Boise vs. Ada, next Round 

Boise, ACHD square off over eminent domain

Idaho House Majority Leader Mike Moyle is a busy man these days, but it takes him only a moment to locate the inspiration for one of his proposed bills among piles of assorted papers covering his desk.

With barely a pause, he resurrects a copy of a memo that has been causing headaches for the City of Boise since it was leaked to the public in 2006 (BW, News, "Battle Over Ustick Heats Up," July 26, 2006).

The memo outlines possible strategies for forcing the Ada County Highway District to renegotiate the expansion of Ustick Road, including encouraging lawsuits against the agency. Now that memo may change restrictions on land condemned through eminent domain across Idaho.

"[The city was] using it as leverage at the expense of landowners and every property taxpayer in Boise who's paying for that road," said Moyle, a Star Republican, as he discussed the reasoning behind House Bill 525.

"I don't like the idea that you have a city coming in and driving up the cost for everyone else," he said.

As written, Moyle's bill would grandfather in land-use rights for property owners affected by eminent domain takings, so that loss of land for a public project wouldn't limit what could be done on the lot.

Currently, cities or counties can limit building on a site that no longer meets the local agency's standards although landowners can ask for special waivers.

At face value, the bill is all about protecting personal property rights, but behind it, the ongoing battle between the city and ACHD is turning contentious—again.

The widening of Ustick Road quickly turned from a road project into a pissing contest between ACHD and the city, each claiming to have the best interest of the public in mind. While the project is still planned, and the lawsuit encouragement never went forward, the ramifications are still being felt. Now, both sides are accusing the other of underhanded tactics.

City officials see the bill as a blatant attempt by ACHD to circumvent city authority, while trying to avoid paying property owners the full value of their land. ACHD views it as an end run around the city's attempt to drive up land values, making it more difficult for the agency to complete road-widening projects.

"It's a bad bill, there's no question about it," said Michael Zuzel, spokesman for Boise Mayor Dave Bieter. "It doesn't do what it says it wants to."

"We wholeheartedly support it," said Craig Quintana, ACHD communications manager. Quintana openly admitted that the battle over Ustick Road was the spark behind the bill.

Zuzel called ACHD's accusation "just not true," while Quintana said the city's arguments against the bill are "a rhetorical boogie man."

So, is this bill that has the two agencies so worked up?

The bill would mean that the agency taking the land would only have to pay for the actual portion of land being condemned, rather than the entire property as is currently required.

"Inevitably, when you expand something, you get closer to your neighboring property owners, and that can cause problems," Quintana said. "Is it fair for that property owner to be stuck with a non-conforming use? We didn't think that was fair."

The Idaho Association of Counties came out in support of the bill last week, stating simply that it's the right thing to do.

"As a whole, the attitude is that it's not right to punish property owners by taking away their zoning right since it's a government entity [taking their land]," said Ada County spokesman Rich Wright.

The City of Boise calls that wishful thinking.

"This is the kind of bill that is often called a magic-wand bill—something that's one thing, is something else just because we say it is," Zuzel said. "Any kind of laws that disregard the reality of the situation is worrisome. It's basically just declaring something is whole when it's not."

Zuzel also takes issue with the fact that the bill would add another layer of record keeping for land-use agencies, and would create two classes of properties that fail to meet standards.

"Basically, taking away a city or a county's ability to really judge what the appropriate use for a remnant parcel would be, removing this piece of property from what can happen ... is not the sort of thing where you can just pick and choose," he said.

Zuzel's biggest problem with the bill is that it essentially allows one government agency to override the policies of another. "The [comprehensive] plan would become invalid," he said. "It's a get-out-of-jail-free card on government actions that don't extend to property owners."

But Quintana said this is no usurpation of authority, but simply putting into law what has been standard practice across the state.

"It will alleviate that uncertainty for the property owners and the agency," he said.

Quintana said it was common for Boise to grant property owners waivers—that is, until recently.

"Boise used to until they considered gamesmanship with Ustick," he said.

Zuzel thinks the bill may come back to bite its supporters by actually encouraging government agencies to condemn more property since they would no longer have to pay the value of the entire property.

"The argument could be made that you're basically paving the way for more condemnations," he said.

Zuzel also argues that under the current law, property owners only run into problems when they want to expand or change the use of their property.

"Nothing happens except that if a particular lot has a house on it, and the owner expects to build a larger home, they need to know as a result of another government agency's actions, that's not going to happen," he said.

This is the basic message sent to property owners in the area of the Ustick widening project in a letter sent out by the city.

While ACHD holds this as an example of the city trying to encourage lawsuits against ACHD, Zuzel said it's the city's duty to notify property owners of the possible ramifications.

"We have the absolute obligation to let the property owner know what's going to happen," he said. "What they do from there is up to them."

But the city does face an uphill battle. Moyle's bill was passed by the House Feb. 25 by a vote of 48 to 18 and is now on its way to the Senate.

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