Prop 2's Headache

Property rights measure could create legal logjam


The controversial property rights ballot initiative up for a vote in November would result in some serious court time, said one of Idaho's top attorneys.

Brian Kane, assistant attorney general and one of the legal advisers for Idaho's existing eminent domain law, told a Boise Metro Chamber of Commerce forum last week that if it passed, Proposition 2 could create a bit of a legal logjam.

"There are a number of areas where you could have some significant and substantial litigation," Kane said. "Yes, litigation will result."

Kane ought to know. At the Attorney General's Office, it's Kane who helped write the official review of the proposed initiative before it went out for signature-gathering. That certificate of review, Kane said, was intentionally bland, and non-binding. The Attorney General's office takes no positions for or against such measures when they come up for review.

"The initiative is there and it has every right to be on the ballot," Kane said.

However, if the state of Idaho ends up in court over the initiative, it's the Attorney General's Office that will have to defend the state's new law.

And judging by Kane's comments at the Chamber of Commerce meeting, he expects to wind up in a courtroom over Proposition 2.

That's in part because the measure introduces numerous definitions to Idaho Code. Idaho Association of Cities attorney Nancy Strickland, whose group opposes the measure's passage, said the law has too many vague references, such as one to selling pornography, a term that is undefined in Idaho statute.

The measure is the product of a national movement to limit the ability of states to execute planning and zoning regulations at the expense of private property owners. Although the measure is ostensibly aimed at the practice of eminent domain, its most controversial language has to do with its requirement that Idaho compensate any private property owner who perceives that a new land-use regulation negatively affects their property values.

Although Proposition 2 was pushed locally by anti-tax activist Laird Maxwell, almost the entire budget for the initiative came from out of state. Idaho's initiative, like the others, follows the example of Oregon's Measure 37, enacted in 2004. Since then, Oregon has seen 2,500 claims filed, said Dave Hunnicutt, an Oregon attorney who helped push that measure.

"You're going to have to consider the economic impacts," Hunnicutt said. "The public can figure out a way to pay for it."

Proposition 2's most visible opponent so far is the Idaho Association of Cities. Proponents of "smart growth" and other planners are also alarmed by the proposal, which they say would limit almost any community's attempts at planning for Idaho's burgeoning growth. Other opponents include Rep. Bill Deal, the chairman of the House State Affairs Committee, which drafted Idaho's eminent domain legislation. Of the candidates for Congress, Repulican Bill Sali has told BW he would support the measure, as would United Party Candidate Andy Hedden-Nicely. Democrat Larry Grant said he was opposed to the measure.