Drafting land-use code: What law governs?

The first draft of Kootenai County’s Unified Land Use Code (ULUC) is complete. Its 477 pages raise significant concerns. This column discusses the legal power exercised to create it. In subsequent columns, I will discuss its features, and offer suggestions.

States do not have rights, they have powers. Kootenai County exercises the police power to create the ULUC. Police power is used primarily to protect the health and safety of citizens, and significantly controls private land use. The legislature delegates police power over land use to local governments by statute in Chapter 65 of Title 67, the Local Land Use Planning Act. This delegated police power is plenary upon all subjects, unless limited by the State or Federal Constitutions.

The State Supreme Court said, “The right to own and enjoy private property is fundamental. It is one of the natural, inherent and inalienable rights of free men. It is not a gift of our constitutions, because it existed before them. Our constitutions embrace and proclaim it as an essential in our conception of freedom.” Since the Federal and State Constitutions limit exercise of the police power, the legal validity of land-use codes can be measured against them. The primary Federal Constitutional concern is whether a Fifth Amendment taking requiring “just compensation” occurs. Article 1 section 1 of the Idaho Constitution states, “All men are by nature free and equal and have certain inalienable rights, among which are life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.” Article XII is interpreted to contain three restrictions on local ordinances: they (1) be confined to the various limits on the governmental body; (2) not be in conflict with other general State laws; and (3) not be an unreasonable or arbitrary enactment.

Land use ordinances are presumed valid, and will be upheld if a local government can show a “reasonable relationship” to the police power. This is a low standard. A challenger must prove unconstitutionality of an ordinance beyond a reasonable doubt. This is a high standard. Since zoning is a political and not a judicial matter, a local entity has almost complete discretion in enactment and administration of such ordinances. This undermines the private property right to determine uses.

Where businesses may locate is an allowable exercise of police power. Preserving aesthetic values, a community’s economic viability, open space, and property values are lawful zoning purposes. However, protecting property values encourages a neighbor’s political veto, or a long and expensive land use approval process. Zoning code violation appeals cannot be judicially reviewed, except by a declaratory judgment lawsuit costing significant time and money. Thus, local governments can interpret and enforce ordinances almost without challenge. These factors coupled with a planner’s administrative discretion embolden local governments to expand their exercise of police power. In the end, private rights to determine uses of land are not strongly supported in Idaho. Most challenges raised against the ULUC will fail. This gloomy legal status is proven in the draft ULUC.

Mr. Macomber is an Idaho, Washington, and Montana licensed land-use, real estate, construction, and water law attorney practicing for six years.


Link to read the article on the CdA Press Website