Striking the Right Balance: Local Land Use Ordinances and Proper Governance
NOTE: The Idaho law in this article was current as of the date of its publication in 2013.
by Art Macomber
The scope of the police power exercised by the States differs as a reflection of societal values in each jurisdiction. In 1926, the United States Supreme Court approved zoning as an acceptable local government police power. Article XII, § 2 of the Idaho Constitution expressly grant cities and counties the authority to enact police power regulations. This authority is clarified and reinforced 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”). Land use restrictions are not considered a taking under current law unless the regulation removes “all economically beneficial us[e]’ of [the] property.” But instead of permitting an unrecognizable boundary, statutes should limit zoning ordinances in a manner that preserves individual property rights. This article will provide an overview of Idaho’s laws and suggest statutory changes that should strike a more appropriate balance between the zoning authority of local governments and preserving the individual property rights of its citizens.
Constitution Limits Government Power
Idaho’s Constitution does not grant powers, but it limits powers. “A doctrine firmly settled in the law is that a state constitution is in no manner a grant of power. It operates solely as a limitation of power [upon government].” “The rule that the [S]tate constitution is a limitation and not a grant of powers has most frequently arisen in cases involving the legislative department. However, the same principle has been applied to the executive and judicial department.”
Idaho’s police power as delegated by Article XII, § 2 to 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 only generally described, but legislative enactments are specific. Thus, it is only a matter of judicial interpretation through parsing and word craft to evade or dilute the constitutional limits by either circumscribing the definition of the scope of the constitutional limit, or by finding the specific legislative enactment does not fall into the scope of the constitutional limit. This judicial outcome is more likely 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 improperly tilt the law toward enlargement of government power and away from protection of individual inalienable rights of sovereignty.
Idaho’s Local Government Police Power Applied to Land Use.
“The Legislature, as a function of the police power, has delegated authority to local governments to exercise land use planning powers through the LLUPA.” “In addition, the Idaho Constitution grants limited police power to county and city governments. The Idaho Supreme Court has interpreted Article XII to place three restrictions on local ordinances, they must:
(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 particular 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. “Certainly, zoning restrictions or regulations which limit the right to use private property so as to realize its highest utility should not be extended by implication to cases not clearly within their scope and purposes.”
The use of a reasonable relationship standard favors increasing government regulation. In the seminal land use case entitled Village of Euclid the United States Supreme Court required that the regulation have a substantial relation to public health, safety, or welfare. But, the Idaho State Supreme Court downgraded that standard to require simply a reasonable relationship. In short, because a local government merely needs to assert a reasoned justification in support of government control over a land use decision, this standard has become virtually limitless. Thus, in Idaho, if a local governing board can argue a reasonable position, the zoning ordinance or decisions related to its administration 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.
Zoning with a Reasonable Relation to the Police Power Undermines Constitutional Rights
A substantial relation requires a stronger nexus to the police power than simply a reasonable relation. The latter low standard unnecessarily encourages cities and counties to enact land use restrictions with an engineered level of specificity that unnecessarily vitiates private property rights.
In Idaho, even aesthetic judgments of property owners are suppressed or even disregarded by local government “planners.” In the Terrazas case, the Idaho State Supreme Court stated, “[t]his Court has recognized that aesthetic concerns, including the preservation of open space and the maintenance of the rural character of [a] County, are valid rationales for the County to enact zoning restrictions under its police power. Thus, even determinations regarding the aesthetics of development are not the title owner’s decision, but the local government’s. How much space is required to be “open space?” What is “open space” anyway? What is “rural character?” A local government’s administrative discretion on the definitions of open space and rural character can supplant a property owner’s right to use, because the final decision becomes the government’s instead of the true owner’s.
Idaho statutes place few limits on the local authorities’ zoning power. “Determining where particular business uses shall be allowed to expand in a community is normally an appropriate exercise of the police power. Preserving aesthetic values and the economic viability of a community’s downtown business core can be a proper zoning purpose.” This allows local government planners to undertake intricate planning of local economies without information about potential commercial uses which are disbursed among individual property owners, which is why decision-making needs to remain with the individual owner. Having to get permission for a non-harmful land use due to a planner’s exacting standards discourages innovation and market-responsive uses of real property.
Also, zoning code violation appeals cannot be judicially reviewed. The Highlands case is a shield protecting local authorities, because it limits judicial review of the exercise of that code enforcement power. Therefore, a local governing entity can not only interpret its own ordinance, but enforce it with no review, unless a declaratory judgment is sued for by the property owner. Thus, local governments are emboldened toward an expansionary exercise of their powers of administrative discretion over permissible uses of private property.
