Property Frights

Why property rights initiatives are losing at the polls

For all their successes, property rights supporters have yet to show that they can win at the ballot box. They have not demonstrated that they can convince the broad majority of citizens that protecting property rights--and compensating people for their losses--is a matter of good government and simple justice.

When Phil Marble went door to door in Bellevue and Seattle, Washington, last fall soliciting support for Referendum 48, a sweeping statewide property rights initiative, he used his own experience to get people's attention.

A Washington native, Marble had worked as a reforestation contractor and landscaper in the '70s and '80s. Then in 1990 he decided to start a nursery that would specialize in native plants. He bought 16 acres in a rural area of Whatcom County, which butts up against the Canadian border.

Six months later, the nearby Nooksack River flooded and scoured topsoil off of much of his property, leaving one-third to one-half useless for nursery purposes. The state Soil Conservation Department quickly approved Marble's plan to replace the topsoil. But several of his neighbors were major players in the local and county governments, and they wanted to direct future flood waters from their land onto his. Naturally, they didn't want to pay for it.

"I was the fall guy. I was new on the block, and I guess they figured I could be a pushover," Marble says.

Just as Marble was finally ready to begin replacing 40,000 yards of soil, the county suddenly issued a stop-work order in September 1993. The order didn't list any specific violations; it just stated that he was exceeding the approved restoration plan. Later county officials told Marble he was filling in a floodway and ordered him to create a channel seven feet deep, 200 feet wide, and 1,200 feet long. But according to Marble, no such floodway had ever existed in the past--and he has an engineering study and 50 years of aerial photographs to prove it. Gene Aarstol, one of Marble's neighbors and head of the Deming Diking Association, wrote in a February 12, 1996, letter to Whatcom County Executive Peter Kramen that "there has been a floodway and overflow channel through Mr. Marble's property ever since my 94-year-old father and I can remember."

County officials didn't back down, so Marble filed suit against the county on Fifth and 14th Amendment due process grounds. His case has been in federal court for nearly two years, and chances are it will drag on for years to come.

Marble estimates he's racked up $300,000 in engineering studies and lawyers' fees, and that's not counting the cost of keeping nearly half his land idle. To get by, he's been freelancing as a landscaper. Though he doesn't want to dwell on his predicament, it's clear he's very concerned about the future.

"Look, I'm 49. It's taken five years of my life, and it takes years to get any plants on line. What am I going to do?"

Even if he wins, he could lose.

"We're talking about so much money that the county would have to pony up. I could end up winning, but still owe large amounts to my lawyer," says Marble.

When Marble finished telling his story, people would shake his hand, tell him how much they sympathized with his situation--and say they were going to vote against Referendum 48.

"It was very disheartening," he says.

Disheartening not only to Marble but to property rights supporters in Washington and across the country. Referendum 48 was a high-profile showcase for the movement, and it lost by a resounding 3-2 margin. The measure was pounded in urban and suburban areas. And it wasn't the first time voters had rejected a property rights measure. In 1994, Arizona voters overturned a 1992 takings bill by the same ratio.

In many respects 1995 was a banner year for the property rights movement. Protecting property rights was a key component of the Contract with America, and dozens of states considered takings legislation. But for all their successes, property rights supporters have yet to show that they can win at the ballot box. They have not demonstrated that they can convince the broad majority of citizens that protecting property rights--and compensating people for their losses--is a matter of good government and simple justice. And they've made political and drafting mistakes that have further hampered their cause.

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