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.
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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.