Reinvigorate Private Property Rights in Idaho Now!

BIO: Mr. Macomber is a land-use and real estate attorney in Coeur d’Alene running against Luke Malek (R-Coeur d’Alene) in the May 17 Republican primary for the House District 4A position. To contribute, see

Introduction: The scope of the police power exercised by each State differs as a reflection of its local societal values. The U.S. Supreme Court approved zoning as an exercise of such power over land use. In Idaho, land-use regulation occurs primarily through the legislature’s delegation of police power to local cities and counties by Idaho Code § 67-6501, et seq., the Local Land Use Planning Act (“LLUPA”). Statutes should require local ordinances to uphold Idaho’s constitutional mandate to protect its citizens’ inalienable rights.

This article suggests statutory changes to ensure local governments do not further erode private property rights by overzealously engineering land use ordinances that leave property owners with no rights to use beyond what local government discretion allows. If I win the primary election on May 17 for position 4A in the Idaho House of Representatives, I will attempt to loosen restrictions on the use of real property in Idaho, so we can fire-up Idaho’s economic engines once again.

Police Power in Idaho: Article 1 § 1 of the Idaho Constitution states, “All men are by nature free and equal and have certain inalienable rights, among which are life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.” Please note that the Idaho Constitution does not consider the use of property to be among those inalienable rights! For example, reviewing a statute in light of that limitation on legislative acts, the Idaho State Supreme Court upheld Sunday closing laws as a lawful exercise of the State’s police power.

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The administrative State has now crept in, and Idahoans are being told what trees to plant, what building materials to use, and other things that have little to do with traditional exercises of police power to protect us against health and safety problems, or threats of nuisance. Reform is needed.

Constitution Limits Government Power: The relation of the Idaho Constitution to the powers exercised by the three branches of government, and thus counties and municipalities through delegated power is that the Constitution does not grant powers, but it limits powers. “A doctrine firmly settled in the law is that a [S]tate constitution is in no manner a grant of power. It operates solely as a limitation of power [upon government].”

Therefore, Idaho’s police power as delegated by statutes to its counties and municipalities is plenary upon all subjects, unless a limitation appears in the State Constitution. The danger to liberty is that Idaho’s Constitutional limitations are generally described, but legislative enactments are specific. Thus, it only takes judicial interpretation using parsing and word craft to evade or dilute the constitutional limits by either (1) limiting the definition of the scope of the constitutional language, or (2) by finding the specific legislative enactment does not fall into the scope of the constitutional language. This judicial result is likely in Idaho, because a passive Court is mindful to respect the acts of the co-equal Legislature.

Further, “[t]he burden of showing unconstitutionality of a statute is upon the party who asserts it, and invalidity must be clearly shown.” A Constitutional limit on a statute “must expressly or impliedly be made to appear beyond a reasonable doubt.” Thus, citizens’ rights stated in general terms in the Constitution are at risk of being lost, because the State Supreme Court’s interpretive method couples the presumption of ordinance validity with the challenger’s high burden of proof to tilt the law toward enlargement of government power and away from protection of individual inalienable rights of sovereignty. That structure came from the Progressive Era, and has be reversed.

Idaho Police Power Applied to Land Use. “The right to own and enjoy private property is fundamental. It is one of the natural, inherent and inalienable rights of free men. It is not a gift of our constitutions, because it existed before them. Our constitutions embrace and proclaim it as an essential in our conception of freedom.” “This right of property, though of such high order, is nevertheless subject to reasonable limitation and regulation by the [S]tate in the interests of the common welfare. Indeed, a statute imposing any limitation upon the right must be supported by such purpose.” In Idaho, “it has long been the rule of [law] that legislative acts must bear a reasonable relationship to the purpose for which the police power may be exercised.”

Land use ordinances must assure protection of private property rights, among other purposes. But, the Idaho State Supreme Court’s “review of decisions of zoning authorities is limited. Zoning is essentially a political, rather than a judicial matter, over which the legislative authorities have, generally speaking, complete discretion.” Even though local authorities have “complete discretion,” this only means that within its bounds legislative authority may be exercised to its fullest extent. And, such ordinances are “presumed valid until the contrary is shown.”

“The Legislature, as a function of the police power, has delegated authority to local governments to exercise land use planning powers by the LLUPA.” “In addition, the Idaho Constitution grants limited police power to county and city governments. The “[Idaho Supreme] Court has interpreted Article XII as containing three restrictions on local ordinances: that they (1) ‘be confined to the limits of the governmental body enacting the [ordinance]’; (2) ‘not be in conflict with other general laws of the state’; and (3) ‘not be an unreasonable or arbitrary enactment.'”

