11 States To Vote On Challenging Kelo

Eleven states have initiatives on their ballots this fall that could go against 2005's Supreme Court eminent domain decision in the case of Kelo v. New London.

Libertarian real estate investor Howie Rich has sponsored ballot drives in eight states to override the federal government's power to take private property in the name of public economic development.

"Louisiana will vote Saturday during its primary on two ballot measures on eminent domain. Ten other states will vote on the issue Nov. 7."

"Rich's allies in California, Arizona and Idaho combine eminent domain on the ballot with a separate land-use issue at the heart of the property rights movement. It's a proposal to make governments pay property owners for "regulatory takings" - zoning, height limits or other building restrictions that substantially reduce the land's value. Washington state has a ballot measure on regulatory takings."

Full Story: Voters get a say on land rights

Comments

Comments

Kelo as stalking horse.

Rich is using Kelo as a stalking horse to get private property-rights (PPR) initiatives on state ballots, as the PPR movement at the federal level has stalled.

For example, in WA state, Rich's signature gatherers used Kelo as the reason for their PPR initiative, despite the fact that WA's constitution forbids this sort of taking; the pro-initiative folks have had to retract their position on this issue, and now they have nothing to talk about except 'unfair'. In fact, pro-I-933 folks don't even provide handouts at some of their presentations, as they have so little to go on.

In addition, what the USAT arty doesn't mention is that two states in the west have invalidated their nominally Kelo-based initiatives, deciding they were bait-and-switch instead of fact-based measures.

It would behoove planners to hurry up and get out there to let the public know that Kelo is a stalking horse to gut land-use law at the state level.

Best,

D

Respectfully disagree with "stalking horse" claim

Dano,

I have to respectfully disagree with a few of your assertions.

1) "now they have nothing to talk about except 'unfair'": Your statement seems to dismiss "fairness" as a minor issue, which it's not. If this was the case, 61% of Oregonians would not have voted for Measure 37. Even in a traditionally 'blue' state, a majority of voters--many of whom still support the state's centralized land use planning system--recognized that the implementation over the last 3+ decades has had significant negative effects on a lot of landowners. The notion that they voted for, which is the underlying concept behind I-933 (WA), Prop 90 (CA), Prop 207 (AZ), and Prop 2 (ID), is that it is fundamentally unfair to force a minority of private landowners to bear the costs of providing a public benefit. If the public benefits of land use regulation are as worthy as supporters claim, then paying compensation to property owners is merely acknowledging the public value of such benefits and not shifting the cost burden onto a minority.

2) "in WA state, Rich's signature gatherers used Kelo as the reason for their PPR initiative, despite the fact that WA's constitution forbids this sort of taking": Can you refer me to your source on this? Since I-933 is a regulatory takings measure only, I find it hard to believe. I-933 didn't just come out of nowhere...the Washington Farm Bureau advanced a similar measure in the mid-90s, so given the passage of Measure 37 next door in 2004, it only seems natural that they would try again. Also, I don't know if the claim about handouts is accurate or not, but I do know that the proponents are not shy about articulating their case, as a visit to their website would attest.

3) "two states in the west have invalidated their nominally Kelo-based initiatives, deciding they were bait-and-switch instead of fact-based measures.": This is completely incorrect. In Montana, I-154 was the subject of a court challenge regarding signature gathering, which is working its way up to the state Supreme Court. As I understand it, it will still appear on the ballot, and the courts will determine whether or not votes for or against it will ultimately count. In Nevada, the regulatory takings portion of their proposed constitutional amendment was struck down because a judge ruled that it violated the state's single-subject rule. My main point here is that the legal issues at play in these two states are LEGAL issues, not something to do with "bait-and-switch" or the merits of the initiatives.

4) "Kelo is a stalking horse to gut land-use law at the state level": This is unfortunately a widespread, but deceptive, myth. Since the CA, ID, and AZ measures are prospective-only measures, they would leave existing state and local land use and environmental regulations in place and would only apply to FUTURE regulations. Any attempt to draw parallels between them and Measure 37 on an implementation level are inherently invalid for this reason: M37 was retroactive; the CA, ID, and AZ measures are not. In Washington, I-933 has limited retroactivity (back to 1996), but it would exempt a lot of the land use and zoning regulations adopted under the state's GMA, as the bulk of them were adopted before 1996.

Far from a "stalking horse," the reality is that these measures are based on a fundamental concept. If you own land that the government wants to preserve as open space, for example, for the benefit of the entire community, it can pass a regulation that prevents you from developing your property, and you get stuck paying the cost of providing that open space for the community at large. Most people would agree that that's not fair...the public should pay for the things everyone benefits from. That's what we do with roads, parks, etc., and that's what we should do with open space and other public amenities routinely acquired through confiscatory regulations.

