Note: This is part of a series.
The defining environmental controversy of the early 21st century in the Northwest states may well turn out to be the debate over property rights.
What should property owners be allowed to do on their land? When is regulation appropriate? And how much is too much? Should property owners be compensated when regulations affect them? And what about compensation for neighbors and community when regulations fail to protect them? Indeed, should there be any restriction at all on the rights of property owners?
So far almost the only thing that partisans agree on is that Oregon started it. Oregon voters passed Measure 37 in 2004, which is likely a TKO for the state’s growth management laws. Later this year, Washington voters will face a similar ballot measure, Initiative 933 (pro; con). In Montana, supporters are gathering signatures to put another copycat initiative, 154, before the voters. And in Alaska, the state legislature just passed restrictions on eminent domain, a separate issue of property rights that is often confused with the policies being debated in Washington, Oregon, and Montana.
If passed, the consequences of 933 and 154 are likely to be as far-reaching and profound as 37 is in Oregon. They will affect land use, urban growth, and property values. That’s the obvious stuff. But land use laws also have powerful consequences for traffic congestion, energy consumption, affordable housing, water quality, wildlife, and much more.
In the coming weeks and months, I’ll be taking a hard look at the debate over property rights and property regulation, especially I-933 in Washington. I’ll also share some lessons from Oregon, where property owners are just now coming to grips with life under Measure 37.
For today, however, I’ll just mention one technical—but potentially colossal—difference between Oregon’s law and the law being proposed in Washington.
In a nutshell, Washington’s I-933 says that when government regulation reduces a property’s value—or the value of potential uses of the property—the government should either pay the property owner for the “lost” value or else waive the regulation. (For shorthand, this sort of scheme is sometimes called pay-or-waive.) I-933 does allow for some exceptions where pay-or-waive would be plainly stupid: laws that require property owners to comply with building codes for fires, for example, aren’t eligble for pay-or-waive.
But unlike Oregon’s Measure 37, Washington’s I-933 does not allow exceptions when land use regulations are required to comply with federal laws. This is odd.
Many state and local laws and rules exist in order to comply with federal law. (When it comes to land use, the big ones tend to be the Clean Water Act and the Endangered Species Act, though there are a bunch of others too.) Without an exemption for complying with federal law, it’s easy to imagine a situation in which local governments are forced into a pay-or-waive dilemma even though they have effectively no control over the law.
In certain situations, a local government may not be able to waive, for instance, a local law designed to protect an endangered species. That would be against the (federal) law. So the local government could conceivably be forced to pay property owners to comply with federal laws (or at least the local implementation of them).
The Washington Chapter of the American Planning Association (APA) believes this federal-local conundrum is potentially a big problem. Citing policy analyses from both the Washington Department of Ecology and the Washington Department of Fish and Wildlife, the APA points out that I-933 could set up state agencies to face lawsuits from the federal government—or even be taken over by federal agencies.
The authors of I-933 studied Oregon’s law carefully. So the omission of an exception for federal law must have been intentional. But why? And what could the consequences be?
And how many lawyers is it going to take to sort this out?
More on this (and other stuff) in the weeks ahead.
Dan
Federal laws also being something, say, the Army Corps would govern, meaning wetlands. That’s harder to hide than an endangered species. As to why the Farm Bureau’s lawyers would create this tension, this should come out in the weeks to come. But it should be easy enough for states to enter into agreements with the feds when these issues arise.
Steven B.
One of the unfortunate issues for those of us in the Columbia River Gorge (an area governed by a non-elected commission appointed by state and local government entities and is clearly NOT a federal agency [stipulated in the Act itself]) who have had property rights taken via land use regulations, arises from a local court decision that ruled the Gorge Commission is a “federal agency” and therefore the policies of the management plan for the Gorge and the local implementing regulations, are federal laws. So if you are in the Columbia Gorge National Scenic Area, you can’t qualify for a M37 claim. This is being challenged and the last word has yet to be spoken on this issue. The WA initiative would appear to avoid that controversy altogether, so am very interested in how this will all come out if 933 succeeds.–Steven B.
Arie v.
I-933 was fueled in part King County’s Critical Areas Ordinance which started off with a “one-size-fits all” rather than a collaborative process. This alienated many in the rural community, even those of us who consider ourselves environmentalists and progressives. For example the original 200 foot buffers around every rural wetland would have all but frozen all development in most rural communities in the Bear Creek watershed. The wetland regulations were amended late in the process to a more reasonable approach, but much of the harm was done as all know who followed the CAO backing 2004. The $279/hr King County DDES charges for any permit or visit including transportation time to and from Renton is just one of many excesses that is going to make for a number of nasty battles to come. The CAO ordinance also defied democratic participation. The majority of the rules only applied to rural areas and the only votes for it came from urban council members. I-933 is bad policy and your post points out some potential hidden agendas that lie behind it. Frankly federal agency takeover sounds like a red herring, but creation of a legal morass is probable and it will put growth management on its ear.Washington State needs a middle ground. If you listen to the early messaging, Future Wise and Protectcommunites.org are not going to provide it; they may be as interested in their political base as in defeating I-933, which makes them dangerous allies. They will go after this as a developer’s initiative, but there will be plenty of stories from passionate rural land owners—including CAO triggered foreclosures – which they aren’t prepared for. Who is going to step up and provide leadership on this one? Governor Gregoire has made some comments about working with the Farm Bureau, but there have been no actions to date. I am definetly not interessted in seeing how this comes out if this succeeds. 🙂 Let’s not make the same blunder Oregon did and underestimate what could be a devastatingly effective pro I-933 campaign.
mazamabill
There are several other critical differences between Measure 37 and I-933 beyond those mentioned above. First, in order to file a claim under Measure 37, a landowner must have owned the land at the time the complained-of restriction went into effect. This is not true under I-933, which states that the landowner is required to establish only that the restriction be something that is intended to benefit the public and “the cost of which in all fairness and justice should be borne by the public as a whole”. Aside from being amazingly vague (there are no criteria for what “justice” or “fairness” require), there is no requirement that the restriction arise during the landowner’s ownership of the property. Second, I-933 has a far broader definition of “property” – that is, ANYTHING protected under the 5th Amendment to the Constitution. It expressly includes tangible personal property (e.g. vehicles, livestock, etc.), but in theory also includes intangible property, like stocks, bonds, promissory notes, trademarks, copyrights, etc. This is the great sleeper issue: Will I-933 effectively limit the ability of state and local government to regulate the use of personal property, including intangible property?We do need to start talking more about this Initiative, which will undermine growth management, many of the “Forest & Fish” rules, many of the Shoreline regs, perhaps some of the zoning rules (esp. those adopted since 1996), and perhaps even building and fire codes. I’m confident that the Governor will speak out against it if and when the Farm Bureau gets enough signatures (we’ll know July 7).Bill
JB
The harsh reality is that our elected and appointed officials underestimated the wrath of landowners. It should have been obvious to them that the cao was going to stir up the hornets nest, but they refused to listen even though the halls were filled with testimony from irate landowners. This was my concern all along. I suggested at meetings that the fix was too much too soon and would likely be the undoing land regulations. What we really need here is new leadership, actually what we need is leadership period.JB