ELECTIONS 2006
“Property Rights” Measures Rejected In Washington and Other States
But Arizonans pass a regulatory takings measure.— UPDATED —
By Dan Richardson, 11-08-06
The West-wide property rights campaign to force governments to back off from limiting development on private property came to a showdown Tuesday, and supporters won big — in Arizona.
The regulatory takings campaign stalled in every other state, though, being either stricken by courts or rejected by voters in five states. Voters in Washington, California and Idaho said no to the idea in balloting Tuesday.
Regulatory takings — sometimes called pay-or-waive — is a simple notion at its heart, that governments should pay when regulations devalue private property. Devalue, as in limit use. Use, as in building more houses.
In the campaign around the West, regulatory takings was tarted up with emotional arguments against eminent domain, funded by wealthy activists, and hawked with the fervor of true believers. The supporters, from the Ayn Rand school of libertarian thought, had an impressively bold idea: Strike at the heart of government’s ability to tell people what to do by making it waive its property regulations. The result would have — could be? — a fundamental reshaping of the American scene, starting in the West, with its penchent for property rights and wide-open ballot initiative systems.
In other words, reconfigure American political thought by taking a populist-sounding idea straight to the voters.
The voters, it turns out, mostly said no thanks.
Why? Probably because the pay-or-waive people waged their political campaign as a nationwide conspiracy, a labrynth of front groups and out-of-state donationsthat more-or-less sprang from a single New York bagman. Proponents of regulatory takings have been famously organized and bankrolled by New Yorker Howie Rich, a developer and libertarian activist. It was Rich’s groups like Americans for Limited Government
that spent millions in pushing pay-or-waive initiatives around the Western states.
TWO IDEAS, ONE A WINNER, ONE A LOSER
There were actually two broad property rights currents this year resulting in widespread balloting on Tuesday. Regulatory takings, as espoused by the Richesque groups, and eminent domain reform.
Eminent domain reform is the popular, and reasonable, movement to curb government power to condemn private property under eminent domain, especially if the condemnation were on behalf of a developer — a direct reaction to the U.S. Supreme Court’s now-infamous Kelo v. City of New London decision in 2005.
Eminent domain reform bills were up for a vote in seven states besides Oregon (Measure 39) — Florida, Georgia, Michigan, Nevada, New Hampshire, North Dakota and South Carolina. All eight measures passed Tuesday, most by healthy margins; Oregon’s Measure 39 scored 67 percent of the popular vote — 6 points more Measure 37 won two years ago.
Regulatory takings first gained traction in Oregon with the 2004 victory of Measure 37. Supporters of regulatory takings hoped to use that momentum this year. They painted pictures of farmers being driven to desperation by urbanesque environmental laws; and, this may be true here and there. But the overwhelming majority of pay-or-waive complaints are from people and companies who are being limited from developing their land. It is, essentially, the unshackling of developers, big and small.
Supporters of regulatory takings often liken the idea of regulations to eminent domain, as if limiting developmental use of property were the same as taking it physically away. A universal mark of this year’s regulatory takings campaign has been the use of eminent domain language, either to confuse people (as in Washington state’s campaign) or to mask takings behind eminent domain (as in California).
The use of the two-ideas-in-one theme has been so prominent that both supporters and opponents have called it the same thing, “Kelo-plus.” As in, pushing back against the Kelo decision, plus this other... little ... thing ... called regulatory takings.
Courts in two states — Montana and Nevada — struck down regulatory takings initiatives for (in Montana’s case) widespread fraudulent petition-wrangling and (in Nevada’s case) for masking two ballot questions in one measure. A parallel initiative movement — also funded by Rich’s groups — to placed tight spending limits on state governments (aka, TABOR)failed even more spectacularly: none of the half-dozen states which had the question on the ballot, including Oregon, passed it.
One commentator, reviewing these losses, wrote, “So why did they fail? These were faux-populist measures. Rather than arising from a grassroots movement and popular demand for these policy changes, the initiatives owe much to out-of-state supporters.”
