Note: This is part of a series.
When Measure 37 passed in Oregon, it triggered an avalanche of imitation. It sparked I-933 in Washington, a ballot measure that would fundamentally re-define how property uses can be regulated. Because the authors of I-933 studied Oregon’s law, it’s often thought that I-933 is simply an Evergreen State version of 37.
But that’s not right. The truth is that I-933 is not a clone of 37 so much as it’s a steroid-pumped version of Measure 37. Despite the fact that I-933 weighs in at a hefty 1,600 words, compared to Measure 37’s bantamweight 1,000 words, I-933 contains many fewer protections for communities and taxpayers.
A close reading of I-933 reveals that Oregon’s experiences under Measure 37 are not a reliable guide for understanding how I-933 would work. Like Barry Bonds stepping up to the plate, I-933 will have a much bigger effect than its predecessor.
Just how is I-933 “juiced”? Let me count the ways…
Find this article interesting? Support more research like this with a gift!
- I-933 makes no allowance to enforce federal laws like the Clean Water Act and Endangered Species Act. Credible analysis says that this could set the stage for bizarre scenarios, such as the takeover of state agencies by federal regulators.
- I-933 sets no time frame for making claims. Oregon property owners were given a generous 2 years if they make claims against an existing law; 180 days against a new one. In Washington, the clock never runs out, giving land speculators and developers every opportunity to time their claims for big wins.
- I-933 makes a much smaller allowance for human health and safety. Even under Measure 37, Oregon property owners can’t threaten the health and safety of their neighbors. Under I-933, Washington property owners can jeopardize health and safety, so long as the threat is not “immediate.”
- I-933 not only guarantees property owners that they’ll be paid to obey the law (or have the law waived), as in Oregon. I-933 also saddles state and local agencies with paperwork and review requirements so onerous that simply complying with the law will likely cost taxpayers well over $1 billion.
- I-933 allows almost anyone to make a claim, almost anytime. In Oregon, claimants or a family member must have purchased the land before the regulation they’re challenging went into effect. Not so in Washington. I-933 is written so that it’s possible—at least theoretically—for a property owner to buy a regulated piece of property and then turn around and demand compensation for the regulation (or else have the regulation waived).
- I-933 may allow claims against century-old laws. Most analysts believe that I-933 restricts claims to regulations enacted post-January 1, 1996 (just as Oregon’s law restricts claimants to regulations enacted in the era of that state’s growth management). But I-933 is deceptively written. That date appears twice. Once it refers specifically to local setback ordinances, not other forms of regulation. And once it appears under a heading of “..includes, but is not limited to…,” leaving open the possibility that claims may not be limited to laws passed since 1996.
- I-933 doesn’t make allowances for public nuisances. Oregon’s Measure 37 sensibly allows for regulation clearly in the public interest (removing animal carcasses, for instance, or disallowing noxious odors). The authors of I-933 studied Oregon’s language and then deleted the exemption for nuisances.
- I-933 may not allow communities to regulate the placement of porn shops, sex offender housing, or strip clubs, as Oregon’s communities can. Although I-933 appears to make an exemption, the language is crafty. Limiting sex commerce (and offender housing) is allowed only if the restriction applies equally to all property across the community’s entire jurisdiction. But sex commerce is precisely the sort of thing that’s never regulated equally across a whole community. That’s sort of the point.
The differences between 37 and I-933 are interesting because the authors of I-933 studied 37. So why didn’t they include some of 37’s more important protections and limitations? We can only guess.
It’s possible that the authors of I-933 were just clumsy. That they didn’t know how to write an initiative well. That they didn’t mean to include language that is deceptive and misleading. That they accidentally deleted the protections in Measure 37.
It’s possible, I suppose, but it doesn’t really matter what the author’s intentions were. If I-933 becomes law, it will be interpreted based on its actual language, not its intentions. And its actual language make for a law that is much more aggressive than the one in Oregon.
This is a strong post in that it helps to further draw out talking points on why I-933 is not only poor law, but poor property rights law. Moving the clock back to pre-1996 regulations means we all have to look very carefully on what can happen in our neighborhoods and to our own property values and rights.It’s the hearts and minds debate that I’m worried about. The technocrats and informed voters will vote no. Joe sixpack who sees a TV add about a family living on the brink of debt forced into foreclosure due to the CAO might not. How do we address this? What mistakes were made in Oregon that we can remedy here? Does someone need to offer an olive branch? (I’m implying yes.)
Eric de Place
Arie,Thanks. Folks in Washington (on both sides of the issue) are definitely studying Oregon. In particular 1,000 Friends of Oregon has been an excellent resource for those opposing I-933. And that opposition is spearheaded by the Communities Protection Coalition (http://www.protectcommunities.org/)–they’re looking carefully at how to avoid some of the perceived mistakes made in Oregon. This issue, of course, is actually pretty complicated and much hinges on the states’ electoral characteristics and larger political timing.I also think there’s some merit to offering an olive branch. Whether or not you believe that CAOs and other regulations are appropriate, it’s clear that some regulations were a huge PR blunder. Now, after the fact, King County is doing its best to remedy the situation by, for instance, appointing a rural ombudsman so political leadership is connected to rural landowners’ complaints. Future land-use planning will have to avoid the appearance of top-down heavy-handed government mandates. I think there a number of ways to do this and still protect natural resources and community livability from the sort of no-holds-barred anything-goes policy environment that I-933 could give rise to.
