What concerns did Idaho's AG raise about a 2010 property-rights initiative with a 120% payment rule?

Plain-English summary

The proposed initiative would have added a single new section, § 67-6539, to the Local Land Use Planning Act. Among its provisions, it sought a government payment to a landowner of 120 percent plus costs incurred in a change of use. It also sought to limit federal authority over environmental regulations and similar land-use decisions.

Attorney General Lawrence Wasden's certificate addressed these concerns:

1. 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.
2. Police powers. The initiative could not reduce or eliminate local governments' constitutionally grounded police powers to enact zoning ordinances. The certificate treats this separately from the payment provision.
3. Costs and litigation. The AG called the 120-percent-plus-costs provision permissible but predicted substantially higher government costs because virtually any planning or zoning decision could draw a claim. He also predicted significant litigation over the proposed addition's scope and effects.
4. 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. It predicted that portions conflicting with federal law would likely be preempted and recommended stylistic changes to fit the existing Idaho Code.

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

The AG considered how the proposed new section would fit within the Local Land Use Planning Act. He suggested dividing its provisions among separate sections and amending the existing Act where the proposal would affect it. He cited Idaho Constitution art. XII, § 2 and art. XI, § 8 for the limits on impairing local police powers, and the federal Supremacy Clause for the preemption concern.

Common questions

Q: Did the AG say the 120% payment provision was unlawful?
A: No. He called it "permissible" but said it would likely significantly increase government costs because virtually any planning or zoning decision could become the subject of a claim.

Q: What limit did the AG identify on zoning changes?
A: He said the initiative could not impair local governments' ability to enact zoning ordinances so as to reduce or eliminate their police powers under Idaho Constitution art. XII, § 2 and art. XI, § 8. He did not apply that warning to the 120% payment provision, which he called permissible.

Q: How would federal preemption come into play?
A: The initiative tried to limit federal authority over environmental regulations and similar land-use decisions. The AG said portions that conflicted with federal law would likely be preempted under the Supremacy Clause.

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)
• Local Land Use Planning Act

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