As to harms to private property owners, the Idaho State Supreme Court stated, “[i]f the enactment authorizing the exercise of the [police power] authority bears a reasonable relationship to the public health, safety, morals or general welfare, such enactment would be valid within the inherent powers of the legislative body. The definition of a “reasonable relationship” is left to the court. Thus, in Idaho, if a local governing board can argue a reasonable position, the zoning ordinance will be upheld, and a property owner’s right to choose how to use their land can be entirely supplanted by government discretion, as if it was the true owner. This favoritism toward government must end.

Drafting Statutes with Inalienable Property Rights in Mind: The Idaho Legislature can restrict the power of local entities to enact ordinances that result in the limitless and costly expansion of government power through the use of mathematically exact engineering standards for every conceivable use with unbounded administrative discretion to apply such standards. Local entities should be statutorily required to enact ordinances that give private property owners their full measure of freedom. The core purpose of the existence of the State is to protect such civil rights. Idaho should by statute require local ordinances to presume the validity of the owner’s plans instead of the government’s modification of it, and raise the government’s required burden of proof to a clear and convincing standard using scientific evidence to justify a land use regulation.

Further, many cities and counties cannot comply with the costly requirements of LLUPA, which requires a comprehensive plan, planning commission, and a zoning and subdivision ordinance that end up being costly and an administrative entanglement to property owners. Dozens of Idaho counties cannot afford these over-engineered rules, and should be allowed by statute to take a rifle shot approach to health, safety, and nuisance issues, instead of being hogtied into unnecessary and overly-restricted property use requirements.

If the cost of compliance isn’t bad enough, the statutes themselves are contradictory. One statute states, “[e]very city and county shall exercise the powers conferred by this chapter.” The very next section in the chapter states, “[a] city council or board of county commissioners, hereafter referred to as a governing board, may exercise all of the powers required and authorized by this chapter in accordance with this chapter.” So, which is it, “shall” or “may?” The statutes need scrubbing.

Regulations protective of private property rights should rebuttably presume the private property owner’s plans are valid, unless those plans clearly trigger a police power concern directly affecting health or safety, or creating a nuisance pursuant to common-law standards. Local planning and code enforcement costs would be lower, because land use regulations would not be holistic, but only targeted to prevention of a specific harm when triggered by an owner’s proposed use.

This would accomplish several worthy goals. Instead of the law encouraging an ever-increasing deference to over-engineered and costly structures of government power, the government would need to justify its curtailment of a property use in each individual circumstance. If the owner’s plans triggered no imminent need to invoke police power concerns for the protection of health, safety, or the prevention of nuisance, the owner could move forward and use his or her land according to that owner’s determination of beneficial use. Idahoans need to stop arguing and suing each other over who determines land uses, the title holder or the local government planning czar. Further, limiting government power encourages economic growth and vigor. Idaho could become a magnet for the private investment we need to curtail budgetary dependence on federal funds. Finally, our government budgets would not be strained by a massive thicket of local land use laws and enforcement mechanisms. Limited government is economically beneficial to both citizens and their government.

Another statutory change would be to raise the burden of proof that the government has to meet to justify its exercise of the police power. Instead of the low “preponderance of the evidence” standard, the government should have to justify limiting an owner’s plans by “clear and convincing scientific evidence” – at the government’s cost. This would further curtail unaccountable administrative discretion by requiring a scientific justification for an exercise of police power in each case. Put up or shut up. Some will argue this is too burdensome on the government, but protection of individual rights requires the government be so burdened. Judging by client comments to this author, Idaho property owners are tired of sitting in the back of the bus.

Finally, it would be proper for the law to tell neighbors to mind their own business. Unless there is a clear nuisance, or a threat to their health and safety, a neighbor should have no political power to control the use of their neighbor’s property. Such power is repugnant to principles of individual freedom, and Idaho should actively and aggressively reject it by enacting appropriate statutory changes.

Conclusion: Idaho’s police power over land use as exercised by local entities pursuant to LLUPA is a destructive power that has grown unwieldy and expensive, and has served to significantly diminish private property rights in the State.

After statutory enactment of the minor changes suggested here, land use ordinances can properly reflect the law’s role as a safeguard of inalienable private property rights in Idaho. Instead of drafting ordinances toward mere avoidance of impermissible regulatory takings, a higher standard toward upholding individual rights to use property will be invigorating.

Due to space limitations, the citations have been omitted. For a copy of the article with the citations, please contact the author directly at

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