Further, the costs of regulation that are borne by private landowners are essentially "hidden" from the public and from decision makers, and these ballot measures would effectively make these costs transparent and explicit. Bringing these "off-budget" costs "on-budget" would promote fiscal discipline, transparency, and accountability, as government would be obliged to consider a wider range of financial impacts associated with future regulations. This would facilitate more efficient decision making and more informed public debate.

It's great to have a venue here where folks can debate the pros/cons and merits of these measures, but it's important to at least get the facts straight before that discussion can begin.

Len

Well-done reply

Thank you Leonard.

I have your piece you did for Reason, the blueprint for how to get PPR measures enacted. It's fascinating reading and I use it a lot to frame my argumentation.

The folk in WA are using your blueprint well, BTW. Our City Council last night enjoyed a citizen staying on message in their I-933 address. Sadly, the message they were staying on was lacking in concrete facts; the Council was educated on the issue and wasn't swayed by his emotional appeal, as the initiative is poorly written and will cost $Bs. I must say, though, your "A. Myth: Measure 37 Decimates Land Use Regulation" section falls especially flat here in WA, as that's exactly what I-933 does (I haven't followed the debates in other states, as I lack the time to do so). Perhaps a supplement tailored to particular states would help individuals to a better job.

Anyway, wrt your argument in 1), my argument is that the proponents have no numbers, only emotional arguments. They can't bang the facts, so they must bang the table - they bang it with the 'unfair' cudgel. Wrt 2), the wording of the initiative itself has eminent domain in it and you should call Dan Wood to ensure that all his folk got his message to desist from conflating Kelo to the initiatve. Also, there are plenty of folk here in WA who have written LTEs conflating Kelo to the initiatve, as well as folks who were approached to sign a petition where the signature gatherers conflated Kelo to the initiatve. Wrt 3), I take it you agree with my assessment of what happened in MT (The court finds that the signature-gathering process was permeated by a pervasive and general pattern and practice of deceit, fraud and procedural non-compliance.), and rereading the NV press, I stand corrected on the NV decision. Wrt 4), you know as well as I do that Kelo is driving these boats, as Kelo was not a victory for PPR folks at the national level, as the USC continued precedent and pushed LU law down to the state level yet again.

Anyway, it is proper and right that Americans debate property. And property is a fundamental value not specifically defined by our Founding Fathers, thus our society must periodically debate property issues, as our values change over time - for example, we no longer consider women property, nor do we hold slaves as property, and we overruled the property rights of lunch counter owners and told them to serve African-Americans. But don't overreach when looking for remedy, Leonard, as the debate will never be over, yet the PPR folks act like it is.

As far as framing your 'fundamental concept' argumentation (the public should pay for the things everyone benefits from), this isn't fundamental at all.

For example, I benefit from safety. Why should I pay you to not strike me in the nose? I benefit from clean water. Why should I pay you to not pollute my water? I benefit from clean air. Why should I pay you to not put in a factory dairy farm? What happened to your responsibility to society? Odd argument, that paying you to uphold societal responsibility bit.

Best,

D

Thanks for the reply Dano.

Thanks for the reply Dano. We are obviously on two ends of the spectrum here, but that's fine...we can agree to disagree. But I'd like to reply to a few of your assertions.

1) Can you please explain to me why you think that I933 will decimate land use regulation? Zoning and other regs enacted before 1996 (which includes the bulk of planning done under the GMA) are exempted, so I'm trying to figure out what specifically you base your claim on...

2) Can you explain why you think I933 will cost billions? M37 opponents made the same claim in Oregon, and they were clearly wrong.

3) You are framing the debate as one of "emotional arguments" lacking "facts." First of all, what "facts" are you looking for? As I see it, this is an issue of principle, like many, many issues we face in public policy. What "facts" are you using to articulate the anti-933 side? Perhaps it's a semantic issue, but I don't see it as an "emotional" argument to object to the current state of affairs -- governments routinely pass regulations NOT directly tied to public health and safety that devalue private property without compensating landowners. We as a society pay for public roads, parks, and gov't buildings, but somehow it's OK to NOT pay for downzoned open space ostensibly created for environmental and community aesthetic reasons? King County's 65-10 rule is a great example of that...instead of buying the development rights to 65 percent of the county's rural areas, the county opted for the five-finger discount. Call it emotional if you want, but I think that that is an eggregious overreach of government. If someone took $65 of the $100 in your wallet to pass out to the rest of the people in the room, and then told you that you could only spend $10 of the remainder, wouldn't you have a problem with that?

4) The words "eminent domain" appear exactly twice in the explanatory/findings section at the top of the initiative establishing the argument about the erosion of property rights (which I'd argue is legitimate in that discussion), and they occur AFTER discussing regulatory takings. It's certainly not in the ballot title, nor would anyone who took the time to actually read it come off with the impression that the measure is about eminent domain. If people are writing LTEs that talk about Kelo in the direct context of I-933, they'd be off-base. But if they're using Kelo to further the argument that our property rights aren't safe, then that's perfectly legitimate...regulatory takings and eminent domain abuse are complementary issues and the key components of the steady erosion of property rights.

