A virtual fly-over of Dry Creek
A project north of Boise could answer a question that affects all of Idaho: whether voters should have direct control over real estate development.
A Boise woman, Stephanie Rael, is seeking a countywide voter referendum on Dry Creek Ranch, an 1,800-home project proposed by Boise Hunter Homes east of Idaho 55 and the Shadow Valley Golf Course, west of Hidden Springs and mostly north of Dry Creek Road. Ada County commissioners approved the project in February over the opposition of Rael and dozens of others.
Rael is a former employee of Peaceful Belly, a farm located east of the Dry Creek site. Like fellow opponents, Rael said she wants the farmland in that area preserved.
If her petition succeeds in putting a referendum on the ballot, it may be the first of its kind in state history. Several Idaho government and legal experts who spoke to the Idaho Statesman could not recall an instance of voters directly deciding a land-use issue.
They disagree on whether voters have such authority. Some question whether the issue can legally appear on a ballot.
“I don’t know that you can overturn a land-use decision via the initiative process,” said Seth Grigg, executive director of Idaho Association of Counties. “I’m doubtful that the courts would uphold it. … This is new territory.”
Stephen Miller, a University of Idaho law professor and a former Boise planning and zoning commissioner, said Dry Creek’s opponents face legal precedents that call into question their ability to stop the project through a referendum.
“But if they are willing to take this to the Idaho Supreme Court, they may find justices willing to reconsider very old and dated case law,” Miller said. “Even with the difficult case law, the county likely cannot keep the petition from going to a vote and clouding the project’s legitimacy.”
Either way, commissioners won’t try to stop Rael from pursuing the referendum, county spokeswoman Kate McGwire said.
THE NEW DRY CREEK
Dry Creek Ranch was one of at least seven Ada County planned communities proposed in 2006, when the Treasure Valley’s housing boom had almost reached the precipice of the Great Recession.
Planned communities are large developments that include homes, commercial space, parks, schools and other amenities. They are designed to function like small cities.
Only one of the seven — Avimor, located off Idaho 55 — has seen significant construction. Others collapsed. Dry Creek Ranch, originally planned to include as many as 4,300 homes, was one of several whose concepts were approved but which languished when the housing market crashed.
In late 2016, Boise Hunter Homes applied for an amendment to reduce the number of homes and amount of commercial space in Dry Creek Ranch.
The application revived the project. Neighbors balked. Many either worked for or were familiar with Peaceful Belly. They worried about the loss of prime farmland, wildlife habitat and a historical legacy that includes the Jeker family farm off Dry Creek Road.
Rael said Boise Hunter Homes’ plan violates priorities identified in Ada County’s comprehensive plan, including preservation of farmland, critical wildlife habitat and open space.
“To me it is just the epitome of irresponsible development,” Rael, a former Peaceful Belly employee, told the Idaho Statesman.
Boise Hunter Homes founder Jim Hunter said Dry Creek Ranch is meant to reflect the area’s agricultural legacy through open space, homes with large lots where people can keep horses, an organic garden and horse trails.
Opponents said Boise Hunter Homes should have submitted a new application, since it was changing the original plan so much. They suspected the developer was using the amendment instead to avoid additional hearings and other public scrutiny that a new application would bring.
All three commissioners voted to approve the amendment. Commissioner Jim Tibbs was the only one to explain his vote. He acknowledged that opponents raised serious concerns, but he said private property rights outweighed them.
Rael believes the commissioners had made up their minds to approve the project before holding a public hearing on it, and they heard public testimony only because the law required it. All along, she said, the county has shown a pattern of disregard for public opinion.
A month after commissioners voted, Rael formed Dry Creek Valley Coalition, an unincorporated nonprofit. Two months later, she filed an initial petition at the Ada County Clerk’s Office seeking a referendum to overturn Ordinance 864, the county law entitling and regulating Dry Creek Ranch. The petition had more than 20 signatures, all that are needed for the initial filing.
County Clerk Chris Rich refused to move the petition to the next step of the referendum process. In a letter to Rael, he said the petition didn’t conform with state law “because it was not submitted within 30 days of final publication of the ordinance.”
But the law Rich cited does not set such a deadline. Instead, it requires a petitioner to wait at least 30 days after the law in question is published.
