Tuesday, October 24, 2006

I-933 Debate - What Did You Think?

I'd like to say thank you to Steve Hammond and Tim Trohimovich for taking the time to help us wrestle with I-933 today, to Greenlaw for laying so much of the groundwork, and to all the people that came to the event. It was fantastic!

Once again, the complete text of the initiative is here.

Please let us know what you thought, and what you'd like to see to make our events better in the future. Thanks again!


Cato said...

I thought it was an interesting debate for a couple of reasons:

1. The accents--I could have figured out which man represented which side of the debate just by hearing their voices. The pro-933 speaker spoke like a rural Washingtonian, while the anti-933 speaker spoke like an urbanite. In that difference I imagine they are both fairly represenatative of their respective sides of the debate.

2. The asymmetricality of the debate: While both sides gave some anecdotes and some statistics, the pro-933 speaker spoke mostly in broad moral and emotional terms, emphasizing both fairness and the frustration that landowners face when they are told by government that they can't develop their land as they see fit. The anti-933 speaker spoke mostly about technical issues and didn't cover the moral ground hardly at all--his strongest point was a pragmatic one: He believes 933 to be unnaffordable, unadministratable and badly written from a technical standpoint.

Because of the assymetry, the two speakers talked past each other a lot. I agree with the central points of both, and I'm still very torn on the matter.

PubliusRex said...

933 costs too much? It's such a totally dishonest argument. The costs don't change with 933, the paying parties do.

Orrin Johnson said...

I agree - and I thought Hammond did a really good job pointing out the dishonesty of the "cost" estimates, too.

Cato said...

Publius, I understand and agree with your point. However, right now the cost is being paid by private actors a little bit at a time. That's not fair, but it's happening, and it's stable. If 933 passes, 10 years worth of payment will have to be made pretty much all at once (or all of the regulations have to be waived) and that will either bankrupt local governments, require huge and immediate tax increases or both. If the regulations are waived there might be far reaching effects, especially reliance type effects for people who bought there land subject to their neighbors' restrictions. I agree that the 933 system is more fair, but it IS going to be disruptive and expensive. I think it's probably worth it, but I'm not going to play down the consequences.

PubliusRex said...

Cato -

So, but for the 10 year backlog, you favor 933?

Cato said...


I may still favor it. I would be 100% for it without the retroactivity.

derek said...

If I'm not mistaken this initiative for all intents and purposes* ends the states ability to zone property for specific uses (or to ban certain uses). Is that right?

*This assumes that the government is not going to pay people to zone thier land and so will just refuse to do so.

Orrin Johnson said...

It is not right. Zoning is not affected - Hammond made that point clearly, and his opponent did not disagree. Again, read the actual text of the initiative, linked in the original post.

derek said...

I didn't see anywhere in the text of the initiative where zoning laws were excluded. In fact, it specifically includes regulations on how individuals can use thier land.

Is there a significant distinction between zoning laws and "land use" regulations?

In either event, zoning seems to be a government limitation on how my property can be used. For example, I couldn't build an apartment building on my land, or a shopping center because it is zoned single family residential. as it is a limitation, it appears to me on my reading that the intiative would apply unless there was an exclusion for zoning, which I couldn't find.

Orrin Johnson said...

It's a state Constitutional issue. It uses the state Constitutional term "damage" as one of art that applies to eminent domain cases - one which the caselaw is clear does NOT include zoning regulations.

So yes - there is in fact an essential difference between land use regulations and zoning laws.

derek said...

I don't know that I agree with that. Can you point to the text that says that? There is nothing in the text of the new statutes that indicate that it is referring to damage in a the context of eminent domain.

If it only prevented damage as defined as damage under state eminent domain jurisprudence, there would be no need for a new statute. It does exempt any restrictions that "apply equally to all property subject to the agency's jurisdiction." For example, it limits the use of my property for adult entertainment and sex offenders.

So can the state zone property to remain undeveloped or would they have to pay for that?

Orrin Johnson said...

There is currently no clear definition of what "damage" is, only that it does NOT include zoning. I-933 is necessary because that lack of definition has allowed state governments (King County especially) to overstep their bounds and render land economically useless because urban hippies want to drive out and see the blackberries once a year.

