Wednesday, January 17, 2007
Can innovative methods of compensation –- such as transferable development rights –- serve to assuage the concerns of property advocates while permitting government to regulate for the public interest? The state of Washington is studying this year how TDRs might be used more effectively to preserve nature and farmland in the Evergreen State while at the same time give some form of compensation to regulated property owners.
Last year Washington voted down a property rights initiative, I-933, that would have required more automatic monetary compensation for restrictions on land use, akin to Oregon’s successful Measure 37 in 2004. But Washington Governor Christine Gregoire, perhaps recognizing that the property rights movement is not going away, has put her support behind studies of how TDRs can be used more fluidly to give regulated property owners in designated “sending” areas the right to sell their unusable development interests to property owners in designated “receiving” areas where more development is more acceptable –- theoretically making everybody happier, including the taxpayer.
Chronic problems with TDR programs include: (1) finding enough “receiving” areas in which there is local support for more development than would otherwise be allowed; and (2) the Scalia/property rights argument that any form of partial compensation, such as TDRs, does not meet the full compensation right of property owners who can assert successfully that the regulation has legally “taken” their property.