I want to post in support of Arie V.’s comment. This is an issue of which I have read nothing except here at Sightline. It concerns me though, because it is not one that I was able to understand all that easily which leaves me wondering how doable it will be to convince voters that this is not the right way to modify property-use laws.So often, it seems, the people with the first idea for doing something, win because they make the premise sound simple and in one’s own best interest. But as so well-noted above, this measure is NOT the way to modify property laws (I don’t even know if they need modification).Anyway, this is obviously a serious conservation/communities/state’s rights/growth management act issue and it seems we need to be prepared with a simple, concise sound bite that will convince landowners to reject this measure; at least in the interest of being able to pass a better version of it since I doubt anyone can keep the majority of landowners in this state from ever passing a law that allows them to circumvent pre-existing statutes that they don’t like. Is Sightline coming up with such a message? Is someone? I hope so.
Charlie, someone is coming up with a message. Eric, here’s an interesting interview on Planetizen about M37 that may be of interest to readers.
Eric de Place
I should also mention: I’d love to see this blog become a forum for hashing out thoughts related to I-933 and other “regulatory takings” proposals. As commenters have noted, communications is often as powerful as substance. So I’d be very interested in knowing what “plays” well and what seems too abstruse or leaden. (And of course, I welcome reactions to content!)
I would like to see us look to last year’s defeat of competing “patients rights” initiatives I-330 and I-336 as an example to emulate.Gov. Gregoire, the Insurance Commissioner, nurses, AARP, state reps and others acknowlegded that there was a need for change and that the initiative process was not the way to address complex problems. “Let the legistlature do its work” was an appealing message.As a rural landowner in KC and I’ve seen some regulatory horror stories so I believe there is a need for change. I may be in the minority here. However, we should choose to either state clearly why current regulations work for *all* of us or be willing to say there is a way to work for a betterfairer system. Simply throwing stones at a “developers” initiative will not play well against the type of personal stories that carried M37.
‘Arie wrote:However, we should choose to either state clearly why current regulations work for *all* of us or be willing to say there is a way to work for a betterfairer system. Simply throwing stones at a “developers” initiative will not play well against the type of personal stories that carried M37. Yes. Understood. It’s called ‘Protect Communities’ for a reason.
In regard to Eric’s comment on 5/26, it seems to me that it was top down, heavy handed government mandates that created the property rights mess in the first place. Pioneers and the US Army were mandated to commit genocide against the native inhabitants and to steal their land. Current laws, regulations, and cultural mores mandate that every property be used for its highest economic value, and one is made to feel like a cultural pariah if ones dares to waver from this path and put either people or planet above profit.What people need to wake up to is the inescapable fact that everything is interconnected, and that as a species, we’ve already broken too much ground. Critical Area Ordinances and similar regulations are meant to protect life. Why do humans think this doesn’t include them?The only olive branch that needs extending is to our Earth Mother. Arguing legal minutia in this case is nothing more than a very feeble attempt to rationalize ecocide—which means the end of life as we know it. It’s too bad that this very simple concept seems so hard to understand.
Dave,Since I throw stones at King County a bit, I should mention that there is a wonderful KC program call the Public Benefit Rating System (PBRS) that allows landowners like myself to put portions of our land into preservation and then pay a lower tax rate on that portion. This allows me to put aside 70+% of my land and still benefit even though it may not be the “highest and best” use. The CAO is perceived to be unfair because the cost and burden of it is born solely by the rural land owner. KC has a 90-10 rural urban areas population split which to a rural cynic allows Fremont to impose whatever rules it wants on rural Duvall without any accountability. DDES is funded 100% per fees, so there is no danger of breaking any county budget. Taxation without representation 🙂
Is it OK with everyone that I933 awards legal fees to plaintiffs? Remember loser pays? That’s for losers! I933 has a carte blanche for keeping lawyers employed:“Compensation” [in addition to fair market value] includes any costs and attorneys’ fees reasonably incurred by the property owner in seeking to enforce this act.The side effects of this clause are likely to be much more significant than its intended effects. It’s obvious what kind of behavior this doctrine encourages. There certainly exists sufficient numbers of creative attorneys to run up a legal bill exceeding the entire state budget. Their most valuable clients are only buying a bit of drama to secure waivers for developing extremely valuable land tracts. They would only pay a small fraction of their “reasonably incurred” bills, without being compensated by the state. Procedural ploys in the ambitious lawsuits will eat up court time. Individual property owners with smaller claims will have slim chances of being heard.Why isn’t anybody talking about THAT?