I-933 defines the Constitutional term "damage." It would not have used that term otherwise, and unless the Supreme Court gets even more lawless, well established cannons of construction dictate that they apply the term of art. In some ways, it expands that definition to diminish governmental power over private property, which makes me happy. It does not, however, restrict zoning.

derek said...


Where in the initiative does it say that zoning is not effected? This is the third time I've asked you to point out the language...

It certainly doesn't say that it is an amendment to the constitution, nor does it say that it is interpreting the eminent domain clause of the state constitution.

It is merely an RCW that outlaws restrictions on property dressed up as an eminent domain protection. It and similar intiatives have been sponsored and funded by a right wing zealot in a dozen states.

PubliusRex said...

Since when does protecting property rights vs. collectivist usurpation constitute right wing zealotry?

The founding fathers were very concerned with such interests. I'd hardly call them right wing zealots. Indeed, I'd call them liberals....an indication perhaps of how far what we now refer to as liberalism has strayed from its Enlightenment meaning.

Alicia said...

Derek and Orrin:

Unfortunately, I was not present for the debate, but I did read the text, blog, and comments, and would like to contribute to the conversation regarding whether the measure "ends the states ability to zone property for specific uses."

I-933 is meant to affect any kind government regulation on land, including zoning. Municipalities and counties are "agencies" who make rules, regulations, and ordinances that affect the land within their boundaries, regardless of whether those rules, regulations, and ordinances address land use or zoning laws. Therefore, this measure definitively affects zoning.

However, zoning regulations have always been subject to a takings clause and substantive due process analysis because we have determined (through our Constitution) that the right to own property is a fundamental right. The government can always go too far with zoning and/or land regulations and eliminate the right of the owner to make some economically viable use of the property. A zoning regulation can be found to be regulatory taking if the right criteria is met.

The problem is that the analysis from the Supreme Court, beginning with the seminal case of Lucas v. South Carolina Coastal Coun., U.S. , 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992), requires a finding of either a physical invasion into the land by the regulation or a total destruction of all economic viability in order to find a regulatory taking. The regulations King County has enacted do not physically invade the land nor do they "totally destroy" all economic viability of the landowners. Landowners can still develop 30% of their land. However, some of us are just not okay with that justification.

I-933 makes it easier to find a regulatory taking by creating a new, lower criteria, "damage." The criteria is laid out in the proposed statute. Presumably, under this law, a court would no longer have to find that a physical invasion or total destruction has occurred to find regulatory taking. Instead, if the regulation falls into the "damage" criteria listed, there is a taking, and the landowner is compensated. On the flip side, government agencies are not prevented from enacting zoning law (or any regulation for that matter) that does not amount to "damage."

The core of the debate is to what extent government has a right to regulate private property for the benefit of the public and to the determinent of the landowner. Everyone can agree (including the courts) that government has a right to plan its cities through zoning, but the question is at what point that control goes too far.

There are many people in Washington state who believe that the environment, "indigenous" plants, salmon, and natural water flow trump private property rights. I am not one of them, which is why I plan to move to Nevada, where the taking of property is typically met with a shotgun.

derek said...

"protecting property rights vs. collectivist usurpation" Nice framing Publius.

If the act is truly about protecting property rights, why does it specifically allow the use of land as strip clubs to be regulated? Freedom from government intervention in the use of my property should mean I can be free to use my property as I want.

It's a good question though where the "social contract" theory really collides with my individual liberties bent. On one hand, I agree that theoretically the gov't shouldn't limit what people do with thier property.

However, you have a real prisoners dilemma with that theory. If no one builds a pig farm everyone has land the same value. If I can get money for building a pig farm, I should do that. But if I do, my neighbors property will be worth less money. If my neighbor builds a pig farm to maximize his profits, my land is worth less money.

Zoning/land use laws are one way that society agrees that we will limit our activities so that our neighbor will as well. It avoids the prisoners dilemma problem in that way.

Now if I-933 was a provision that tied freedom to responsibility, then I might support it. It doesn't however.

derek said...

Thank you Alicia, it's good to know that I wasn't crazy when I didn't see an exemption for zoning.

