"Initiative 933 It's about fairness"

An editorial in today's Seattle Times:

Initiative 933 is about your rights to your property. Under I-933, when government takes away some of your rights over your land and makes your land go down in value, it would have to pay you.

Government could still stop you from creating a hazard or a nuisance to your neighbors without having to pay. That won't change. What will change is that if government wants to stop you from such things as clearing brush, filling in a pond, cutting a tree, building a house or putting in a garden, and the rule it wants to impose on you was created after Jan. 1, 1996, it would have to pay you for depriving you of a right.

The initiative is sponsored by the Washington Farm Bureau. It is of particular interest to farmers, who have been complaining for years of the compulsions imposed on them by city people. But really, it would give extra protection to all owners of land.

Politically, I-933 is a response to city people's efforts to protect wildlife and natural beauty and to make rural people pay for it. Rural people see this as unfair, because the benefit is for everyone, but the cost falls on them. As former Environmental Protection Agency head Bill Ruckelshaus said earlier this year, "If people think the government has come along and taken part of their land away to address a national problem, they think it's unfair. And they're not totally wrong, by any means."

Here is an example. In 1977, Edwina Johnston bought land south of Interstate 90 at Preston in rural King County. In 1991, the land was zoned for one house on five acres. Johnston still has 30 acres, which should accommodate six houses. But since 1996, she says, King County government has imposed a wide buffer around two seasonal streams. Of these streams, she says, "One is two inches wide and the other is about a foot wide, and neither has any fish." That doesn't matter. No building is allowed in a buffer.

In addition, she says, the county's Critical Areas Ordinances mandated that 65 percent of each lot remain untouched and that no more than 10 percent be covered by waterproof surfaces like roofs or pavement. Requirements for scientific studies have made dividing 20 of the 30 acres so complicated that it would eat up most of the property's value.

This means, she says, that the county has taken away much of the value of her land. She is 73. "I bought this for my retirement," she says. "I have no pension."

If Edwina Johnston had a pension, it would be unconstitutional for the government to take it from her. You might think the same would hold for her rights to her land. The Washington Constitution of 1889 says, "No private property shall be taken or damaged for public or private use without just compensation having first been made." The Fifth Amendment to the U.S. Constitution, passed in 1791, says, "Nor shall private property be taken for public use without just compensation."

That would seem clear, but the courts have had great difficulty defining the word "taken."

The question came to the U.S. Supreme Court in 1992 in the case of a South Carolina builder. David Lucas had paid almost a million dollars for two waterfront lots. The lots were zoned for beach houses, many of which were there already. Shortly afterward, however, the state said it needed to protect the sand dunes, and forbade any more beach houses.

Had the state taken Lucas' property? He thought so. State officials thought not; they had only regulated him. He still had his lots. He could pitch a tent on them or spread out a blanket and have a picnic on them. The court, however, ruled that the thing for which he had paid a million dollars — the right to put up a house — had been taken, and that the state had to pay for what it took.

From this case came the rule that if government takes all the economic use, it has to pay. In the years since 1992, governments in many states, including ours, have learned to take part of the economic use and pay nothing.

King County did this with its Critical Areas Ordinances, which were designed to get as close to the Lucas rule without triggering it. Seattle has done the same by declaring seasonal mud puddles of 100 square feet to be "wetlands," and imposing no-build buffers around them.

Oregon declared that an owner of rich farmland could not build a house on it if he earned less than $80,000 a year by farming it.

It was in Oregon that the reaction appeared. In 2004, Oregon voters passed an initiative much like I-933. Oregon is a liberal state; in 2004, it gave John Kerry 52 percent of its votes for president. That year, Oregon voters also passed Measure 37, the property-rights initiative, by 61 percent. The Oregon Supreme Court unanimously declared it constitutional and it went into effect a few months ago.

Statewide, Oregon property owners have made more than 2,000 claims under the new law, most of them family landowners in rural parts of the Willamette Valley. So far, all the claims that have met the standard of the law have been granted waivers.

The Oregonian in Portland reported that the first owners to build under a Measure 37 waiver in Clackamas County were Vern and Alice Waite, who had owned 15 acres since 1973. They had a barn but no house, and Oregon had passed a land-use code that forbade them for no good reason from building a house unless they earned $80,000 a year from the land, which they didn't. Now they are putting up a house.

Opponents of I-933 are shouting that if government has to actually pay for what it takes from citizens, that will doom the environmental laws. This is environmentalist doomsaying. I-933 won't touch any law, zoning code or rule passed before Jan. 1, 1996, and by that time there were quite a few of them. For newer rules, it will require payment — but only if the property value is reduced by the government's rule. Sometimes it's not reduced.

In some cases, potential payments might add up to many millions of dollars. But that is admitting that government wants to take people's assets worth many millions of dollars and not pay for them.

I-933 would still allow government to protect wildlife or natural beauty, but it would make it more expensive for government to do it by imposing rules on landowners.

There are, however, other ways. Consider the Nisqually River. It flows out of Mount Rainier National Park and into the last undeveloped delta on Puget Sound. Salmon spawn in the river and elk migrate along it. These are large islands of habitat that would be much more valuable linked in a corridor, but there are too many human investments in that corridor to do that cheaply.

People found a different way. The Nisqually is being preserved with a 50-year agreement among government agencies, tribes and private landowners, many of them farmers. Seattle trade consultant Bill Bryant worked for several years on the Nisqually agreement, and argues that it is a superior alternative to top-down regulation. It is adaptive and flexible rather than bureaucratic, and it lends itself to win-win solutions instead of one group imposing its wishes on another.

In the Nisqually talks, owners have been asked to think how they could accomplish their long-term plans without harming wildlife. And they have cooperated. They like the idea of saving wildlife. They like the idea of being asked. Of course, it was done with the background possibility that they would have their rights taken away, and a few owners were wary about that. But Bryant says, "We haven't had anybody say, 'Hell, no.' "

A rule requiring payment for takings, says Bryant, would cause people to try a Nisqually-type agreement "much earlier in the process." Owners would enter such negotiations with stronger rights, and a result that satisfied outsiders' environmental wishes might cost environmental groups, or the public treasury, more. But the outcome would be fairer to all concerned.

Really, that is what I-933 is about: fairness. It is about government paying for what it takes. Of course it will cost something, but that it is cheaper to steal is not an argument for theft.