In a unanimous ruling, the Oregon Supreme Court recently upheld a controversial property rights measure known as Measure 37. Approved by voters in 2004, the measure requires the state to compensate owners when land use regulations reduce the value of private property. Despite dire predictions that it would bankrupt the state and cause environmental devastation, Measure 37 passed with 61 percent of the vote.
Now, the Washington Farm Bureau has filed initiative I-933, the “Property Fairness Initiative.”Like Measure 37, I-933 would require government agencies to compensate landowners for regulations that lessen the use or value of private property. What’s going on here?
The problem is that some government agencies have gone too far. After years of unanswered complaints about government excesses, some people have decided to do an end run around regulators and go straight to the voters.
The Farm Bureau Web site lists examples of what it characterizes as excessive land use regulations without compensation to land owners:
King County has adopted a “65-10” plan requiring some property owners to leave 65 percent of their property in native vegetation, and to have “impervious surfaces” on no more than 10 percent. Impervious surfaces, in King County, include dirt and gravel roads.
A growth hearings board ordered Stevens County to adopt property use restrictions to protect Lake Loons and Red-Necked Grebes that are not on the state or federal protected species lists. The board said they were “species of local importance” and therefore, the county should adopt habitat restrictions to protect their nesting areas.
The Department of Transportation has taken property through eminent domain more than a mile from a state highway so they can “re-mitigate” a wetlands project from years past.
Lately, property rights activists have focused their ire on eminent domain. State and federal governments have always had the power to take private property “for the public good” historically defined as roads, parks, and other public facilities.
But the City of New London, Conn. decided to push the boundaries, condemning homes in an aging neighborhood to make way for a private office, hotel and condo development. This was the first time private property was taken through eminent domain and given to another private citizen.
Enraged homeowners took their case to the U. S. Supreme Court. In a stunning ruling, the Court said that since the city would gain more tax revenue, the condemnation was for the public good. The ruling ignited a firestorm of criticism, sending state lawmakers across the nation scrambling to pass legislation limiting the powers of eminent domain.
Here in Washington, we have our own eminent domain nightmare. It was not only what government agencies did, but how.
For example, the defunct Seattle monorail project used the power of eminent domain to purchase 34 businesses, residences and properties. Now it is selling those properties to the highest bidder and the original owners, many of whom were reluctant to vacate, now have to essentially go to an auction to get their property back. There are no provisions to compensate them for their losses and allow them first refusal rights to buy back their property.
In 2003, Sound Transit condemned Kenneth and Barbara Miller’s property for a park-and-ride lot. The Millers had known that Sound Transit officials were interested in their property, but nothing definite had been decided and the Millers heard no more about it.
Then Sound Transit officials condemned the Millers’ land without telling them. The Millers were not notified nor were they invited to the meeting at which the decision was made. Sound Transit defended its actions, saying it posted a notice on its Web site that officials planned to take “certain real property interests” near a railroad station. The notice didn’t specify the property.
The Millers sued, but the state Supreme Court ruled 5-4 that the notice was sufficient.
If Sound Transit officials feel reassured and vindicated by the court ruling, they shouldn’t. This was a pyrrhic victory. If those officials and others in government listen very carefully, they will hear the footsteps of villagers charging toward the castle armed with torches and pitchforks.
Don Brunell is president of the Association of Washington Business.