5) I certainly do NOT agree with your contention about Montana. You said, "they were bait-and-switch instead of fact-based measures." To me, this indicates that you believe that the legal challenge had something to do with the content and merits of the measure. The truth is that the challenge is not about that at all...it's about signature gathering and procedural issues associated with the petition drive. Where do "fact-based measures" come into that equation?

6) Kelo pointed out to people that they can't rely on the courts to protect their property rights and that they need to take action at the state level if they want to achieve any pushback on the steady erosion of private property rights. Factor in Measure 37, an example of citizen action at the state level to address property rights infringement, and you have rejuvenated momentum in the property rights movement. As I mentioned above, RT and ED are complementary issues.

7) You seem to hold the view that property rights are an elastic concept that can change according to societal whims. That's a valid viewpoint, and I respect that (but disagree). For me though, I come from the "natural rights" school of thought that says that human rights (which include property rights, IMO) are inherent and fundamental, not an amorphous concept. Can one argue that the Founding Fathers' generation was inconsistent in their application, or defense, of human rights? Sure. But that doesn't somehow invalidate the larger concept. What concerns me is that our constitutional framework was designed to protect the minority from the tyranny of the majority, and the rise of Progressivism and majoritarian rule (and the planning systems that have grown out of that) over the last century has been contrary to that first principle. So now we have widespread land use planning systems and policies that effectuate the tyranny of the majority, in which it's somehow viewed as OK to force private landowners to bear the costs of providing public benefits.

So as I see it, many of the opponents of increased property rights protections -- particularly those in the smart growth and environmental movements whose agendas are substantively advanced through the unfettered ability of government to regulate at will -- are scared that the "free ride" will end.

8) Your last contention is a straw man, is not applicable, and is just as "emotional" as you claim the other side to be. None of the regulatory takings measures would prevent regulation -- or require compensation -- for public actions to address legitimate public health and safety concerns. They explicitly exempt such regulations (read the measure). That's where "societal responsibility" comes into the equation. The notion that I-933 would create some sort of free-for-all is completely bogus. All of the "pig farms/nuclear power plants in your neighborhood" and "pay polluters not to pollute" claims are a disingenuous scare tactic, and the opponents know that.

There are fundamentally two different kinds of laws: those that protect individual rights and those that provide public goods. The former include traditional police power activities that prevent nuisances, polluting your neighbor's property, etc., and do not require compensation to those whose behavior is restricted because they didn't have the right to do engage in that behavior in the first place. But I'd argue that those laws enacted to provide public goods are analagous to eminent domain -- just as we don't force one citizen to pay for a new park or road, we shouldn't force him to pay for open space. It's a pretty straighforward concept. The problem is that the lines between the police power and eminent domain power have been blurred over time...activities "justified" under the police power (i.e., zoning) have been hijacked as a means to create public goods without compensating affected landowners. My position, "emotional" or not, is that this practice is objectionable.

Len

Thank you Leonard.

Thank you for your detailed reply Leonard.

Replies to your:

1) Every time one does a GMA update (7 yrs), you have to amend your land use regs; if you were to kindly provide us a list of the cities in WA that have amended their LU regs in this last round, that would help us visualize the scope of the impact. Therein lies the opportunity to claim damage. See 2) for the caveat.

2) The following organizations have estimated amounts for administrative costs and payments to claimants (all in the $Bs): AWC, DOE, OFM, NWCLC . [Can't take the time to provide all links right now, but I'm sure you have these analyses]

The conclusion of NWCLC is, since higher-level regs cannot be overriden by lower authorities, claims cannot be waived by, say, a _city_ where a _state_ reg prevents development in, say, a wetland.

Thus, a claim must be paid, no matter what the % dimunition in value, which is unprecedented in any state. A-N-Y. Again, to clarify: this is not pay or waive, since regs cannot be waived, so it is pay. Pay a claim for a-n-y dimunition in value. Pay, no waive.

As to your claim about costs in OR, the claims cannot be paid due to fiscal constraints, so developments are going forward. Waive, no pay. Big difference.

3) Well, it's simple: the proponents claim to want jurisdictions to do an analysis of the costs of regulation before enacting a reg. The proponents, however, haven't bothered to do this sort of analysis on themselves and the effects of their initiative (see my 2) for examples of cost analysis).

That is: the arguments are about 'unfair', not 'X lost value in Y years for Z landowners'. 'X lost value in Y years for Z landowners', being facts.

In fact, the only number I've seen from this crew is an e-mail that came across my desk that used the AWC estimated cost as the amount of value lost by property owners!

