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…
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- 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.