At the Oct. 20 trial, Rich testified that Rael’s petition appeared to meet legal requirements. He said he had discussed the petition with Commissioner Dave Case a few days after Rael filed it, and Case “expressed concern about the impact of having an election for a referendum on a county ordinance, and the impact it could have on other ordinances.”
Boise lawyer Brian Ertz, who represents Rael, said he didn’t know about that conversation before the trial. He said he asked Rich if any such conversations took place because he had grown suspicious of county government. He took Rich’s testimony to mean Case “leaned on” Rich to stop the referendum effort.
Case said that’s not true. “I didn’t do any arm-twisting or any of that to get him to go my way,” he told the Statesman. “He’s an elected official. He can choose to do what he wants to.”
Judge Jonathan Medema ruled in Rael’s favor Dec. 13, and Rich accepted the petition shortly afterward.
On Friday, Boise Hunter Homes appealed Medema’s ruling to the Idaho Supreme Court. Jim Hunter said the company’s attorneys will argue that Medema failed to apply state law correctly, and that Rael should have asked a judge to stop the project right after the county approved it instead of pursuing a referendum months afterward.
“We will be playing the entire legal card until it concludes,” Hunter said.
Ertz said he’s come to expect that.
“The reason that they’re doing this is that they want to bleed out my client,” he said. “I put over 120 hours into the case on the question of whether or not a clerk has to file, and it’s, in my estimation, an abuse of the process.”
POWER OF THE PEOPLE
A product of America’s Progressive Era, Idaho’s citizen referendum provision dates to at least 1911.
Around that time, similar provisions became common across the western United States. They were a “response to graft in government,” said Miller, the law professor.
“It reminds the decision makers that the source of their power is the voters, and that the voters can take that power back,” Ertz said.
Ertz said Rael’s battle just to submit an initial petition has put a spotlight on problems in Ada County like the ones progressives were tackling 100 years ago. He described his client as a “farmhand” battling an alliance “of the government and a giant economic interest” determined to thwart the will of the people.
“The commissioners treated the public like the public was something to scrape off the bottoms of their boots — like gnats, swatting them away,” Ertz said. “This [referendum] process is a result of a corruption.”
Idahoans have tried to use the referendum process before for land-use decisions, but not successfully. In 2016, a group in Sugar City tried to overturn a law that allows increased density in some zones. That petition failed for a lack of signatures.
In a 1983 Idaho Supreme Court case, justices ruled that Coeur d’Alene could not hold a special election on a proposal to limit building heights in certain parts of town. The court said Idaho’s Local Land Use Planning Act of 1975 requires city councils and county commissioners, or their planning and zoning commissions, to exercise their authority over land use and not delegate it to voters.
“If every decision had to be subject to a popular vote, there would be no more development in the state,” said Justin Ruen, policy analyst for the Association of Idaho Cities. “The way the Local Land Use Planning Act is designed to work is to provide everyone with a reasonable amount of certainty and confidence about how their property can be used.”
After Rich accepted Rael’s petition, county prosecutor Jan Bennetts reviewed it. In a Dec. 22 letter, Deputy Prosecutor Erica White told Rael that a court likely would find the 1975 law pre-empts the referendum, and that Ordinance 864 “is not a matter upon which the people are capable of directly legislating.”
Rael saw that as yet another example of the county government trying to stop her.
Even if it fails, Miller said, the referendum might cast a cloud of illegitimacy over Dry Creek Ranch. That could discourage Boise Hunter Homes and other developers from pursuing other unpopular projects.
If the referendum succeeds, Ertz expects it to end up before the Idaho Supreme Court.
A RACE FOR SIGNATURES
Whether it can stop Dry Creek Ranch or not, the bar for putting the petition on a ballot is daunting.
Ertz said he filed the ballot measure Friday. The public will have 10 days to challenge it before county commissioners. Once commissioners approve the language, supporters would have 180 days to obtain enough signatures to put the it on the ballot. They would need 20 percent of the number of county residents who cast ballots in the 2016 election, or more than 40,000 signatures.
Can Rael accomplish that?
“I think so,” she said. “A lot of people are really passionate about this issue, and some businesses and organizations are hoping to help out. … It’s a lot, but it can be done.”
Meanwhile, work has begun on Dry Creek Ranch. Jim Hunter said his company has graded the project’s 70-acre first phase and is installing utility lines.
Hunter said he is confident the project will be built and be successful.
“I’m not worried because I understand the law, and the county understands the law,” he said.