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The one part of the county's code that tells the county what it may not do to your land
The checklist is in the county's own code, and it points the other way
Most of Fremont County's Development Code tells a landowner what they may not do. Appendix E is the one part that tells the county what it may not do. It is the Idaho Attorney General's takings checklist, six questions the county must ask before a regulatory decision, and it exists because the state legislature ordered every agency and local government in Idaho to use it. A “taking” here is a legal word, not an event: it means a rule or decision that reduces a property owner's rights so far that the constitution requires the government to pay for it.
“An owner of private property that is the subject of such action may submit a written request with the clerk or the agency or entity undertaking the regulatory or administrative action… Any regulatory taking analysis prepared hereto shall comply with the process set forth in this chapter, including use of the checklist developed by the attorney general… and shall be provided to the private property owner no longer than forty-two (42) days after the date of the filing of the request.”
— Idaho Code § 67-8003(2), the Idaho Regulatory Takings Act. Added 1994; amended 1995, 2003 and 2016. Retrieved from the Idaho Legislature 1 September 2026
Read plainly: if the county makes a decision about your land, you can require it to write down, using the six questions, whether that decision crosses the constitutional line. You get the answer within 42 days. And if the county does not produce it, the statute says the decision becomes voidable, which means a court can set it aside for that failure alone.
The six questions
| Question the county must ask | The case behind it | Where it would arise on a cabin lot |
|---|---|---|
| Does the action result in a permanent or temporary physical occupation of private property? | Loretto v. Teleprompter, 1982: requiring landlords to host cable boxes was a taking | A rule that puts something of the public's on your ground |
| Does it require the owner to dedicate property or grant an easement? | Nollan, 1987 and Dolan, 1994: a permit condition demanding an easement must connect to the harm the project causes | A trail, path or public access demanded as a condition of a permit |
| Does it deprive the owner of all economically viable use? | Lucas, 1992: a rule barring all beneficial use is a taking unless nuisance law already barred it | A lot that, after the rules, cannot be built on at all |
| Does it have a significant impact on the owner's economic interest? | Courts compare the value before and after | A rule that leaves the lot buildable but much less valuable |
| Does it deny a fundamental attribute of ownership? | Dolan again, on the right to exclude others; Hodel v. Irving, 1987, on the right to pass property on | Anything that takes away the right to possess, exclude or dispose |
| Does the condition substantially advance the purpose a direct prohibition would serve? | Nollan: no nexus, no condition | A condition unrelated to the thing being permitted |
The checklist's own preface is careful, and so should this page be: an affirmative answer does not mean there has been a taking. It means there could be a constitutional issue and the action should be reviewed with legal counsel. The Attorney General's January 2023 guidelines say the same in the general principles: zoning, setbacks, building codes and sanitary standards generally do not amount to takings; it is the regulation that goes too far that may.
Where the county's code invokes it
Appendix E is not decorative. Chapter 3 of the code points at it in three places, and each is a moment a landowner might actually meet.
- Section 3.18.060: denial of a conditional use permit, or approval with conditions unacceptable to the landowner, may be subject to the regulatory taking analysis under section 67-8003.
- Section 3.19.050: the same sentence for a special use permit.
- Section 3.25.010: if a notice of appeal alleges that a decision of the Administrator or Commission is a taking of property without just compensation, the appeal goes to the County attorney, who reviews it against Appendix E and the property rights policy of the comprehensive plan.
- Section 3.25.040: where a taking is alleged, the Commission or Board must consider the County attorney's review and require a regulatory takings analysis as the state code provides.
Those are the county's conditional and special use permits, which are the routes for anything the base district does not name outright — and the code names less than most buyers assume. A landowner refused one of those, or granted one with a condition they find unacceptable, has a written analysis available on request.