Due Process Does Not Adequately Protect Property Owners in Idaho
Due process is that process which a government is required to give an individual citizen who is the subject of regulation or other targeted governmental act; the two pillars of due process being notice and a hearing. In Idaho’s land-use context it has changed into a process where an individual property owner attempting to use their property not only has to gain the government’s approval, but also the political approval of their neighbors. The public hearing requirements trigger and encourage political dissent from neighbors. This is not to say a public hearing should not be allowed, but that criteria for approval should not allow neighborhood factions to suppress the applicant’s right to use. The tyranny of the neighborhood is a substantial curtailment of Idahoans’ private property rights, if only due to the time and financial expense of overcoming neighbors’ objections to a use. On a practical level, the majority of Idaho landowners cannot afford delays or legal fees to first interpret a zoning ordinance and then financially survive political battles with their neighbors. In this respect, current Idaho law improperly favors the wealthy and pits one person against many for elusive and unquantifiable reasons.
A zoning ordinance will not be overturned by a court in Idaho, “unless that decision: ‘(a) violated statutory or constitutional provisions; (b) exceeded the Board’s statutory authority; (c) was made upon unlawful procedure; (d) was not supported by substantial evidence in the record; or (e) was arbitrary, capricious, or an abuse of discretion.” However, “[w]here there is a basis for a reasonable difference of opinion, or if the validity of legislative classification for zoning purposes is debatable, a court may not substitute its judgment for that of the local zoning authority.” Thus, where such authority responds to aggressive neighbors who bring political pressure to suppress the civil rights of their neighbors, a right to use real property can be destroyed or substantially altered to make the use uneconomical.
In Terrazas, the Court analyzed the property owner’s challenge and determined no due process rights were violated, the ordinance was not unconstitutional, “substantial competent evidence supported the Board’s determination . . . the Board’s decision was not arbitrary and capricious[,] and [thus its decision] did not violate Applicants’ equal protection rights. The presumption of validity allowed the local government’s decision to supplant the property owner’s.
The Terrazas case evinces that private property rights are not strongly supported in Idaho today, and that almost any defense raised against a zoning ordinance will fail, whether the challenge is based on the constitution, other law, or equity. The mirage of due process is a costly but fruitless delay to the implementation of a local government planner’s vision coupled with neighbors’ political pressure to suppress a private property owner’s civil rights.
Drafting Ordinances with Inalienable Property Rights in Mind
Local entities should not have power to enact ordinances resulting 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. To the contrary, local entities should be statutorily required to enact ordinances that give private property owners their full measure of freedom by integrating constitutional protections of the use of real property into the creation, implementation, and administration of zoning and subdivision ordinances beyond simple avoidance of outright takings. The core purpose of the existence of the State is to protect such civil rights. Two simple ways to do this would be to require ordinances that 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.
A. Landowner Preferences Should Receive Governmental Deference.
Regulations protective of private property rights should 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 accomplishes 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. For an example of an over-engineered and costly legal structure, see www.zoningplus.com/regs/kootenai. If the owner’s plans trigger 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? The incentives for limiting zoning and subdivision authority include economic development, job creation, and governmental budget reductions.
B. Local Land Use Ordinance Requirements Should be Well Grounded In Science.
The second statutory change would be to increase the burden of proof that the government has to meet to justify its exercise of the police power. Instead of the preponderance of the evidence standard, the government should have to justify limiting an owner’s plans by clear and convincing scientific evidence. This would further curtail unaccountable administrative discretion by requiring a scientific justification for an exercise of police power in each case. 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. This solution may initially appear to encourage litigation by opening the door to a battle of “experts,” but this possibility only means the ability of a local government to exercise the police power should be tightly restricted so that only real and present harms are addressed when a development application is made.
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. Although a neighbor may be able to register a complaint about use of property, that complaint should not serve to trump the individual right of a property owner.
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 and vigorous economic development. 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 with a gimlet eye toward mere avoidance of impermissible regulatory takings, a higher standard of aspiration in upholding individual rights to use property will be invigorating.
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 Arthur B. Macomber is licensed to practice in Idaho, Washington, and Montana. Prior to attending the University of California Hastings College of the Law, he enjoyed 25 years in business, real estate, and construction. Mr. Macomber has taught contracts law and drafting at North Idaho College and Gonzaga University School of Law. Bristol George, PLLC is a solo practice in Coeur d’Alene focusing on real property, land use, water, and construction law.
 Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114 (1926).
