As a real estate lawyer, I wrestle with how to justify the complex laws governing private property ownership and use in Kootenai County. In a republic like Idaho, public policy should require the law be written so ordinary citizens understand it. Today, ordinary citizens are confused by our land-use law, and must be wealthy in order to afford the professionals required to develop it. I have seven recommendations for the code developers, and strongly encourage citizen input mandate recognition and implementation of these recommendations. My first concern is about the transition. For example, the County Comprehensive Plan mandates larger parcel sizes than are now allowed, and the old five-acre parcel is doomed. That change is only one of dozens that may result in regulatory takings of real property with the transition to new ordinances. Additionally, there will be claims parcel owners have vested rights in the existing code. Without offering a legal judgment, the hazards and necessity for litigation to address regulatory takings disputes can and should be avoided in the transition.

My second concern flows from my core belief that in a citizen republic all citizens should be able to understand the law. Yes, some law is complex. However, a property owner in Kootenai County should be able to review the local codes and understand them without hiring an attorney, a civil engineer, or to have to spend hours and multiple visits to the County's Community Development Department to know what they can build. Many people visiting my office believe that the County's motto is "you bring the money and we will tell you what, how, and when you can build." Further, according to the 2010 Census, about 75% of Kootenai County adults 25 years and older have a high school diploma or less education. The land-use code should not be biased toward well-educated professionals, but biased toward the intelligence and education of the average citizen of the County. Simplicity must be a key attribute of any new land-use rules.

My third concern is that the land-use code under development encourages free riders. This is a term from economics, where one party unjustly "takes a free ride" on the fiscal or enforcement strength of another person or entity. For example, if a neighbor wants land preserved on a hillside behind their home, they should not free ride on the law by requiring the County mandate hillside landowners not develop; they should step up and buy such development rights themselves. It is a moral wrong to have the County take the hillside land's value through rulemaking. One bad result of encouraging free riders is that a primary method of enforcement of the current land-use codes in Kootenai County is by one neighbor ratting out another to the government. This is disgusting, and works to erode the social ties that bind a free people. Today, Kootenai County is too dependent on neighbors being informers, and free ridership must be avoided. My fourth concern is the trend of creating expansive land-use controls, instead of simple land-use rules that prevent nuisance. A pig farm should not be situated in the center of a residential development, and a loud, industrial use should not be located next to a nursing home or hospital. Caution must be used, because every decision about what constitutes a nuisance that is codified into a County ordinance circumscribes the civil liberty rights of property owners. Further, when the code determines aesthetics in favor of a neighbor's or a central planner's preference, the private property owner is unnecessarily controlled, planned investments are unduly interrupted, and growth and job creation are stifled. Since all civil rights are anchored in property rights, simplifying the code to only prevent nuisances should minimize this local threat to our republican structure and protect our core human rights.

My fifth concern is rooted in the previous concern. Every generation makes new laws, but hardly any generation gets rid of old ones, or purposefully makes them less complex. Over time, this means there are inertia and bias toward further restrictions on private property rights, and the erosion of all other civil liberties that are anchored by them. The current land-use code developers in Kootenai County only have a ten to twenty-year time horizon, and cannot consider the subsequent generations for which we should be zealously safeguarding our core freedoms. Instead of feeling like Kootenai County, the new codes may make us live like those in Portland or somewhere in California. What do we plan to leave our children instead of a thicket of laws and rules? This question should not be ignored. My sixth concern is that the new land-use codes will not favor the property owner's plans, but will be biased toward government planners or neighbors. An investment in real property is always expensive. Government planners and neighbors who have little or nothing at risk should not be allowed by law to tell other private property owners what they can do with their land, except as needed to avoid clear nuisances.

Finally, a landowner developing his property today must have the means to hire an attorney, a surveyor, a civil engineer, an architect, and other expensive professionals. This is morally wrong, and an abrogation of the social compact, which relies on the sanctity of private property rights to develop as one chooses barring nuisance. Further, complex land-use rules require wealth, thus they are biased against those of fewer means. Having to be rich to improve your property is not characteristic of a vigorous democratic republic. It is important that Kootenai County keep in mind the nature of sovereignty in our system, and that it is a moral good when a property owner's plans control development. The sanctity of core civil liberties and human rights must be respected in the new codes.

Arthur Macomber is a land-use, real estate, construction, and water law attorney practicing in Kootenai County for five years. Licensed in Idaho and Washington, Macomber also teaches contracts to paralegals at North Idaho College, and contract drafting to law students at the Gonzaga University School of Law.