The clocks, in one place
The statute and the Attorney General's guidelines read the deadlines this way: the owner's written request is filed with the clerk within 28 days of the final decision; the county provides the analysis within 42 days of the request; while it is being prepared, any other time limit on the decision is paused. The request and the analysis both become part of the official record and are public information. The owner is under no obligation to ask for one, and asking does not give up any other remedy, including the right to seek compensation.
The 1995 amendment is the reason this applies to Fremont County at all: the 1994 act covered state agencies, and the legislature extended it to local governments the following year. The 2003 amendment created the owner's right to request the analysis, and the 2016 amendment made clear that the right is discretionary and covers personal property as well as land.
What this is for, and what it is not
This is not a page about suing the county, and it should not be read as one. Most of what the county requires of a cabin build — a setback from the water, an open space share on a rural plat, an engineered roof — is exactly the kind of ordinary regulation the checklist's own guidelines say is not a taking. What the page is for is narrower and more useful.
- Know that the checklist exists and that the county is required to use it. A landowner who cites Appendix E at a hearing is citing the county's own code back to it.
- If a conditional or special use permit is refused, or granted with a condition that connects to nothing the project does, read the second and sixth questions. That nexus test is the one owners win most often.
- File the written request with the clerk within 28 days of the final decision. The clock is short and it is the owner's.
- Read the analysis when it arrives. It is a public document that states the county's reasoning in the constitution's terms, and that alone often changes the next conversation.
- Take it to counsel if the answers are affirmative. The checklist says that is what an affirmative answer is for.
For the ordinary build, none of this is needed, and the permit path runs without it. It is written down here because it is written down in the county's code, and almost nobody who builds here has read that far.
Common questions
What is the Idaho Attorney General's takings checklist?
Six questions that every state agency and local government in Idaho must use, under Idaho Code 67-8003, to evaluate whether a proposed regulatory or administrative action could amount to an unconstitutional taking of private property. Fremont County adopted it into its Development Code as Appendix E.
What does a taking mean in this context?
A legal term for a rule or decision that reduces an owner's property rights so far that the constitution requires the government to pay compensation. It is not an event; an affirmative answer on the checklist means only that the question deserves review by legal counsel.
Can I make the county explain whether its decision is a taking?
Yes. Under Idaho Code 67-8003 an owner whose property is the subject of the action may file a written request with the clerk, and the county must provide a written taking analysis, using the checklist, within 42 days of the request.
How long do I have to request a takings analysis?
The Attorney General's guidelines read the statute as requiring the written request within 28 days of the final decision on the matter. The analysis is then due within 42 days of the request, and other time limits on the decision are paused while it is prepared.
What happens if the county does not produce the analysis?
The statute says the governmental action is voidable, meaning a court may set it aside for that failure, and the owner may seek a declaratory judgment in the district court of the county where the property lies.
Are setbacks and zoning rules takings?
Generally no. The Attorney General's guidelines state that government may limit the use of property through land use planning, zoning, setback requirements and building codes without creating a compensable taking. It is regulation that goes too far, or a permit condition with no connection to the project, that may.
When does the county's code refer to the checklist?
In sections 3.18.060 and 3.19.050, where denial of a conditional or special use permit, or approval with unacceptable conditions, may be subject to the regulatory taking analysis, and in section 3.25, where an appeal alleging a taking goes to the County attorney for review against Appendix E.
Which court cases are behind the six questions?
Loretto v. Teleprompter on physical occupation, Nollan v. California Coastal Commission and Dolan v. City of Tigard on permit conditions and easements, Lucas v. South Carolina Coastal Council on loss of all economic use, and Hodel v. Irving on fundamental attributes of ownership.
Does requesting an analysis stop me from suing later?
No. The statute says an owner is not required to request an analysis and that the decision not to do so does not prevent seeking any legal or equitable remedy, including the payment of just compensation.
Why does a state law bind Fremont County?
The Regulatory Takings Act of 1994 originally covered state agencies; the legislature extended it to local governments in 1995, gave owners the right to request an analysis in 2003, and clarified the right as discretionary and covering personal property in 2016.