 Delegation proper, see Fernandez v. Alford, 203 La. 111, 13 So.2d 483 (1943); Central Maine Power Co. v. Waterville Urban Renewal Authority, 281 A.2d 233 (Me.1971); First National Bank v. Maine Turnpike Authority, 153 Me. 131, 136 A.2d 699 (1957); Bidlingmeyer v. City of Deer Lodge, 128 Mont. 292, 274 P.2d 821 (1954); Foeller v. Housing Authority, 198 Or. 205, 256 P.2d 752 (1953); City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833 (1953); 16A Am.Jur.2d Constitutional Law §§ 375, 380 (1979).
 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538, 125 S.Ct. 2074, 2079 (2005); citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1013, 112 S.Ct. 2886, 2891 (1992); compare to the catch-all standard promulgated in Penn. Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659 (1978), or the “fundamental attribute of property ownership” standard in Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993).
 Idaho Const. Article 1 § 1.
 Petition of Idaho State Federation of Labor, 272 P.2d 707, 719, 75 Idaho 367, 379 (1954); citing 11 Am.Jur., Constitutional Law, § 18, p. 619.
 Petition, 272 P.2d at p. 720, 75 Idaho at p. 380; citing State ex rel. Fritts v. Kuhl, 51 N.J.L. 191, 17 A. 102 (1889).
 Eberle v. Nielson, 78 Idaho 572, 574, 306 P.2d 1083, 1085 (1957); citing Noble v. Bragaw, 12 Idaho 265, 85 P. 903 (1906); Gillesby v. Board of Com’rs, 17 Idaho 586, 107 P. 71 (1910); Smallwood v. Jeter, 42 Idaho 169, 244 P. 149 (1926); In re Edwards, 45 Idaho 676, 266 P. 665 (1928); Williams v. Baldridge, 48 Idaho 618, 284 P. 203 (1930); State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588 (1931).
 Id.; citing Achenbach v. Kincaid, 25 Idaho 768, 781, 140 P. 529, 533 (1914); see Diefendorf v. Gallet, 51 Idaho 619, 637, 10 P.2d 307, 314 (1932); and Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 227, 141 P. 1083, 1088 (1914). Interestingly, a citizen’s standard of proof required against a statute is the same as a prosecutor’s against a criminal.
 Cooley, Thomas M., A Treatise on the Const. Limitations, Little, Brown & Co., p. 28 (1868) (“The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority . . . and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to these fundamental laws.”)
 Dry Creek Partners, LLC, 217 P.3d at p. 1289, 148 Idaho at p. 18; see I.C. § 67-6503.
 Id.; citing Idaho Const. Article XII § 2.
 Id., 217 P.3d at p. 1292, 148 Idaho at p. 21, fn. 6; citing State v. Clark, 88 Idaho 365, 374, 399 P.2d 955, 960 (1965).
 Johnson v. Boise City, 87 Idaho 44, 390 P.2d 291, 295 (1964); citing White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778.
 Physical and regulatory takings are not discussed here. There are frequently significant questions regarding whether the imposition of a particular zoning ordinance constitutes a regulatory taking. That analysis is dependent on the application of not only Chapter 80 of Title 67 of the Idaho Code, but also interpretation of U.S. Supreme Court regulatory takings cases, see endnote 3.
 McQuillan, Municipal Corporations, § 25.72 (3d ed. Ellard 1965); see Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114 (1926).
 Collister Fire Protection Dist. v. City of Boise, 468 P.2d 290, 93 Idaho 558, 569 (1970).
 http://www.zoningplus.com/regs/kootenai/index.aspx?Nav=browse; accessed 12-31-12. Kootenai County’s draft combination zoning and subdivision ordinance presently runs hundreds of pages.
 Terrazas v. Blaine County ex rel. Bd. of Com’rs, 207 P.3d 169, 174, 147 Idaho 193, 198 (2009); citing Dawson Enter., Inc., v. Blaine County, 98 Idaho 506, 518, 567 P.2d 1257, 1269 (1977).
 State ex rel. Kempthorne v. Blaine County, 79 P.3d 707, 710, 139 Idaho 348, 351 (2003) (neither local zoning regulations nor LLUPA apply to State endowment lands managed by the State Land Board).