Yes, sadly, that's the best they can do for facts - misstate someone else's.

4) They've been forced to admit publicly that this isn't about eminent domain. That is: proponents will have to stop using it in their argumentation or be called on it.

5) The truth is that the challenge is not about that at all...it's about signature gathering and procedural issues associated with the petition drive.

Yes, when you reread my comment you'll agree my assertion was, as the judge said: The court finds that the signature-gathering process was permeated by a pervasive and general pattern and practice of deceit, fraud and procedural non-compliance. I said nothing about wording of the measure, as I quoted the judge about the signature gathering process being bait-and-switch, thus my naming the topic of this thread.

6) Factor in Measure 37, an example of citizen action at the state level to address property rights infringement, and you have rejuvenated momentum in the property rights movement.

Nah. Just a blip.

7) You seem to hold the view that property rights are an elastic concept that can change according to societal whims. That's a valid viewpoint, and I respect that (but disagree)

Huh. I'm not sure why you would disagree with my examples of changing conceptual views of property: do you disagree we no longer consider women or blacks property, nor do we still uphold the property rights of those who discriminate on the basis of color, religion, etc. You agree? Good. Then you agree that property rights are an elastic concept that can change according to [changing] societal [norms].

8) No. The contention that to continue provision of public goods [goods held in common by everyone and protected by governments], the public should pay the private landowner for not destroying them. That is the contention.

I just re-worded it into additional examples to aid clarity. Feel free to explain why one should be paid to not destroy my things held in common.

The government has been directed by the public to protect things held in common [public safety, clean water, clean air]. The conversation can continue over whether just compensation is equitable to those with a claim, but the conversation can't continue over whether the public should pay the private landowner to not destroy public goods. If you don't like the job the elected officials are doing in remunerating individual's monetary loss for maintaining protections, elect new ones sympathetic to your recompense views, don't eliminate the protections for everyone to priviledge a few.

It's that simple, and people are beginning to understand the argument, believe me. Ask Oregonians.

Best,

D

Must respectfully disagree, Dano

Dano,

I appreciate your willingness to engage in the back-and-forth here. You articulate your beliefs well, and though I disagree with practically everything you've written (vice-versa, I'm sure!), I respect your knowledge and your passion for these issues. With that, here goes...(same number references)...

1) Does every plan update require adopting regulations that decrease private property values? For your sake I certainly hope not. Is it reasonable to ask government to examine a broader range of regulatory options that are less impactful on property rights? Absolutely.

2) All of these numbers, and your argument, is predicated upon an assumption that the waive option will not be available, which I understand that some legal experts are asserting (though others disagree). But the concept of pay-or-waive is clearly stated in the measure. Even the opponents are calling it a "pay-or-waive" measure. All of these studies are thus attempting to portray a doomsday scenario that is extremely improbable, IMO.

The bottom line is that nothing will prevent the courts and/or the legislature from interpreting 933, interpreting/facilitating the obvious intention of having a waiver alternative to compensation, creating an implementation mechanism, etc.

3) ...the proponents claim to want jurisdictions to do an analysis of the costs of regulation before enacting a reg." Which is a perfectly reasonable expectation, BTW...

That is: the arguments are about 'unfair', not 'X lost value in Y years for Z landowners'. That's like saying that someone should have to prove that there's money in the wallet that a mugger is about to steal from him before the policeman will decide whether it's really a mugging or not. Theft is theft. Principle matters.

"In fact, the only number I've seen from this crew is an e-mail that came across my desk that used the AWC estimated cost as the amount of value lost by property owners!" If these studies are estimating that it would cost $X to compensate landowners, then what they're really saying is that gov't regulations are imposing $X of costs on people that the public is not currently seeing or paying for. Those dollar values aren't a one-way street that have meaning in one direction but not the other. In reality, opponents are forced into the awful position of having to admit that the regulatory state imposes so many costs on so many people that simply requiring it to pay for those costs would be just too expensive. Proverbial "we want to have our cake and eat it too" syndrome...

4) Like I said, it would be incorrect to refer to Kelo w/regard to I-933, unless you're simply referring to it as an example of how property rights have been eroded. But any reference to Kelo/ED as something tangibly affected by I-933 would obviously be way off-base.

5) Maybe we're not on the same page here. I was under the impression that you were using "bait-and-switch" in the way most Kelo-Plus measure opponents use it (i.e., "using eminent domain as a Trojan horse for regulatory takings," which I disagree with, BTW). Hence my mention of the "merits" versus the procedural issues. But the "b&S" referred to in the Montana judge's ruling refers to signature-gatherers allegedly telling people they were signing three carbon copies of one petition, when they were actually signing different petitions for three separate ballot measures. If this was what you were referring to, then I misunderstood your use of the term.

