As a real estate lawyer, I wrestle with how to justify thecomplex laws governing private property ownership and use inKootenai County. In a republic like Idaho, public policy shouldrequire the law be written so ordinary citizens understand it.Today, ordinary citizens are confused by our land-use law, and mustbe wealthy in order to afford the professionals required to developit. I have seven recommendations for the code developers, andstrongly encourage citizen input mandate recognition andimplementation of these recommendations. My first concern is aboutthe transition. For example, the County Comprehensive Plan mandateslarger parcel sizes than are now allowed, and the old five-acreparcel is doomed. That change is only one of dozens that may resultin regulatory takings of real property with the transition to newordinances. Additionally, there will be claims parcel owners havevested rights in the existing code. Without offering a legaljudgment, the hazards and necessity for litigation to addressregulatory takings disputes can and should be avoided in thetransition.
My second concern flows from my core belief that in a citizenrepublic all citizens should be able to understand the law. Yes,some law is complex. However, a property owner in Kootenai Countyshould be able to review the local codes and understand themwithout hiring an attorney, a civil engineer, or to have to spendhours and multiple visits to the County’s Community DevelopmentDepartment to know what they can build. Many people visiting myoffice believe that the County’s motto is “you bring the money andwe will tell you what, how, and when you can build.” Further,according to the 2010 Census, about 75% of Kootenai County adults25 years and older have a high school diploma or less education.The land-use code should not be biased toward well-educatedprofessionals, but biased toward the intelligence and education ofthe average citizen of the County. Simplicity must be a keyattribute of any new land-use rules.
My third concern is that the land-use code under developmentencourages free riders. This is a term from economics, where oneparty unjustly “takes a free ride” on the fiscal or enforcementstrength of another person or entity. For example, if a neighborwants land preserved on a hillside behind their home, they shouldnot free ride on the law by requiring the County mandate hillsidelandowners not develop; they should step up and buy suchdevelopment rights themselves. It is a moral wrong to have theCounty take the hillside land’s value through rulemaking. One badresult of encouraging free riders is that a primary method ofenforcement of the current land-use codes in Kootenai County is byone neighbor ratting out another to the government. This isdisgusting, and works to erode the social ties that bind a freepeople. Today, Kootenai County is too dependent on neighbors beinginformers, and free ridership must be avoided. My fourth concern isthe trend of creating expansive land-use controls, instead ofsimple land-use rules that prevent nuisance. A pig farm should notbe situated in the center of a residential development, and a loud,industrial use should not be located next to a nursing home orhospital. Caution must be used, because every decision about whatconstitutes a nuisance that is codified into a County ordinancecircumscribes the civil liberty rights of property owners. Further,when the code determines aesthetics in favor of a neighbor’s or acentral planner’s preference, the private property owner isunnecessarily controlled, planned investments are undulyinterrupted, and growth and job creation are stifled. Since allcivil rights are anchored in property rights, simplifying the codeto only prevent nuisances should minimize this local threat to ourrepublican structure and protect our core human rights.
My fifth concern is rooted in the previous concern. Everygeneration makes new laws, but hardly any generation gets rid ofold ones, or purposefully makes them less complex. Over time, thismeans there are inertia and bias toward further restrictions onprivate property rights, and the erosion of all other civilliberties that are anchored by them. The current land-use codedevelopers in Kootenai County only have a ten to twenty-year timehorizon, and cannot consider the subsequent generations for whichwe should be zealously safeguarding our core freedoms. Instead offeeling like Kootenai County, the new codes may make us live likethose in Portland or somewhere in California. What do we plan toleave our children instead of a thicket of laws and rules? Thisquestion should not be ignored. My sixth concern is that the newland-use codes will not favor the property owner’s plans, but willbe biased toward government planners or neighbors. An investment inreal property is always expensive. Government planners andneighbors who have little or nothing at risk should not be allowedby law to tell other private property owners what they can do withtheir land, except as needed to avoid clear nuisances.
Finally, a landowner developing his property today must have themeans to hire an attorney, a surveyor, a civil engineer, anarchitect, and other expensive professionals. This is morallywrong, and an abrogation of the social compact, which relies on thesanctity of private property rights to develop as one choosesbarring nuisance. Further, complex land-use rules require wealth,thus they are biased against those of fewer means. Having to berich to improve your property is not characteristic of a vigorousdemocratic republic. It is important that Kootenai County keep inmind the nature of sovereignty in our system, and that it is amoral good when a property owner’s plans control development. Thesanctity of core civil liberties and human rights must be respectedin the new codes.
Arthur Macomber is a land-use, real estate, construction,and water law attorney practicing in Kootenai County for fiveyears. Licensed in Idaho and Washington, Macomber also teachescontracts to paralegals at North Idaho College, and contractdrafting to law students at the Gonzaga University School ofLaw.
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