 Sprenger, Grubb & Assoc., Inc., v. City of Hailey, 127 Idaho 576, 584, 903 P.2d 741, 749 (1995); and see Sprenger, Grubb & Associates, Inc. v. City of Hailey, 133 Idaho 320, 986 P.2d 343 (1999) (Court invalidates City’s comp plan based on it missing I.C. § 67-6511 components, where the plan fails to articulate a reason why a particular component is unneeded); see Sprenger, 133 Idaho at p. 321-22, 986 P.2d at p. 344-45, “[i]n Love v. Bd. of Cty. Com’rs of Bingham, 105 Idaho 558, 671 P.2d 471 (1983), this Court stated ‘[t]he enactment of a comprehensive plan is a precondition to the validity of zoning ordinances.’ Id. at 559, 671 P.2d at 472; citing I.C. § 67-6511. Although not explicitly stated in Love, it necessarily follows that a valid comprehensive plan is a precondition to the validity of zoning ordinances.”
 Highlands Development Corp. v. City of Boise, 188 P.3d 900, 145 Idaho 958, 969-70 (2008) (LLUPA does not allow judicial review unless a permit is involved).
 As to a County’s ability to rezone two parcels on one application, “a declaratory judgment action is an appropriate proceeding for making such judicial determination.” Ciszek v. Kootenai County Bd. of Com’rs, 151 Idaho 123, 130, 254 P.3d 24, 31 (2011);see Burns Holdings, LLC v. Madison County Bd. of County Comm’rs, 147 Idaho 660, 664, 214 P.3d 646, 650 (2009) (rezone not entitled to a direct administrative appeal may be the subject of a declaratory judgment action); Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 962, 188 P.3d 900, 904 (2008) (downzoning decision is subject to judicial relief in an independent action). Presumably, a code violation enforcement action could be challenged by collateral suit too.
 Parsons v. Idaho State Tax Comm’n, 110 Idaho 572, 576, 716 P.2d 1344, 1348 (Ct.App.1986) (“A targeted taxpayer must receive notice and a reasonable opportunity to be heard”); Londoner v. Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 714, 52 L.Ed. 1103, 1112 (1908); see In re Jerome County Bd. of Com’rs, 281 P.3d 1076, 1089, 153 Idaho 298, 311 (2012) (“When a relevant statute requires specific notice and hearing requirements for a possible effect of a zoning law on property rights, or in some instances merely where a body gives such notice and hearing, the action is said to be quasi-judicial in nature. Castaneda v. Brighton Corp., 130 Idaho 923, 927, 950 P.2d 1262, 1266 (1998). The notice and hearing thus becomes necessary for due process, and such requirements may not be dispensed with.”)
 Idaho Code § 67-6512; Subsection 10-2-1(C)(1)(d),(i), (j), (k), Kootenai Co. Ordinance No. 394 (12-14-06) (Required public hearing process triggers political fights with neighbors).
 Noble v. Bd. of Comm’rs of Kootenai County, 148 Idaho 937, 940, 231 P.3d 1034, 1037 (2010); citing Terrazas v. Blaine County ex rel. Bd. of Com’rs, 207 P.3d 169, 173-74, 147 Idaho 193, 197-98 (2009).
 Knieriem, 107 Idaho at p. 83, 685 P.2d at p. 824.
 Terrazas, 207 P.3d at p. 181, 147 Idaho at p. 205.
 Cooley, Thomas M., A Treatise on the Const. Limitations, Little, Brown & Co., pp. 36 & 37 (1868) (“State constitutions . . . measure the powers of the rulers, but they do not measure the rights of the governed. [They are] designed for [the peoples’] protection in the enjoyment of the rights and powers which they possessed before the Constitution was made, and [are thus] but the framework of the political government, and [are] necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought . . . It presupposes . . . enough of cultivated intelligence to know how to guard it against the encroachments of tyranny.”)
 Discussion of the burden of proof in this context is found in the Court’s denial of the petition for rehearing at Cole-Collister Fire Protection Dist. v. City of Boise, 468 P.2d 290, 93 Idaho 558, 569 (1970).
 Moon v. North Idaho Farmers Ass’n, 96 P.3d 637, 642, 140 Idaho 536, 541 (2004) (Discusses differences between trespass and nuisance); Payne v. Skaar, 127 Idaho 341, 345, 900 P.2d 1352, 1356 (1995) (nuisance); I.C. 52-101, 102, & 107 (statutory nuisance).
 Parks v. City of Montgomery, 92 So.2d 683, 38 Ala.App. 681 (Ala.App. 1957) (Lower court judgment affirmed due to lack of assignments of error being filed on appeal; Ms. Parks guilty of violating Chapter 1, Section 8 of the City Code of Montgomery, Alabama: “she did wilfully refuse or fail to comply with the assignment or reassignment by the officer or agent in charge of a motor vehicle transporting passengers for hire, of a passenger to a division, section or seat on such vehicle designated by such officer or agent for the race to which such passenger belonged.” See General Acts of Alabama of 1947, page 40.).