The way I read the statute, almost any attempt at zoning can lower the value of the property. my 1000 sq foot lot is worth alot more with a 10 unit apartment than with a single family housing unit for example.

So why does this statute not require reimbursement from the state for any zoning implemented (except of course for strip clubs because we can keep your land from being used naughtily! because freedom really means "freedom" in Amurica!)

Orrin Johnson said...

OK - I spoke too broadly and was wrong - it will impact zoning. I either misheard the speaker or he was flat wrong, and I didn't double check. Admitted.

But what it most assuredly will NOT do is what you claim it will, Derek, which is to "end[] the states ability to zone property for specific uses". I've spent some time doing some more research tonight, and excess zoning regs have always been subject to a regulatory takings analysis. The problem is that the courts have refused to give any force to that analysis, and the courts have been trending farther and farther away from extending protection or compensation at all. Kelo didn't help.

If the zoning damages actual value (not speculative value, as in your hypo), the state will have to pay for it. It's good. It will make them think twice. It stops the trend towards the idea that property owners simply hold their land in trust for the state, which is the current attitude of the King County Counsel and other collectivists. Publius' comments were dead on.

Read Orion Corp. v. State, 109 Wn.2d 621 (1987). It gives a great background into Washington's takings jurisprudence, which now seems to be fully ignored.

I-933 is an attempt (a bit ham fisted, I will admit) to address that abrogation of the courts' responsibilities. And despite its shortcomings, the state has simply gone too far with its takings power. I'm fine with it as a check on that, because I think private property owners in King County can better manage their land than Ron Simms.

(As for strip clubs, I think it's fully appropriate to make distinctions like that based on societal standards. Don't get me wrong, I'm not adverse to having a few bachelor party venues around, but I don't want the courts imposing community values better left to the people or their legislature, either. That impacts freedom far less than the overarching land grabs by urban bereaucrats. I just find it interesting that you seem to put owning a strip club on the same level as not being allowed to develop 3+ acres of your land.)

PubliusRex said...

Look...if you want to frame concern over property rights as a right wing issue, I can reframe...

It seems that nuisance law could solve alot of the problems you're referring to....and the market could solve the others. I like the Coase theory. Assign the property right, let the market handle the rest - especially where commercial players are involved.

More generally though...

I generally don't have a problem with zoning. I acknowledge the transcendent police power. However, I think local gov'ts in Western Washington are abusing that power and I'm partial to measures, even imperfect ones, that would attack that problem.

Moreover, my understanding of 933 is that it wouldn't block the police power. It would merely force society to pay for the benefits it receives, instead of dumping the costs on individual landowners.

PugetHouse said...

Like Alicia, I was not able to attend the physical debate, but would like to contribute some of my research to the discussion.

Derek's original post is dead-on. Sorry Publius and Orrin,
Oregon's experience with Measure 37 proves derek's reasoning to be true. Quoted from the Seattle Times Editorial:

Most important financially is the so-called "pay or waive" provision in Oregon's initiative, which may not apply in Washington. An Oregon county facing a claim for damages has a choice: 1) pay the claimant the loss of value caused by the land-use action, or 2) waive the law and allow the original use. In every completed case thus far in Oregon, local governments have waived the rules rather than pay; the claims amount to more than $5 billion

Zoning laws would be valid only at the forebearance of developers.

Cato made a great point about the weird retroactivity. Cato later characterizes I-933 as "more fair" than the status quo. I-933, however, is not your friend if you cling to notions of fairness. I-933 is a Trojan Horse that plays on such idealism. Ithe guise of defending farmers, it gives developers leverage to bypass agricultural zoning. Of course, it's only fair to compensate these speculators for their legal fees, right?

Orrin Johnson said...

I-933 is clearly far from perfect. But it's better than the Tyranny of Regulation currently underway in King County. Under the current state of the law, there is simply no protection for private property from any kind of regulation Ron Simms wants to push through in midnight sessions. None.

It looks like it's moot anyway, since the measure's not likely to pass. But I hope the drafters take the lessons learned from the defeat, craft a better piece of legeslation, and work to actually protect private property. Not that I'm optimistic. Alicia's right - it's why we're moving to Nevada where individual liberties (which include property rights) are still respected.