Ballot Issues
I-154: Good Law or Veiled Attempt To Hamstring Land Planning Efforts?
By Greg Lemon, 6-17-06
Petition pushers across Montana have been busy gathering signatures in an effort to get an initiative on the November ballot, which could drastically alter the way growth and development is managed in the state.
Initiative 154 is often sold as an eminent domain law, but that’s not the whole story, warns Craig Kenworthy, private lands stewardship director for the Greater Yellowstone Coalition, a land-use group focused on protecting the greater Yellowstone ecosystem.
I-154 essentially has two parts: the first tightens Montana’s eminent domain law and would limit a government’s ability to condemn private land and transfer the ownership to another private entity. The second part is referred to as the “Regulatory Takings” portion and would force state and local governments to pay private landowners if regulations are passed that would decrease their property value. If the government doesn’t compensate the landowner, then the regulation wouldn’t apply.
This initiative is similar to Measure 37, which passed in Oregon in 2004 effectively repealing statewide planning that had been in place for about 30 years.
I-154 is sponsored by Protect Our Homes Montana, a conservative activist group led by Trevis Butcher from Winifred, and supported by the national Libertarian group, Americans for Limited Government.
This year ballot measures similar to I-154 and Measure 37 are being pushed in 12 states, (Click here for a PDF map of the movement) including Idaho, Nevada, Washington, Colorado, California, Arizona and Alaska, according to the American Planning Association’s Web site. In many of these states the regulatory takings legislation is coupled with the eminent domain reform.
“It’s a national effort to pass takings laws by sneaking them into eminent domain bills,” Kenworthy said.
Eminent domain hit the national scene last year with the Supreme Court decision in which the high court gave the town of New London, Conn. the right to condemn a piece of private property for the means of conveying it to another private entity in the name of economic development. The decision was obviously controversial, and private land rights organizations have since pushed states to reform their own eminent domain laws.
The discussion over eminent domain is good and necessary for the state to have, Kenworthy said. It’s just sneaky to try and pair it up with takings legislation. They’re two separate issues, he said.
But that’s not so, said Heather Wilhelm, spokeswomen for Americans for Limited Government. Initiatives, like I-154, deal with protecting private property.
“It’s really a comprehensive initiative that will protect private property in Montana,” Wilhelm said.
People around the country are outraged at the Supreme Court decision and these initiatives address their frustration, she said. Plus the initiatives will keep local governments honest.
“The only thing that this does is that it prevents local bureaucrats from steam rolling right over everybody,” Wilhelm said. “People want to blow this up into a controversial thing, but it’s really not.”
Compensating people for degrading the value of their land is just common sense, she said.
“That’s the way things work in the real world,” she said.
But Montanans take exception when out-of-state activists try and sneak unfair legislation pass them, said Tim Davis, director of the Montana Smart Growth Coalition.
“It’s basically a small group trying to impose their values on the state of Montana,” Davis said.
In Montana, land use planning is done at the local level. Communities still come together and decided how to balance development impacts and neighborhood values, he said. These discussions are often difficult and involve many interests. In some of the state’s highest growth areas, like Missoula and Ravalli Counties, broad-based zoning isn’t even in place.
If I-154 passed, then developers would have more rights than their neighbors, Davis said. It’s a top-down legislative move to regulate something that should and is being accomplished at the local level.
“(With I-154) the number one value is basically you’re a developer and you can do what you want and if someone tells you you can’t do what you want then we have to pay,” he said.
For example, if a landowner wanted to develop a gravel pit next to a subdivision, the county would either have to let him do it or pay him for his loss in property value, Davis said. Nothing is said in the initiative about the decrease in property values for the neighbors of the gravel pit.
“This takes away the ability for someone to have a voice to moderate the impact that new development will have on their property rights and values,” he said.
But Joe Balyeat, R–Bozeman, doesn’t agree with this scenario.
Balyeat is the state chairman for Protect Our Homes Montana. Government already has too much control over growth and land use, he said.
“I would argue that, at this point in time, if anything, we have too much regulatory interference with our property rights, rather than too little,” Balyeat said
Governments shouldn’t dictate land-use planning. That’s the job of the free market.
“Even a dumb free market is far more intelligent then a smart bureaucracy,” he said.
The arguments against I-154 are exaggerations.
“That’s a common response to claim the sky is falling in,” Balyeat said.
The initiative will not be retroactive, he said. That means that all zoning districts and planning regulations now in place will still be valid and exempt from this law.
But any future decisions about the balance of community interests and landowner rights would rest with the courts and the developing landowners.
“The person who owns the property is a far better judge of the balance (than the government),” Balyeat said.
Also numerous exemptions exist in the language of I-154, which would allow local governments to land-use plan based on public health and safety, as well as community interests, he said.
But those exemptions, like much of the initiative, are unclear, Davis said.
The language of the initiative summary reads: “This initiative requires governments to waive any new regulation that reduces property values, unless they compensate owners for the reduced value. This requirement does not apply to public health and safety.”
Balyeat agrees that gray areas do exist in the language of the initiative, but that’s what the court system is for.
“The reason we have a court system in America and in Montana is to interpret law and work out differences of opinion between competing interests,” he said.
This is another point Davis and Balyeat agree on.
“If this passes local governments and the state will be in court for a long time.”
The proponents of I-154 have until June 23 to gather 23,308 signatures from at least 5 percent of the registered voters in at least 34 of Montana's 100 House districts.
Protect our Homes Montana will have a press conference on Monday to announce how many signatures they’ve gathered thus far, Balyeat said.
“It’s looking very good that the voters in Montana will have a chance to vote on this in June,” he said.
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Comments
I have no problem with a straight up debate on this, but they didn't tell people what they were signing, they just slid it in with the eminent domain issue.
CI-97, known as the SOS initiative (Stop Overspending), was tried in Colorado (where it was known as TABOR). It had disastrous results and was repealed by the voters a year or two ago.
As the saying goes, if it ain’t broke, don’t fix it. These three initiatives deal with problems that don’t exist or can be remedied by local government, or better yet, at the ballot box when legislators are up for election. They certainly shouldn’t be a part of our Montana Constitution.
I believe that three initiatives -- I-154, CI-97 and CI-98 -- are all being challenged in court but I don't know the status. Maybe someone else out there in the ethernet knows more than I. If I hear more, I'll drop you a line.
Pete