policy Issues
At the outset, it should be noted that several concepts have been included within this initiative, which may be more appropriately formatted through a series of statutes. Instead of combining all of these items into a single statute, proposed section 67-6539, it would be more effective to set out the many provisions of this proposed single act as discrete statutory sections. Along those same lines, it would likely be more beneficial and clear if the initiative were re-drafted to reflect changes throughout the Local Land Use Planning Act (the Chapter into which the proposed amendment is to be inserted). The initiative purports to significantly impact a number of provisions throughout the Local Land Use Planning Act, and would thus be clearer if the existing Act were amended to reflect these changes, as opposed to tacking an additional conflicting provision on to the end of the Chapter.
The proposed initiative seeks to limit a number of the powers of entities with regard to planning and zoning decisions. Most significantly, the proposed initiative could not impair the ability of local government to enact zoning ordinances in such a way as to reduce or eliminate their police powers as outlined by the Idaho Constitution. E.g., Idaho Const. art. XII, § 2 and art. XI, § 8. Similarly, the initiative seeks to require a governmental entity to pay the landowner 120% plus the costs incurred by the landowner in the change of use. Although permissible, this provision would likely significantly increase the costs to government with regard to enacting planning and zoning decisions as virtually any decision would become the object of a claim.
Similarly, based upon the proposed addition to the Land Use Planning Act, this would likely create a series of conflicts, which would likely be resolved through litigation. If enacted, this measure would likely result in significant litigation with regard to the scope of the addition to the Code, its effect on existing land use systems, and most future land use decisions.
This initiative also attempts to limit the authority of the federal government with regard to federal environmental regulations and other similar decisions affecting uses of land. The Supremacy Clause of the United States Constitution provides that federal laws and treaties are "the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Accordingly, when Congress acts within the scope of its constitutional authority, the laws it enacts may preempt state or local action within that field. Based upon the significant federal laws and regulatory systems in existence, it appears likely that portions of this initiative would likely be struck down as preempted.
CONCLUSION
Based upon the analysis above, it appears that portions of this initiative will likely be preempted where the restrictions on government action conflict with federal law. Stylistic changes should be made to more appropriately make this initiative consistent with the existing Idaho Code. Adoption of this initiative would also increase the likelihood and quantity of litigation within this area.
CERTIFICATION
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to the Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alana Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.
LAWRENCE G. WASDEN
Attorney General
Analysis by:
BRIAN P. KANE
Deputy Attorney General