1. PROPERTY RIGHTS
1.1. The rights of property ownership in the United States are established in the Declaration of Independence, which establishes “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
1.2. The Declaration of Independence also establishes, “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” The United States Constitution, “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity,” setting the form of federal government to be established.
1.3. Amendment 5 of the Bill of Rights ends with, “… nor shall private property be taken for public use, without just compensation.”
1.4. Article 1, Section 1 of the Idaho State Constitution defines the inalienable rights of man, stating, “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.”
1.5. Article 1, Section 14 of the Idaho Constitution establishes that “Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.”
1.6. Government actions which violate Article 1, Section 14, are classed as regulatory takings, to include local land use ordinances or decisions which unjustly deprive a property owner the use of property.
1.7. Title 67, Chapter 65, the “Local Land Use Planning Act,” establishes regulations by which a local jurisdiction may establish land use regulation, including provisions for public hearings on certain proposals, wherein adjoining property owners are sent notice of the proposal and everyone who might be affected may be heard, so that decisions made consider the rights not only of the applicant, but of other property owners as well.
1.8. Title 67, Chapter 80, Idaho Code, was drafted, “to establish an orderly, consistent review process that better enables state agencies and local governments to evaluate whether proposed regulatory or administrative actions may result in a taking of private property without due process of law.”
1.9. IC 67-8003 assures all owners of real property in the State of Idaho who may be victim of a regulatory taking the right to avail themselves of this review process by requesting a regulatory takings analysis within 28 days of the final decision concerning the matter at issue.
1.10. In December, 2003, the Idaho Attorney General, as directed by IC 67-8003, published the “Idaho Regulatory Acts Guidelines,” to more finely define property rights and establish an administrative procedure for review. Those guidelines also establish a checklist so as to analyze whether a governmental land use action constitutes a regulatory taking. While a question may be answered affirmatively, it does not mean there has been a taking, but rather that there could be a constitutional issue and that the proposed action should be carefully reviewed. The questions on that checklist are:
1.10.1. Does the regulation or action result in either a permanent or temporary occupation of private property?
1.10.2. Does the regulation or action require a property owner to either dedicate a portion of property or to grant an easement?
1.10.3. Does the regulation deprive the owner of all economically viable uses of the property?
1.10.4. Does the regulation have a significant impact on the landowner’s economic interest?
1.10.5. Does the regulation deny a fundamental attribute of ownership?
1.10.6. A. Does the regulation serve the same purpose that would be served by directly prohibiting the use or action? B. Does the condition imposed substantially advance that purpose?
1.11. Title 67, Chapter 52, Idaho Code, establishes the right of judicial review by those aggrieved by a final agency action, to include the office of the zoning administrator, the planning and zoning commission and Boundary County Commissioners, a process by which to assure that actions of that agency are in compliance with Idaho Code.