6) "Nah. Just a blip": The fact we're even talking about this, as are folks in 3 other states right now, indicates that M37 was hardly a "blip." Similarly, the fact that the opponents of regulatory takings reform are so apoplectic at the moment indicates the same thing. Advocates of the nanny state are frightened that their free ride may be over.

7) We're talking past each other on this -- go back to my previous statement. I'm talking principle, not practice, which was clear in my statement.

What I'm talking about goes back to the "bundle of sticks" legal conception of property rights, i.e., rights of use, disposition, right to exclude others, right to peaceful enjoyment, etc... From the outset of this country, those were rights held by individual property owners (not granted by government), and if an individual went too far and violated another's same rights then there was a cause for action. In practice, the rise of the Progressive era legitimized the ability of government to take sticks from that bundle (or break them into pieces), turning the tables around completely. No longer did the individual have inherent rights to use their property in any way that didn't violate the rights of others, but had to instead beg for government permission to do anything.

So in my view, the extremely troubling thing is that the notion of "rights" inherently held by individuals became transformed over the last century into "priviledges" granted by government. That's the only way that statist, socialist schemes could possibly move forward under our constitutional framework. The problem with this is that if you hold the view that the origin of rights/priviledges is derived from government, then you've basically bestowed government with an almost limitless power to own your life, rather than the other way around, which is what it should be in a society that values human dignity.

The Founding Fathers, though not perfect by any means, came from the Lockean natural rights tradition that, in my view, is the foundation of a society in which human rights, dignity, and freedom can flourish. When you slowly throw those rights out the window and give the "community" unlimited power to control the lives of individuals, you've headed down the well-worn path to ruin (see USSR, Maoist China, Mugabe's Zimbabwe, Chavez's Venezuela, etc.). When you have to grovel before a bureaucrat to build an addition onto your house, or get downzoned without compensation to preserve open space desired by the community, that should be a clue that we're on Hayek's "road to serfdom." The biggest global political struggle over the last century was communitarianism vs. individualism, and that's exactly what's at play on a micro scale with these ballot initiatives.

One other thing...do my views make me some sort of anti-environmentalist? Hardly...I'm an avid outdoorsman, and in fact have a masters with a concentration in environmental planning, but I don't believe that I'm entitled to enjoy the nature on someone else's property unless I'm willing to pay for it.

8) "The contention that to continue provision of public goods [goods held in common by everyone and protected by governments], the public should pay the private landowner for not destroying them. That is the contention."

No, you're distorting the argument beyond recognition. The contention is that things like open space are analagous to other public goods like roads, which governments have the power of eminent domain to create, WITH compensation. If government wants to buy open space, fantastic. That's what we do with federal, state, and local parks. Same with PDR programs...another example of the right way to do it. But if you're downzoning rural land to create urban growth boundaries, or "protect" farmland, then you're forcing a minority of private landowners to bear the costs of providing a public benefit. Regulations to prevent air or water pollution are fundamentally different; those are a legitimate use of the police power to prevent harm to others' property or health. These regulations do not provide a public good; they prevent tangible harm and thus should not be compensable. Those are two different things.

And as a matter of principle, I think that it is a fundamentally unjustified use of the police power to regulate in the interest of creating "livable communities" or preventing "urban sprawl," as they involve the use of regulation to "protect the community” from conduct that does not actually violate the rights of any of its individual members. (remember, despite the years of misguided court decisions -Euclid, for one- the fundamentatal and original purpose of the police power was to prevent harm) Neither you nor I have a fundamental right to be free of "sprawl;" we may desire that and promote the use of regulations to achieve that, but then we should be willing to pay for the costs of achieving it.

"Feel free to explain why one should be paid to not destroy my things held in common." First, by definition, private property is not held in common, and the idea that building a legally-permitted house on my property is somehow destroying a public good is ludicrous, unless of course you subscribe to view that anything and everything humans do is bad for the environment and should thus be regulated. Just because I may own property that hasn't been developed yet doesn't give the public the right to demand that it remain undeveloped, unless they want to buy my rights to develop it. Using another example, is a tree on my property a "public good" that I should have to get a permit to cut down, or even worse, be prevented from cutting down via a tree preservation ordinance? Is there some tree shortage I'm not hearing about, because all the rest of the data show that we've got more forest cover in the U.S. now than at any time in the last 100 years.

And second, your examples were completely bogus to start with, make no sense, and aren't relevant to the 933 discussion (in fact, they're a smokescreen). I should not be paid not to punch you in the nose because I don't have that right to start with. I should not be paid to not pollute your water because I don't have that right to start with. If I put in a factory dairy farm that has a tangible impact on your property (i.e., smell, noise, pollution, etc.), then you would have a cause of action to hold me responsible for compensating you for that impact. All of these things are well-established in common law, nuisance-based property rights protections. And that's what the police power was originally intended to cover -- preventing harm to citizens -- but as I said before it has morphed into territory that it was never intended to.

