“This land is your land, this land is my land….”
Updated: May 2
This Reader Comment was published in the Times News on March 11, 2018
Those words, from a Woody Guthrie song, have a nice ring. Woody, whose land is it? During my time on the City Council, one of our most important responsibilities was to maintain balance of community planning and private property rights. In the 90’s, citizens often commented about the canyon rim and the adjoining land. Comments like we should make this a park or keep it in pasture. The comments implied that it was public property and should be reserved for the best interest of the community. However, the canyon rim land was privately owned and just too expensive for the city to purchase.
Earlier this year I became aware that the Idaho Land Use Planning Act (LUPA), which establishes proper community comprehensive planning and land use policy, was limited by a 1983 Idaho Supreme Court ruling, Gumprecht vs. the City of Coeur d’Alene. This case law had never been incorporated into Idaho Code. The Supreme Court ruled that changes in land use (zoning) must follow a quasi-judicial procedure established by the 1975 Land Use Planning Act. LUPA provides the community and property owners the protection of due process for changes in their land use and property rights. It specifically stated that a city, county or group of citizens could not subject land use decisions to a citizen initiative or referendum. The court determined that such a vote would not assure the land owner the legal due process provided in LUPA. Land use decisions must follow specific steps of notice, hearings, decisions and appeals. This can include court appeals all the way to the Supreme Court. Cities and Counties have been following LUPA for 43 years and the Gumprecht decision for 35 of those years.
With that knowledge, we have been working this year to codify (place into Idaho Code) the 1983 Supreme Court decision and assure that a clear reading of the code would allow anyone to understand the process. One would not need to be an attorney to determine how case law can complicate Idaho Code. Working with county officials we introduced House Bill 568. This bill passed the Idaho House of Representatives and is now on the Senate’s legislative calendar. Without this bill, private real property could be subject to ballot initiatives without the legal process provided in the Land Use Planning Act.
Imagine that you own land with long term plans to farm, build a residential subdivision or simply build your dream home. Years later, without any due process, your property use is limited by a popular vote. Your property could be declared open space and at greatly reduced value. You may like that idea on someone else’s property but what about your private property? We have a responsibility to provide everyone with due process and that process is LUPA. If the public wants land for open space or a park, it would need buy it at fair value.
Considering the canyon rim, how did LUPA fit into the due process and the interests of community? The city did not have the financial capacity to buy land along the canyon. Through the due process of LUPA, the change in land use provided the city an opportunity to gain public access to the rim within the process of a change in zoning. The conditions included the required canyon rim set back and trail. What many citizens forget is this was private land and to gain access was technically trespassing. Today we enjoy a beautiful canyon rim trail system and public access that might otherwise be denied.
There are other situations where the City did have a long-term view. The acquisition of Dierkes Lake and more recently Auger Falls property. Both were private property with willing sellers. These parks are great long-term assets for the community acquired through the appropriate exchange of value.
If H568 is signed into law, land owners will have the assurance that their private property will be provided due process. When this land is your land, you have property rights. It does not become our land unless and until a willing buyer and seller reach an agreement. That is a basic principle of private property.
Franklin D. Roosevelt sums it up well with these words of wisdom: “The function of government must be to favor no small group at the expense of its duty to protect the rights of personal freedom and of private property of all its citizens.”