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CRC Op-eds and Letters to the Editor

Northwest losing its land and environmental rights

Seattle Post-Intelligencer
Thursday, January 11, 2001
Douglas T. Kendall

A recent decision by the Washington Supreme Court and Oregon's Ballot Measure 7 demonstrate that property rights radicalism is alive and well. These developments pose a grave threat to reasonable efforts to combat sprawl, regulate unwanted land uses and protect the environment and communities of the Pacific Northwest.

The problem stems from an extreme interpretation of the "takings" clause of the U.S. Constitution, which prevents the government from expropriating your property without paying for it. Although the framers of that document intended the Clause to apply only to actual expropriations (for instance, where the government takes your land to build a road), the U.S. Supreme Court has expanded the Clause to cover certain “regulatory takings.”

To date, however, the Supreme Court has been careful to find a taking only where a regulation is so severe that it has nearly the same practical effect as an actual expropriation. This interpretation respects the intent of the framers while carefully balancing the rights of property owners with the needs of the community.

It is also fair and practical. State and local land-use planning is a cornerstone of our quality of life. It keeps noisy industrial plants, hog farms and adult bookstores a suitable distance from our homes, schools and churches. It preserves prime farmland, open space and natural resources for future generations. Although such land-use laws, by their very nature, limit property usage, they do so in order to protect and enhance property values. That is why every state in America has embraced planning and zoning. Oregon and Washington have been national pioneers in developing sensible approaches to managing growth and rejecting Los Angeles-style sprawl.

The Washington court decision and the Oregon ballot measure, however, throw out this carefully crafted balance. On Nov. 13, the Washington Supreme Court handed down a ruling that threatens to impose a similarly draconian takings standard by judicial fiat. The court, in Manufactured Housing Communities of Washington v. State of Washington, suggests that the “unrestricted right of use” is a fundamental property right that cannot be taken without government compensation. As Justice Phil Talmadge says in dissent, the opinion “brings into question the constitutional validity of all Washington zoning laws, the Growth Management Act, the Shorelines Management Act, the State Environmental Policy Act and every other statute that in any way derogates the so-called ‘unrestricted right of use’ of property.”

Meanwhile, Oregon's Ballot Measure 7 enshrines in their constitution the most draconian “takings” standard imaginable – “any” reduction in value must be compensated and only “historically and commonly recognized nuisances” are excepted. The result will be full employment for lawyers and an imponderable array of claims for compensation. Already landowners are seeking compensation for regulations that limit the number of cats in a private residence, prohibit smoking at truck stops and restrict mining in fragile areas.

These two developments place a cloud over land-use and environmental protections in the Pacific Northwest. Local governments in Oregon are scrambling to determine how to avoid the bankruptcy that a flood of claims for compensation could quickly bring.

In Washington, government attorneys are scratching their heads trying to predict whether the court will extend the reasoning of Manufactured Housing in future cases.

The news is not all bad. The Oregon ballot measure was approved only because of a ballot title that was more misleading than Palm Beach’s butterfly ballot. As a result, an Oregon court enjoined enforcement of the measure, ruling that the far-reaching impacts of the measure were not fairly explained to voters. Even if the measure is ultimately upheld, its overreaching will almost certainly hasten its demise. Oregon taxpayers will quickly tire of having their pockets picked every time a mining company wants to mine, a trucker wants a smoke or a cat lady wants another cat.

It is also too early to predict the trajectory of the Washington ruling, since the court may not follow this path of judicial activism in addressing challenges to other land-use protections. The only thing we know for sure is that Oregon and Washington have reached a critical fork in the road. Society cannot simultaneously combat sprawl, protect the environment and enshrine absolute property rights.

We can only hope that judges on the Washington Supreme Court and the voters in Oregon will ultimately choose to preserve the necessary balance between the rights of property owners and the rights of our communities.

Douglas T. Kendall is founder and executive director of the Community Rights Counsel, a non-profit law firm in Washington, D.C., that helps state and local governments defend against takings lawsuits.

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