"The government has been directed by the public to protect things held in common [public safety, clean water, clean air]." So that's why I-933 exempts public health and safety regs, building codes, etc.

Look forward to your response, Dano. Hope you're having a good weekend.

Regards,
Len

Thank you Leonard.

Trying to compose a reply, sir. Lots of paper on my desk in the way...

Best,

D

No worries, Dano.

Totally understand! For me, those piles of paper always seem to grow faster than I can shrink them.

Len

Agreeable disagreement.

Leonard,

Finally found a match for the paper on my desk.

Thank you for your measured, reasoned reply. Too often, we see political arguments predicated on boilerplate marginalization phrases. It’s heartening to see that the current climate has not permeated all areas of debate.

1) First, the Initiative seeks redress for changes in regulation that relate to real property yet want claims on private property. Why? Who knows. Anyway,

    A) Plan updates do not require enacting regs that decrease property values; in fact, as you know, zoning is usually pushed by residential property owners to maintain or increase their value [as some urban economists in the NE are asserting]. But there has to be an analysis regardless, which will result in higher costs [which have been estimated in the $8-9 figures] and necessarily higher taxes (or reduced services of course).

    B) Any change in critical area buffer width that arises from greater understanding will affect property values; what is hidden in this issue is that in WA the CAO is driving this boat (as any skim of LTEs will show), yet the concurrent clustering ordinances are never mentioned. It may be that folk want to build a SFR on a 1-ac parcel, but clustering ordinances allow the landowner an out in the diminution of value, even though the residence type may not be what they want. That is: there are already remedies on the books, yet we don’t talk about them.

2) It’s incorrect to assert that just because the pay-or-waive option is mentioned in the Initiative this will be the effect on the ground; this argumentation neglects the very real fact that the initiative is poorly worded. It is very likely that the conclusions of the lawyers that contributed to the latest report from NWCLC (and the analysts in DOE mentioned as well) are correct and waive is not an option.

3) That's like saying that someone should have to prove that there's money in the wallet that a mugger is about to steal from him before the policeman will decide whether it's really a mugging or not.

No.

The proponents want an analysis of the costs of regulation. The proponents have not provided a cost of their regulation. It’s not hard to grasp the irony.

If these studies are estimating that it would cost $X to compensate landowners, then what they're really saying is that gov't regulations are imposing $X of costs on people that the public is not currently seeing or paying for.

No.

What the analyses are basing their conclusion on is that the claims filed in OR are X amount so far, so they used those numbers for expected claims in WA.

There is no correlation between claim amount and imposed $X of costs on people that the public is not currently seeing or paying for, yet that is the argumentation adopted by proponents (as the proponents haven't bothered to perform an analysis, or if they have they aren't sharing for some reason).

In reality, opponents are forced into the awful position of having to admit that the regulatory state imposes so many costs on so many people that simply requiring it to pay for those costs would be just too expensive.

No.

As I mentioned above, the proponents can’t even provide a number of ‘so many people’, so that assertion can’t stand.

In reality, there are costs to a few people. Everyone knows that. The issue in WA is that, apparently, the current remedy is insufficient so there’s a backlash. The initiative, however, is beyond the scope of the scale of the required remedy; that is: even though the proponents haven't bothered to identify the scope of the issue for the taxpayers to consider, it isn't hard to see that the amount of redress isn't $Bs to the few rural landowners bearing the burden of a UGB.

The real, FUDdied-up issue is whether the WA public will be able to see that the costs to a few people shouldn’t burden the entire state with costs that opportunists will make everyone bear. The Governor alleviated some of these burdens last session and seeks to alleviate additional burdens next session.

4) Yes, the past relation of Kelo to 933 by signature gatherers was off base, as was mention of it in the Initiative text, and during the first part of the public debate until proponents were forced to admit the Initiative didn't have anything to do with Kelo. Now proponents don't mention it.

5) It's a catch-all for the wide variety of tactics used. A syndicated reporter up here uses both b&s and three-card-monty tactics in her columns on 933. That is: distract away from the fact of X, Y, Z. Again, proponents can't bang the facts, so they bang the table or use distraction, bait-and-switch, etc.

6) It's all about scale. And the nanny-state thing blew that lack of marginalization phrase thing I mentioned out of the water, didn't it? But it's a good indicator and thanks for using it.

7) the notion of "rights" inherently held by individuals became transformed over the last century into "priviledges" granted by government. That's the only way that statist, socialist schemes could possibly move forward under our constitutional framework.

More FUD phrases.

Your argumentation neglects the fact that the undefined property rights were left undefined such that when society changes, rights change. I'm sorry your ideology doesn't like having individuals having to live by society's rules. The rules, BTW, which were set in precedent by the USC in Mahon that allowed a corporation to cause a private property owner's land to subside.

