Friday, July 7, 2006

Washington State Takings Ballot Initiative

Over at CoOp, Eduardo Penalver has a great post on a proposed Washington State ballot initiative similar to Oregon's Measure 37.  Eduardo and I disagree on a number of takings issues -- for example, I think that Lucas v. South Carolina Coastal Council was 100% correct, while he is more skeptical.  We completely agree, however, that this type of initiative or legislation is really bad news.  I'm very sympathetic to the property rights side on a lot of takings issues, but as I've observed before, property rights advocates have never made a convincing transition from criticism (often valid in my view) of regulations that result in a severe diminution in property value without compensation to making a convincing argument for a rule that requires compensation for any diminution in value.

If this measure passes, however, I wouldn't blame property rights advocates or out-of-state political operatives.  I'd blame regulators on all levels who too often act as if screwing property owners will not have political consequences.  (C.f., the Kelo backlash).  Eduardo observes that these initiatives are "often portrayed as the result of broad grassroots outrage at over-regulation," going on to note the role of property-rights organizations in getting the initiatives on the ballot.  While I'm well aware of the flaws in ballot initiative voting, property rights organizations don't vote.  It seems to me very likely that Measure 37 passed overwhelmingly over concerted opposition because Oregon voters were pissed.  At a certain point, arguments that voters just didn't understand what they were voting for just don't hold up anymore.

UPDATE:  Eduardo has further thoughts here; Geoff Manne and Will Baude have defenses of this type of initiative here and here.

Ben Barros

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Ben -- I think we're largely in agreement here. It's fair enough to point out that property rights advocacy groups don't vote, but I question whether there is really the intensity of feeling about these initiatives that commentators often assume. Really the highest barrier (and the one with the most potential to reveal intensity of support) in the initiative process is getting on the ballot, and in cases where signature collectors are paid (as with I-933), that barrier is substantially weakened. Once on the ballot, the ability to attract over 50% of the vote seems to me to be a poor indicator of intense feeling against land use regulation. That said, I think your point is well taken. A well funded opposition ought to be able to educate the public about the costs of these sorts of laws, and majority support in the face of such opposition probably tells us something about the public's views on the fairness of the land use regime. It will be interesting to see how all this plays out in Washington State in the fall.

Posted by: Eduardo Penalver | Jul 8, 2006 10:56:14 AM

Eduardo, I agree. I think part of the problem in the Northwest is that land-use issues are always in the news, especially urban growth boundary issues. As with the Kelo-backlash, news coverage can have a big impact on public perception of an issue. I also think that land use planning can be done in ways that don't really cream some property owners. In PA, there are some urban growth boundaries that are done using TDRs to lessen the impact on property owners outside the boundary. If regulators and planners took reasonable steps to be a bit more fair to property owners, a lot of the momentum for Measure 37 and similar initiatives would disappear.

Posted by: Ben Barros | Jul 8, 2006 11:20:51 AM

Without spending a great deal of time researching the topic of I-933, I tend to agree that if this initiative passes it is because the voting public is tired of the representatives in Olympia failing to respond to the perceived abuse of immanent domain - I know that's why I voted for it........

Posted by: robert | Sep 28, 2006 5:56:28 PM

We'll see how the vote comes out, but if it passes, I doubt most people have done the research to understand the wide ranging effects that will result (reminds me of I-695). I doubt the takings issue has much grassroots support.

Posted by: Lawyer Guy | Oct 2, 2006 12:01:52 AM

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