Ultimately, voters had the opportunity to pass Rich’s regulatory takings bills in four states Tuesday; three of the four rejected it.
WASHINGTON
Washington state voters soundly rejected the takings initiative in that state, Initiative 933, on a 58-42 percent vote.
As might be expected, the state’s voters were divided in great part between rural and urban areas; but the popularity of the measure was evident not just in places like Klickitat and Skamania Counties (nearly 60 percent of voters in both), but also won over voters throughout the rapidly growing Yakima Valley and the entire Vancouver metro area — though it was exceptionally tight there. According to Tuesday morning updated results, Clark County voters were dead-even split on the measure, approving it by four votes, 38,522 supporting I-933, and 38,518 opposed.
Opposing the takings bid were voters in the northern I-5 corridor (Olympia, Tacoma, Seattle, Bellevue) and the central-eastern counties around Spokane and Walla Walla. When you have 100,000 excess "no" votes in King County alone, that weighs heavily against voters from Goldendale and White Salmon.
I-933 would have rolled land regulations back to 1996, and effectively kept them there, based in large part on excesses cited by urban planners. Supporters complained mightily about the many hurdles enacted by Seattle-area bureaucrats in King County, and raised the spectre of governments aggressively condemning private property — though I-933 was entirely about regulatory takings and had no eminent domain reform provisions.
The pro-933 campaign included some hard-nosed, common sensical-sounding voices (“pay up or back off”) and some legit farmer support (they staged a tractorcade in Seattle).
There was also some dubious campaign rhetoric, like the eminent domain scare-tactics, and ad quips like “Written for farmers, by farmers,” which is a good deal more convincing than strict accuracy. (Perhaps, “Dreamt up by some wingnut Libertarians back in New York City,”?)
But Washingtonians are close neighbors of Oregon, and have seen the hash made by Measure 37: The ongoing litigation, the 85 percent of claims made by developers, the sheer volume of thousands of claims.
And, whereas many states’ oposition efforts were low-key or uninspired, Washington’s No On 933 committee raised as much money as the measure’s supporters, cobbled together a powerful urban-liberal coalition, and energized early, aggressive counter-efforts. Some of their claims were as dubious as the proponents’ — like saying that the measure would have cost the state billions, when in fact, governments faced with pay-or-waive won’t pay up. Paying up isn’t the point, it’s waiving land-use restrictions on development that’s the entire sum and substance of the regulatory takings campaign.
Still, the opponents had valid points, and an effective strategy is saying that I-933 left too many unanswered questions. After all, how to support something when there’s a question like “Will irresponsible developers be required to compensate me for my home's decreased property value? “ hanging unanswered? Or, closer to home, whether the law would overturn the restrictions in the Columbia Gorge National Scenic Area, as Measure 37 claimants hope on their side of the river?
CALIFORNIA
California’s Proposition 90, which pressed the eminent domain issue full-force while slipping in regulatory takings language, failed by a slim margin Tuesday.
With 52.5 percent of California voters casting no votes, Prop was a close-run thing. Most counties were within a few points either way. A few rural counties and conservative enclaves (Shasta, Orange) heavily favored the bill, but they were out-weighed by opposition from heavily populated counties (San Francisco, Santa Cruz).
This marks the second time this year that Californians have rejected the pay-or-waive idea; in June, voters in Napa County rejected a local regulatory takings law. (That same month, Orange County voters approved an eminent domain law that did not including regulatory takings.)
The pro-Prop 90 forces (calling themselves the “Protect Our Homes” committee) campaigned mightily with the eminent domain emotionalism (“In California, homes, small businesses, farms and even churches have been targeted for seizure.”). That argument captured support from across the political spectrum. But opposition coalesced to fight Prop 90’s real purpose — developer protection under the theory of regulatory takings.
Said the No on 90 group, “California needs to reform eminent domain but Prop 90 is a radical plan that goes too far and would cost taxpayers billions of dollars each year.”