LU regulations arise after people get burned in order to try to prevent it from happening again; human nature drives this problem, as it is typical for the individual to try to get away with whatever they can get away with. That's how it works. Absent that, you get post facto remedy after the harm has been done and lots of lawyer bills.

That's the weakness in small l argumentation: the lawyer bills. Human nature won't change in the face of passing these laws - the venue will change to the courts, is all.

8) But if you're downzoning rural land to create urban growth boundaries, or "protect" farmland, then you're forcing a minority of private landowners to bear the costs of providing a public benefit.

Yes.

These PPR initiatives want to make everyone pay for a few landowner's dimunition. I'm pretty sure the majority in WA sees thru this scheme.

It's true that we don't address the few landowners who are outside the UGB but want to develop. We _should_ compensate a few landowner's lost value, as they've likely made plans.

But we shouldn't eliminate LU regs because a few can't retire off the sale of their land.

The rest of your argument here purposely neglects the duty of the landowner to have environmental protection. The air going across their property is a common good. The water. The soil. The landowner must protect that common good and shouldn't be paid to not destroy it.

It's been enjoyable, sir.

Best,

D

Dano -- to clarify...

Dano,

I plan on addressing your points one-by-one, as I've had I-933 on the brain lately preparing for a panel discussion yesterday at UW and a few other speaking opportunities. But I'll have to postpone that response to later in the weekend.

However, I would like to clarify my remark about the "nanny state," as I think that you may have inferred a slight in it that I did not intend. When I discussed "advocates of the nanny state" in reference to opponents, I meant that to refer to the organized interest groups lining up against the measure, not to you or other individuals. Upon re-reading it, I was not clear about that, and I wanted to make sure you understood the spirit in which that was intended.

Just as I talked in a previous post about the overarching theme of the collective vs. the individual, those two viewpoints lead to two obvious worldviews. In the latter, the object of interest is in protecting the rights and freedoms of the individual. The assumption is that that, by-and-large, the individual will go out and do things properly. The reason we have regulations is for the occasional bad apple, but for the most part we look at things from a positive viewpoint.

The former worldview, held by most of the groups lined up against I-933 (hence my "nanny state" comment) is a fundamentally negative view. The default presumption is that if government doesn't come in and regulate, then the individual will not make the "right" decisions and will go out and screw things up. Hence, government serves as a de facto parent, micromanaging many aspects of human behavior and action. This has been the direction in U.S. public policy and is well-entrenched in Europe and elsewhere. I see this as a threat to human rights, personal liberties, and freedom. So please understand that when I use the term "nanny state", I'm doing so in an attempt to convey that concept in a nutshell, not hurl a perjorative.

I don't bring this up to start a new conversation thread, as I plan on getting back to your last post, but I wanted to clarify my remark. Sorry that I wasn't more clear about that. It wasn't directed at you, and I hope you didn't take it that way.

Len

Clarity achieved.

I should have read my invite, Leonard. I might have been able to rearrange my schedule to come see that panel discussion. My default these days is 'can't make it'. Maybe I'll read my e-mail more closely up 'til Election Day.

Best,

D

Stalking Horses and Fairness

It is deceptive to claim the initiatives are about eminent domain when their main impact would actually be on zoning. When they asked for my signature in California, they only said that the initiative was about eminent domain and did not even mention "regulatory takings." I expect that, if the initiative wins, there will be a lawsuit for this reason.

I don't see why it is fair to freeze current zoning in place. I happen to live in a neighborhood zoned for a max of three stories. In another city with less strict zoning, a similar neighborhood might be zoned for five stories. If that neighborhood is downzoned in the future, the homeowners would be compensated. Because my neighborhood was downzoned in the past, I am not compensated. How is that fair?

Zoning is not meant to provide public benefits, like parks and roads. It is meant to prevent development that damages the public. Originally, it was aimed at regulating the location of factories, because a factory built in a residential neighborhood lowers the value of adjacent housing. Now it is often aimed at controlling development that will aggravate traffic congestion. In the future, it should be aimed at controlling development that will aggravate global warming.

There is no reason for me to pay a person because a law prevents that person from harming me.

I hear that, in California, the law would apply not only to land use but to any regulation that lowers property values - such as regulations that lower an industry's profits by requiring that industry to reduce greenhouse gas emissions. Of course, land-use zoning also affects greenhouse gas emissions.

Paying a business to compensate it because its profits are reduced by laws restricting greenhouse gas emissions is like paying a mugger to compensate him because his income is reduced by a law against assault.

Charles Siegel

The fairness in WA goes beyond real property.

I hear that, in California, the law would apply not only to land use but to any regulation that lowers property values

Even more incredible, in WA, the PPR initiative is so poorly written that it may be ruled that extends beyond real property to private property. Not a typo. Over 2 dozen cities so far in WA have passed resolutions opposing this initiative.

