Sponsored by the ISB Government & Public Sector Lawyers Section (Reciprocal Admission Credit approved)

A Presentation to the Idaho State Bar 2013 Annual Meeting, Coeur d’Alene, Idaho

July 19, 2013

By Art Macomber, Attorney, Macomber Law, PLLC, Susan Weeks, James, Vernon & Weeks, P.A., and Pat Braden, Kootenai County Prosecutor’s Office, Civil Division

Agenda

Macomber: Context of the exercise of police power by cities and counties under Idaho Code §67-6501, et. seq. (LLUPA) – plus, LLUPA keys.
Weeks: The boundary between takings jurisprudence and local ordinances within the legal structure.
Braden: Discussion of bills introduced and passed in the 2013 Idaho Legislative Session affecting LLUPA.
Panel Q & A.

Context of LLUPA for Cities and Counties

Idaho Constitution: “Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.” Ciszek v. Kootenai County Bd. of Com’rs, 254 P.3d 24, 32, 151 Idaho 123, 131 (2011); citing Idaho Const. Art. XII, § 2.

•“The Legislature has stated an intent that decision-making under LLUPA should be founded upon sound reason and practical application of recognized principles of law … with an emphasis on fundamental fairness and the essentials of reasoned  ecision-making.” Ciszek, 254 P.3d at 32, 151 Idaho at 131; citing I.C. § 67-6535(3).

•In re Jerome County Bd. of Com’rs, 281 P.3d 1076, 153 Idaho 298 (2012), discussing CAFO:

“We apply the rational basis test’s deferential standard of review when dealing with legislation regarding economic interests. Bradbury v. Idaho Judicial Council, 136 Idaho 63, 69, 28 P.3d 1006, 1012 (2001). ‘[S]ubstantive due process requires that ‘a statute bear a reasonable relationship to a permissible legislative objective.’ Id.; quoting Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 90, 982 P.2d 917, 925 (1999). Where it is at least debatable that governmental conduct is rationally related to a legitimate governmental interest, no violation of substantive due process will be found. State v. Bennett, 142 Idaho 166, 169, 125 P.3d 522, 525 (2005). In this context, legislative acts are presumed valid and only overcome by clearly showing arbitrariness and irrationality. Id. at 171, 125 P.3d at 527.”

Context of LLUPA Regulation

Idaho Const. Art. 1 § 1: Inalienable rights of man. 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. •Note: No inalienable right to USE property!

Federal Constitution & State Statute: Takings

•“The Fifth Amendment to the United States Constitution, made applicable to the states via the Fourteenth Amendment, provides that ‘private property [shall not] be taken for public use, without just compensation.’” City of Coeur D’Alene v.m Simpson, 136 P.3d 310, 313, 142 Idaho 839, 842 (2006).

•“Most regulatory takings claims are of the non-categorical type, which have been analyzed under rules set out by the United States Supreme Court in Penn Central. A non-categorical analysis is an ‘ad hoc, factual inquir[y]’ that considers (1) the economic impact of the regulation; (2) the extent to which the regulation interferes with reasonable investment-backed expectations; and (3) the character of the governmental action.” Simpson, 136 P.3d at 318, 142 Idaho at 847; citing Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659 (1978).

•“With regard to a non-categorical taking, the owner must show ‘the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.’” Simpson, 136 P.3d at 325, 142 Idaho at 853; citing Lingle v. Chevron USA, 544 U.S. 528, 540, 125 S.Ct. 2074, 2082 (2005).

Common law statute/history

•Edmund Burke v. Jean-Jacques Rousseau: What is the social contract?

•“Society is indeed a contract. . . . [A] partnership not only between those
who are living, but between those who are living, those who are dead, and
those who are to be born.“ Edmund Burke, Reflections on the Revolution
in France
, p. 110 (Arlington House, 1955) (1790).

•I.C. § 73-116: “Common law in force. The common law of England, so far
as it is not repugnant to, or inconsistent with, the constitution or laws of
the United States, in all cases not provided for in these compiled laws, is
the rule of decision in all courts of this state.”

