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Public Radio's Environmental News Magazine (follow us on Google News)

Trespasses in Washington State

Air Date: Week of

In an upcoming referendum, voters in the state of Washington will get to decide on whether the government should pay citizens if it restricts their private property land use. If it passes, the new law could set the precendent for wide sweeping bills across the country. Terry FitzPatrick of Living on Earth's Northwest bureau reports on this landmark measure.


CURWOOD: This is Living on Earth. I'm Steve Curwood. If you own a house and the government decides to put a highway through your living room, they can take the house by eminent domain. But under the Constitution, you are entitled to just compensation. In other words, you get cash for your loss of property. Now, what if the government reduces the cash value of your land because it imposes a new environmental rule, say one against building on wetlands or cutting down trees? Should you get cash for this type of property loss? Voters in Washington State are being asked this very question in an upcoming referendum, and those concerned about environmental protection rules will be watching the outcome closely. Living on Earth's Terry FitzPatrick reports from our northwest bureau at KPLU in Seattle.

(Hammering sounds, wooden boards being moved)

FITZPATRICK: Marymore Hill is typical of developments under construction around Seattle: 36 luxury homes in a former pasture beside a spring-fed creek.

(More hammering)

FITZPATRICK: Todd Woosley says the headaches he endured in getting this project approved are also becoming typical. His company had to redraft its plans when city officials issued new rules about building near wetlands.

WOOSLEY: The result of that was a 2-year delay in the ability to build the neighborhood, a loss of 25% of the lots, and the starting prices of the homes being $100,000 more per home than they would have been had we been allowed to build 2 years previously.

FITZPATRICK: Experiences like this prompted Woosley to join the property rights campaign in Washington. A coalition of builders, timber companies, and farmers has crafted a measure that requires payments to land holders when regulations lessen the value of their property.

WOOSLEY: What we'd like to accomplish is to restore a little balance in the land use regulation arena, and particularly restore what we believe are constitutionally guaranteed rights: guaranteed in both the Federal constitution and in our state constitution.

FITZPATRICK: Governments have always had to balance the needs of the public against the civil rights of individuals. The Constitution prohibits the taking of private property without compensation, and governments have traditionally paid people whenever an entire parcel of land is condemned for projects such as highway construction. However, environmental and zoning restrictions generally have not triggered compensation. But many property owners have begun to argue that environmental rules do constitute a taking. And they've launched a movement that has caught on nationwide. In the past 4 years, 19 states have enacted so-called takings legislation of one kind or another. The referendum in Washington known as R48 would go further than any existing law. Any reduction in property value would have to be compensated by the government. R48 not only affects land but includes water rights, trees, minerals, and crops. Economic impact assessments would be required for any new regulation, and government planers would have to choose options that pose the lowest financial burden on landowners. Supporters like Todd Woosley say Referendum 48 would protect the public from environmental laws that go too far.

WOOSLEY: We would like to see people be compensated for property if it is indeed taken for public use. It's only fair. We pay for parks with our tax dollars. If we all benefit we should all pay for it.

FITZPATRICK: However, the wording of Referendum 48 has alarmed environmentalists, civic organizations, and government officials.

HARRISON: It seems clear that R48 is a case of good intentions gone awry.

FITZPATRICK: David Harrison, chairman of the Northwest Policy Center at the University of Washington, says it is important to consider the impact of regulations on land owners. But Harrison thinks the referendum is poorly written, imprecise, and would make for bad government.

HARRISON: If you don't spend a lot of time on the drafting, what you can get is a case of defects in drafting, where citizens can't reasonably understand what the impact would be and have a very hard time evaluating the costs.

FITZPATRICK: Among the impacts opponents fear are strip malls and gas stations popping up in residential neighborhoods, because government could not afford the compensation costs to stop them. Farmers might even get compensation if they're prohibited from spraying pesticides near school playgrounds. David Harrison estimates Referendum 48 could require $11 billion in payments to land owners to prevent them from developing their property. Environmentalists say this burden could force officials to abandon environmental regulations. John Lamson is spokesman for the No on 48 Campaign.

LAMSON: Communities will throw their hands up in the air and say we can't afford to stop anything, and we're not going to hang ourselves out there in the wind for all sorts of compensation liabilities. So they're going to drop their regulations.

FITZPATRICK: Proponents of Referendum 48 say the fears of environmentalists and the estimated $11 billion price tag are exaggerations. They haven't offered a cost estimate of their own, but contend the proposal is carefully written and won't threaten local zoning.

(A phone rings. Man: "I'm calling from the No on Referendum 48 Coalition...")

FITZPATRICK: A lot is riding on the outcome of Referendum 48. Phone banks are being financed with sizable campaign war chests. Each side has raised more than half a million dollars, much of it coming from out of state. For John Lampsen of the No on 48 Campaign, the vote will be a national litmus test of public opinion.

LAMSON: If it wins here it could win anywhere. If we can defeat it here, we can defeat it anywhere.

FITZPATRICK: Property rights advocates have been successful in many state legislatures, but they've lost in the 2 states besides Washington that have put the issue on the ballot. Nancy Marzula, of the national group Defenders of Property Rights, says a loss in Washington could make it tougher to pass takings legislation elsewhere.

MARZULA: We will undoubtedly see that used as an example in debate at the Federal level and debate on other proposals pending in other states. And just in debates generally.

FITZPATRICK: There are mixed signals about the prospects for passage of Referendum 48. A poll last April found three quarters of the public supporting the general concept of compensating land owners. But a recent poll on Referendum 48 specifically shows 39% in favor, 33% opposed, and 28% undecided. The election is set for November 7th. For Living on Earth, I'm Terry FitzPatrick in Seattle.



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