At any rate, I'm sure the lawyers are salivating at all the litigation coming down the pike in the west if these initiatives pass.

Best,

D

CA Initiative Also Goes Beyond Real Property

In CA, the initiative also defines property as homes, land, cars, and the ownership of businesses (apart from the land and buildings of the businesses), and it applies to land use, housing, consumer, environmental, and workplace laws and regulations.

In other words, if we discover that product is killing people, and we pass a consumer protection law to save lives, we would have to compensate the business for the profits it loses by no longer being able to kill those people.

Charles Siegel

Charles, Please Elaborate...

Charles,

Can you point me to the specific section in Prop 90 that "defines property as homes, land, cars, and the ownership of businesses"? The answer is no, because it's not in there. Clearly, if you read the measure, the intent of Prop 90 is to address the regulation of real property, not "personal property."

Len

Len, More Info Please

Len:
I got that from a newspaper article, which may have been wrong.
This article also said the initiative applied to consumer protection and environmental laws that reduced the value of property, as well as to zoning laws. Maybe you can tell me whether that is true.

Charles

Charles, my reply

The problem with newspaper accounts, on this or most policy issues, is the tendency to go for "style" over "substance," in which political arguments often trump deep discussion of the issues at hand. I don't mean that in a critical way, it's just the nature of most journalism to be very general in scope.

I'm not a lawyer, but it's clear to me that the measure is aimed at land regulation, whether through zoning or environmental laws that impact land and are not focused directly on public health and safety. All of the examples of regulation in the measure are clearly focused in that direction. That doesn't mean that a lawyer wouldn't try to make an argument to apply it to consumer protection, but I'd wager that a reasonable judge would interpret Prop 90 in the spirit with which it's clearly intended.

FYI, there's a discussion on Prop 90 going on in another thread with regard to a paper I wrote on it. That thread is here: http://www.planetizen.com/node/21621

Len

I-933 - Trojan Horse for PPR extremists

Looks like the extreme property rightists are trying to do away with th' gummint and th' regalayshun.

There is yet another analysis showing the exorbitant costs of I-933. Washingtonians, surely you have spread the word. For the residents of other states, what follows is what the PPR movement is trying to do to us, and what some who put up arguments here are trying to hide:

quoth:

2. Applicability of Initiative 933

Initiative 933 applies to sub-parcels within land parcels. For example, some private lands border on rivers. Landowners may build a house on their land, while preserving a buffer zone next to the river. A landowner may have no intention or desire to build on the land immediately next to the river. But under Initiative 933, this same landowner would be able to request and receive public compensation to not develop this buffer zone, regardless of his intention not to develop it in the first place! Plus, the land owner is given a huge incentive to pursue compensation, since Initiative 933 requires governments to pay for all the costs of litigation and analysis that are triggered by this pay-or-waive request, even including the attorney costs for the private party that requests compensation, and even if the request is found without merit.

Initiative 933 applies not only to real property (land and buildings) in sensitive environmental areas, but also to real property within urban city limits. Therefore, if a city has established new zoning regulations since 1996, these regulations, as they impose restrictions on development (such as height restrictions, single family zoning, adult entertainment, and gambling) can lead to individual property owners demanding waivers from these regulations or receiving windfall compensation from the local government for the alleged decrease in fair market value caused by these regulations.

Initiative 933 applies not only to real property, but also to all private property, including automobiles, boats, recreational vehicles, stocks, bonds and money. Let’s say you have a cigarette boat that can go sixty miles per hour, and a county enacts a noise level restriction that prevents you from achieving this maximum speed. You have been thereby disallowed from realizing the whole value of your boat. Under Initiative 933 you could either get this restriction waived or receive compensation from the public for the perceived reduction in the value of this boat. Similarly, if a county enacts a new speed limit in one area to enhance pedestrian and automobile safety, it is also imposing on the value of an automobile, as that automobile could go much faster than the speed limit. Under Initiative 933, an automobile driver could sue for either payment for the reduction in the use value of his car, or have the speed limit waived. In both cases the interest of one individual overrides the interest of all other individuals and the public at large.

6. How much would Initiative 933 cost Washington taxpayers?

The financial costs of Measure 37 enable us to estimate the minimum feasible costs of I-933. Since December 2004, 2970 claims for waivers or payment have been filed under Measure 37 with the state of Oregon, with a value of $4 billion. These claimants account for eight hundredths of one percent of Oregon’s population. The average claim size is $1.6 million.

This amounts to a transfer of value of $1,090 from each and every citizen of Oregon, through the waiver system of Measure 37, to this small number of corporations and individuals. Because Initiative 933 is much more open-ended than Measure 37, we could assume a much greater transfer of value from the citizens to claimants for waivers or compensation.

Best,

D

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