Statutorily speaking

Washington effort follows Oregon’s lead with property rights initiative

Steve Morasch
Schwabe, Williamson & Wyatt

On Feb. 21, the Oregon Supreme Court issued a sweeping decision upholding the constitutionality of Oregon’s famed property rights initiative, Measure 37. Just under two years earlier, in 2004, Oregon voters made news by approving this measure by more than 60 percent.

In November 2000, a similar effort, Measure 7, was approved by the Oregon voters. However, the Oregon Supreme Court ultimately invalidated it on the grounds that the measure made two changes to the Oregon Constitution that were not “closely related.”

So, what made Measure 37 stick? Unlike Measure 7, it amended the state statutes, rather than amending the state constitution.

A similar initiative effort is afoot in Washington State.

Earlier this year, the Washington Farm Bureau filed a property fairness initiative known as Initiative 933 with the Washington Secretary of State’s office.

Much like Oregon’s effort, Initiative 933 does not aim to amend the Washington State Constitution, but instead intends to amend the state’s statutes. The initiative provides for compensation to private property owners for government regulation of property that “damages the use or value” of the property. Under the initiative, an agency that chooses not to take action that will damage the use or value of private property is not liable for paying the compensation.

This is somewhat similar to Measure 37, which expressly provides that local governments and state agencies may waive, modify or not apply regulations in lieu of paying compensation.

Yet, while there are similarities, there are a few striking differences between the different efforts.

Measure 37 pertains to regulations that were adopted after the property was acquired, but Initiative 933 applies to regulations adopted after Jan. 1, 1996. As a result, the Oregon measure provides more relief to those who have owned their property for a long period of time.

The Washington Farm Bureau’s Initiative 933 also contains a fairly detailed set of procedural guidelines that must be followed by state agencies and local governments prior to adopting regulations which may damage the use or value of private property. These new guidelines would force agencies and local governments to examine in detail the need for proposed regulations, the extent to which they impact private property, and whether the goals of the proposed regulations could be achieved by means that are less restrictive on private property. Measure 37 does not contain these types of guidelines.

Even if the proposed Washington initiative doesn’t pass, governmental entities in Washington will likely pay closer attention to the impacts of regulatory decisions on private property as a result of the public awareness brought about by the initiative process. The Washington Farm Bureau lists a number of examples of regulations that the organization claims are excessive. Several of these examples involve the power of eminent domain. Other examples include: restrictions on tree topping, requirements for large buffers along waterways, and a requirement to leave 65 percent of property in native vegetation.

Perhaps Washington is watching Oregon, which has a longer history of excessive regulation. Many property owners in Oregon cannot get approval for even a single dwelling on farm and forest land due to state law restrictions that prohibit or severely restrict people from living on this type of property.

So, what’s next for Washington?

The Washington Farm Bureau will need to gather about 235,000 signatures by early July of this year, to place their initiative on the ballot in November. There has already been at least one court challenge filed to the ballot title. If the initiative passes, we can expect that further challenges will be filed.

Given the Oregon Supreme Court’s decisive ruling in the Measure 37 case, it seems unlikely that a similar challenge to Initiative 933 would be successful.

Steve Morasch is a shareholder with the Vancouver office of Schwabe, Williamson & Wyatt and specializes in real estate land use issues. He can be reached at smorasch@schwabe.com.

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