No regulation without compensation. That's the simple idea behind Initiative 933. Trouble is, there's no consensus on just how far the property-rights...
No regulation without compensation. That’s the simple idea behind Initiative 933.
Trouble is, there’s no consensus on just how far the property-rights measure on the ballot next month would actually reach.
Everyone agrees on at least this much: If I-933 passes, the state, cities and counties would be required to pay landowners to follow many regulations adopted since 1996 that restrict what they can do with their property.
Opponents say the initiative could encourage sprawl and bankrupt the state. Supporters say those dire forecasts are exaggerated. This isn’t about money, they say. What it’s really about is less regulation.
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Where it came from
• In 1922, the U.S. Supreme Court ruled that property owners deserve compensation when government rules go “too far” in limiting use or reducing value. But property-rights advocates say courts have set the “too far” bar too high.
• In 1995, Washington voters rejected a property-rights measure similar to I-933 that had been drafted largely as a backlash against the state’s 1990 Growth Management Act.
• Recently, counties have adopted tighter rules in rural areas to protect wetlands, streams and other so-called “critical areas,” reigniting the rage of many landowners and rekindling the property-rights movement.
Pro-933 campaign: Property Fairness Coalition: www.propertyfairness.com
Anti-933 campaign: Citizens for Community Protection: www.noon933.org
Official I-933 text: www.secstate.wa.gov/elections/
Voters’ pamphlet: vote.wa.gov/Elections/Measure.aspx?a=933&c=1
• In 2004, Oregon voters approved Measure 37, a property-rights law that inspired activists all over the country. In addition to Washington’s I-933, similar measures are on ballots this year in Idaho, California and Arizona.
• The Washington State Farm Bureau drafted I-933 and collected signatures to get it on the Nov. 7 ballot. Americans for Limited Government, a Libertarian-oriented group based in Illinois, provided much of the money to pay signature-gatherers.
Family’s land has been farmed for generations
Property owner: Ray Gabelein, 50.
The property: 85 acres on Whidbey Island, mostly diked tideland, that his family has farmed for nearly a century. Gabelein, who owns a construction company, raises cattle and hay to supplement his income.
The regulation : A new Island County rule that requires some landowners to keep their cattle out of “farmed wet meadows,” pastures often covered with standing water after heavy rains, between Nov. 1 and May 31. It’s part of a package of regulations the county adopted this year to protect “critical areas” from agricultural activities.
The impact: Most of Gabelein’s land is “farmed wet meadow.” He can graze his cattle there during the rainy season only if he keeps his herd below a certain size.
“Do I want to have someone dictate to me how I manage my place?” he says.
The rule’s supporters say it’s based on federal Agriculture Department guidelines. Gabelein’s land drains into an estuary that is habitat for juvenile salmon. “Salmon nurseries full of cow plop just don’t work,” says Marianne Edain of the Whidbey Environmental Action Network.
Gabelein says there’s no real evidence his cattle are polluting. Farming operations like his are part of Whidbey Island’s rural charm, he argues, and such regulation threatens them.
“It’s foolish to drive the last few farms out of Island County,” he says.
What if I-933 passes? Gabelein could apply to the county for monetary compensation for any lost use or value of his property if the rule remains in force. “I’ll be the first one up at the courthouse,” he says.
The initiative says Gabelein should be compensated for the fair market value of his loss, plus any costs or attorney’s fees. But it doesn’t say how that value would be calculated, or who would calculate it.
Two big questions the courts may have to decide
1. Could Island County waive the rule instead of paying Ray Gabelein?
Gabelein says that’s what he really wants, not money. Backers of I-933 insist that the county could indeed give him a waiver.
But the language of I-933 doesn’t specifically grant governments new power to waive environmental rules. It only alludes to an existing authority.
Land-use lawyers who represent a variety of clients say there’s no legal authority now to waive or grant variances to regulations that were adopted to comply with the Growth Management Act and other key environmental laws.
That leaves monetary compensation. Two recent studies — one from the state budget office, the other from a University of Washington institute — estimated I-933 claims could cost taxpayers billions of dollars. But I-933 backers say that actually shows how much property owners stand to lose if the initiative doesn’t pass.
Richard Stephens, a lawyer who helped draft I-933, argues governments already can grant variances to growth-management rules, so they could do the same under I-933.
2. What about land-use laws passed before 1996? Could landowners like Ray Gabelein also seek compensation (or waivers) for them?
I-933 sponsors say absolutely not. But other lawyers say it’s possible, and even Stephens, the lawyer, has said it’s a gray area.
Here’s the source of the confusion:
I-933 lists six categories of regulations for which property owners could demand compensation. First on the list: Rules that prohibit or limit anything that would have been allowed in 1996.
For the other five categories, however, no date is specified. They include rules regulating logging, and rules requiring that any part of a property remain in its natural state.
Some experts in land-use law say landowners could seek compensation for those regulations regardless of how long ago they were adopted — conceivably back to statehood.
But Stephens says the last five categories are simply examples of regulations covered by the first category, so the 1996 date would also apply to them.
Other points of contention
What’s exempt? I-933 exempts some regulations from compensation, including those that “apply equally to all property subject to the agency’s jurisdiction” and those aimed at preventing “an immediate threat to human health and safety.” Those terms aren’t defined.
Personal property included? I-933’s compensation requirements also apply to rules regulating personal property, such as cars, company stocks and other assets, as well as real estate. Sponsors say that’s to protect such things as tractors, livestock and water rights. A study issued last week by a Seattle lawyer said that provision of I-933 could undermine everything from animal-control ordinances to nursing-home regulations. The Farm Bureau disagrees, saying most rules affecting personal property would be exempt because they fit in the “apply equally” clause.
“Consider and document”: I-933 would require governments to “consider and document” the potential impacts of all new rules on private property and consider alternatives. But it’s unclear how detailed that would have to be.
In its analysis, the state budget office assumed the requirement would mean reports like ones agencies now prepare analyzing the impact of proposed regulations on small business. It estimated that would cost $136 million to $163 million over six years. Opponents say that’s exaggerated.
Opponents of I-933 have raised three times as much cash as supporters. What’s more, the pro-933 campaign spent most of its money earlier this year gathering signatures to qualify the measure for the ballot. Since July 1 it has collected just $171,000, while opponents have raised $1.65 million.
Who’s for I-933?
Washington State Farm Bureau; Building Industry Association of Washington; National Federation of Independent Business; local property-rights groups; state Republican Party.
Top cash contributors
1. Americans for Limited Government, Glenview, Ill.: $260,000
2. Washington State Farm Bureau and county affiliates: $227,347
3. (tie) Randall Living Trust, Freeland, Island County: $25,000; Building Industry Association of Washington, Olympia: $25,000
5. Citizens Alliance for Property Rights, Enumclaw: $8,342
Who’s against I-933?
Environmental and land-conservation groups; Greater Seattle Chamber of Commerce; organized labor; American Planning Association; state Democratic Party.
Top cash contributors
1. The Nature Conservancy, Arlington, Va.: $223,062
2. Futurewise, Seattle: $152,000
3. (tie): George Russell Jr., retired investment management executive, Gig Harbor: $100,000; Maryanne Tagney-Jones, environmental activist, Preston: $100,000; Paul Brainerd, retired software executive, Seattle: $100,000; James Roush, investor, Medina: $100,000.