Proponents argued that the proposed law was fundamentally different than Oregon’s Measure 37 because while M-37 is retroactive, Prop 90 would have only affected new regulations. The political momentum probably swung against them just a couple weeks prior to the election, when Gov. Arnold Schwarzenegger accounced his opposition to Prop 90.
IDAHO
Idahoans crushed the pay-or-waive measure in their state. Proposition 2 lost by 3-to-1, with 74 percent of the voters saying no.
There was good reason. Proposition 2 is more than an Idaho version of Measure 37. The measure said that any property owner whose ability to use, sell or divide land was impacted by law, "shall be entitled to just compensation, and shall not be required to first submit a land use application to remove, modify, vary, or otherwise alter the application of the land use law.”
The heck with pay-or-waive: Proposition 2 was simply, pay.
In some ways, though, it’s the most honest, or perhaps nakedly obvious, statement of the takings idea: People should have an unfettered use of their property. Of course, this does little to assuage neighbors of would-be developers, miners and other high-impact property owners.
According to the Secretary of State’s Office, only one county in Idaho, Canyon County, passed Proposition 2; and by a 78 margin. Impressive! Maybe too impressive? I mean, did all of Idaho vote no by roughly 3-to-1, except Canyon County, which went yes by 3-to-1? Really? I have sent a query on that to Idaho officials, and will report back with an answer.
Update, 1:15 p.m.: Yep, I was right. All of Idaho rejected Proposition 2, even the good folks in Canyon County. An elections official responded to my query, writing "the result reported was wrong... There was a typo that left a zero out of the "NO" vote. Instead of 3,283 is [sic] should be 30,283. We have corrected that on our election night reporting." Ah, snail's on the thorn, lark's on the wing, the zeros are all counted, all's right...
ARIZONA
It was Proposition 207 which garnered this year’s only regulatory takings advance — and by a solid majority, voters approving it by 65 percent to 35.
Like other property rights campaigns, Arizona’s Home Owner Protection Effort (HOPE) for Prop 207 employed a mix of humorous, emotional and half-true ads to make its case. The case it made, however, was almost entirely for restricting government’s use of eminent domain — HOPE buried talk of regulatory takings that Prop 207 included as a central plank of the measure.
In one radio ad, a man is heard standing in front of a developer’s bull-dozer as it tears onto his property. The driver tells him, “Sir, it’s not your land anymore, remember?...We’re going to build a strip mall.” Then, as the wrecking crew moves in, the driver tells the property owner, “You may want to retrieve your cat, sir.”
See? Funny! Effective. And true; well, if you consider a half-truth true.
“Stop the government from using eminent domain to take your private property and sell it to a developer,” said other HOPE radio ads. One noted that 30 states had recently passed laws forbidding governments from doing so, and urged Arizonans to follow suit. What HOPE didn’t say was that those other 30 states didn’t include regulatory takings language, but dealt only with eminent domain reform.
With HOPE’s victory, there won’t be any projects where governments in Arizona condemn someone’s house or pizza parlor or whatever, just to sell to an ambitious developer. Of course, there will be little other limit on development — Prop 207 says all new land regulation after Tuesday is subject to the pay-or-waive, should that regulation reduce a person’s rights to use, divide, sell or possess property. Subdivisions galore!
The effect of Prop 207, then, will be twofold: To limit government redevelopment schemes and other unnecessary uses of eminent domain, and to freeze Arizona’s already-weak land-use laws in place.
Doesn’t sound too bad like that, does it? Arizonans didn’t think so.
Of course, not all were sold on the idea. The Arizona Republic noted how out-of-state interests had funneled nearly a million dollars into the Prop 207 campaign, calling Howie Rich “the man behind the curtain.” The measure, the paper wrote, is a ”Yellow brick road to disaster”.
Arizonans, apparently, think it leads to Oz.
Like this story? Get more! Sign up for our free newsletters.
Comments