•Fee simple, reversions, and remainders are only three examples of the
common law “in force” since the 1200’s. Theodore Plucknett, A Concise
History of the Common Law
, p. 558, et seq. (Little, Brown & Co., 5th Ed.
1956) (1929).

 

Context of Exercise of Police Power

Existing LLUPA-based or other laws
– Reasoned land use planning requires transition planning, not an
instant cutover to a new regime – there is no blank slate!
– Fair and lawful ordinances account for owners’ “investment
backed expectations,” see Penn Central takings case
– State and Federal agency regulations (I.C. § 67-6522, as amend.)

 

Social and Economic milieu
– Citizens’ expectations about property rights: political factors
– Local governments’ traditional design as reactive entities to
prevent harm, i.e., health, safety, nuisance (need targeted rules)
– Local governments’ inability to gather and use timely economic
information – Friedrich Hayek, The Use of Knowledge in Society,
The American Economic Review, Vol. 35, Iss. 4 (1945).

Find the Economic Information!

economic-information1

 

Idaho Code § 67-6511(1)*

ZONING ORDINANCE.

Each governing board shall, by ordinance adopted,
amended, or repealed in accordance with the notice
and hearing procedures provided under section 67-
6509, Idaho Code, establish within its jurisdiction one
(1) or more zones or zoning districts where
appropriate.
The zoning districts [not necessarily the
zones] shall be in accordance with the policies set forth
in the adopted comprehensive plan.

* 2013 Legisl. Sess. Senate Bill No. 1138, as amended, eff. Jul. 1, 2013.

Idaho Code § 67-6511(1)(a)*

Within a zoning district, the governing board
shall where appropriate, establish
standards to regulate and restrict the
height, number of stories, size,
construction, reconstruction, alteration,
repair or use of buildings and structures;
percentage of lot occupancy, size of
courts, yards, and open spaces; density of
population; and the location and use of
buildings and structures.

* 2013 Legisl. Sess. Senate Bill No. 1138, as amended, eff. Jul. 1, 2013.

Idaho Code § 67-6513: Sentence 1

SUBDIVISION ORDINANCE. Each governing
board shall provide, by ordinance
adopted, amended, or repealed in
accordance with the notice and hearing
procedures provided under section 67-
6509, Idaho Code, for standards and for
the processing of applications for
subdivision permits
under sections 50-
1301 through 50-1329, Idaho Code.

Federal Constitution and State Statute: Takings

•“The Fifth Amendment to the United States Constitution, made applicable to the
states via the Fourteenth Amendment, provides that ‘private property [shall not]
be taken for public use, without just compensation.’” City of Coeur D’Alene v.
Simpson
, 136 P.3d 310, 313, 142 Idaho 839, 842 (2006).

•“Most regulatory takings claims are of the non-categorical type, which have been
analyzed under rules set out by the United States Supreme Court in Penn Central.
A non-categorical analysis is an ‘ad hoc, factual inquir[y]’ that considers (1) the
economic impact of the regulation; (2) the extent to which the regulation
interferes with reasonable investment-backed expectations; and (3) the character
of the governmental action.” Simpson, 136 P.3d at 318, 142 Idaho at 847; citing
Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659
(1978).

•“With regard to a non-categorical taking, the owner must show ‘the magnitude of
a regulation’s economic impact and the degree to which it interferes with
legitimate property interests.’” Simpson, 136 P.3d at 325, 142 Idaho at 853; citing
Lingle v. Chevron USA, 544 U.S. 528, 540, 125 S.Ct. 2074, 2082 (2005).

2013 Legislative Changes

I.C. § 50-1310 – Amended by HO138 re: plat requirements

I.C. § 67-6511 – Amended by SB1138aa re: zoning ordinances

I.C. § 67-6522 – Amended by SB1138aa re: local ordinances
cannot abrogate statutory authority of health district, State,
or Federal agencies

I.C. § 67-6535 – Amended by SB1138aa re: approval standards
and criteria shall be set forth in express terms

I.C. § 73-113 – Amended by SB1189 re: rules for statutory
construction: “plain, usual and ordinary meaning,” etc.