Property owners’ rights have been a big topic in the Treasure Valley as developers propose projects near people’s homes and some of those projects — like Avimor — get annexed into existing cities — like Eagle.
In the Avimor case, a group of Eagle residents challenged the Avimor annexation, claiming resulting higher property taxes and decline in the quality of services violated their property rights.
It’s a case that showcases the complexity of real property law and the difficulty many people might have understanding exactly what their rights are when it comes to their property.
The Eagle residents did not prevail. The judge ultimately ruled that owning land and feeling personally affected doesn’t qualify under the law. More people speeding on a nearby road doesn’t impact the petitioner’s ability to use their property, he said.
“The court is unwilling to conclude that a property tax is something that adversely affects the property owner’s interest in the property,” Judge Jonathan Medema wrote in his ruling. “Like any other tax, it may adversely affect that person’s pocketbook, but it does not directly impede his free use and enjoyment of his land or alienate his interest in the property.”
Private property rights have been a big theme with Boise’s zoning code rewrite, along with new proposed apartments, hotels and stores opening up in residents’ neighborhoods.
People in the Treasure Valley have expressed concern about their private property rights, saying the value of their property would go down if certain developments were built near them.
But what do property rights mean? How much can governments affect your property? And how much right do you have to do what you want with your own property?
“There is no such thing as absolute ownership with regard to property, at least not in a Constitutional Republic like ours,” said McKay Cunningham, who teaches constitutional law and women’s reproductive rights at the College of Idaho. “You can’t even play music on your property that’s above a certain decibel level in certain times of the night.”
These property rights are generally governed by three areas of regulation, said Stephen R. Miller, University of Idaho Professor of Law.
The first is common-law rules, which we inherited from England. These laws include nuisance law, which basically says that you can’t use your land in a way that would unreasonably interfere with your neighbor’s land, said Miller.
For example, your neighbor can’t raise 80 roosters and shoot off fireworks every 30 minutes.
The next is private regulation — think homeowners associations and covenants, conditions and restrictions. Some require things like certain types of mailboxes or paint colors on homes.
And the final type of regulation is public, which is most associated with zoning, Miller said. Some zones allow only one type of housing. Others are more flexible and allow mixtures of commercial and residential uses. Zoning can also affect whether you can use property as a short-term rental, for example, or run a business from home.
One broad question, Miller said, has been: what happens if the government engages in a regulation that affects a property’s value?
For example, after the city of Boise allowed Interfaith Sanctuary a conditional use permit for a homeless shelter along State Street, the Veterans Park Neighborhood Association filed a petition for judicial review , claiming among other things that the approval would lower their property values.
The court ruled against them, saying they had failed to provide evidence that showed any member’s property would reduce in value because of the approval.
One important legal concept is the takings clause, which says that private property won’t be taken for public use without just compensation.
“And the courts, from the very beginning, have been very clear that just because a regulation negatively affects your property value, that does not violate the takings clause,” Miller said.
Basically, governments have a “wide leeway” to regulate land, unless it takes away all of a property’s value. For example, even if a new zoning regulation allows a business next to single-family home that took away 90% of a home’s value, there would still be some value to the house.
Taking away all the value is close to impossible to do, Miller said.
If people aren’t happy about the a city’s zoning plan, they can elect new officials who can change the zoning laws, Miller said.
“Property rights reflect community values,” Miller said. “Because property is this sort of society-wide agreement, or rule, there’s never 100% agreement on what it should be or what the rule should be.”
Ultimately, Miller said, property rights are “fundamentally about the relationship” people have with each other and the physical world.
In a warming climate and a time of housing affordability issues, many cities are trying to change what matters to them, whether that’s HOA regulations on turf laws and xeriscaping or zoning codes that emphasize certain types of uses like apartments.
And the Treasure Valley is not an exception.
In the past, one Boise HOA has threatened a lawsuit over a turf lawn. Another HOA recently sued residents for operating in-home businesses, according to BoiseDev. And still others have had problems with using their property in an HOA, including trying to paint their house.
This year, a state legislator even tried to pass a bill that would pre-empt HOAs from banning xeriscaping. The bill, like the Avimor annexation and Interfaith Sanctuary challenges, failed. But it remains to be seen how a changing city’s values impact property rights in the future.
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