Future political historians may look at these setbacks as rookie errors. It's easy to forget, but the modern property rights movement is less than 10 years old. "When we founded our organization in July 1990, you probably could have counted the state and local organizations on one hand," says Peggy Riegle, chairman of Fairness to Landowners Committee, a national property rights organization.
In the mid-1980s, University of Chicago law professor Richard Epstein provided the intellectual framework for the property rights movement. Historically, property owners have received compensation only when the state takes outright possession of their land. Epstein argued that regulations that diminish the use and value of property are no different from any other kind of taking. Public interest law firms, such as the Institute for Justice, Pacific Legal Foundation, and Northwest Legal Foundation, used Epstein's work to launch a property rights renaissance in the courts. Disgruntled ranchers, farmers, and foresters began to coalesce and form grassroots organizations across the country.
In many parts of the country property rights groups focus their attention on federal laws: on the Endangered Species Act, the Environmental Protection Agency, and wetlands regulations. But the federal government isn't the only threat. Washington state groups direct much of their attention on the State Environmental Policy Act and state buffer zones, wetland ordinances, and fish and wildlife habitat regulations.
"Most of the buffer zones and designated wetlands come from the state," says John Carlson, chairman of the Washington Institute for Policy Studies and host of a local conservative radio talk show. Hence the movement to do something about takings at the state level.
The Washington property rights movement expanded and broadened its base following passage of the Growth Management Act in 1990 and 1991, which implemented comprehensive statewide land-use planning standards for the first time. The GMA created urban growth boundaries, sharply limiting the permissible uses of property outside them. "Thousands of property owners were wiped out at the stroke of a pen," says Jim Klauser, executive director of the Northwest Legal Foundation.
But though the property rights movement in Washington and elsewhere grew rapidly, activists spent most of those early years in rural areas out of the limelight and without political influence. Like the Congressional Black Caucus today, property rights supporters were a minority faction in the minority party. In Washington state, they spent five years at the legislature just trying to get committee hearings for their bills. Frustrated by inaction, Dan Wood of the Washington State Farm Bureau organized a petition drive for an "initiative to the legislature" in 1994. As the name suggests, this type of initiative goes to the legislature, which must pass the measure within two years without any changes or it goes to the ballot. If the initiative passes, it becomes law without the governor's signature.
Activists didn't have high expectations that the legislature would pass any property rights bill, so they went for the brass ring. Unlike most takings legislation, Initiative 164, as Referendum 48 was known then, had no threshold for compensation--compensation was due for any regulatory taking, no matter how small--and was not limited to environmental regulations. The measure would have required state and local agencies to prepare an economic impact statement before adding new land-use regulations for public benefit and to choose the option with the least impact on private property. Then those agencies would compensate property owners for any resulting loss in value.
The initiative languished, but then the 1994 elections changed the political environment. Republicans took control of the state House and narrowed the gap in the Senate. Suddenly Initiative 164 had a chance--if it qualified. Developers poured money into the campaign and gathered the necessary signatures. The House passed the initiative 69-27. It was bottled up in the Senate for some time, but Republicans and rural Democrats forced a floor vote and it passed 27-20. Supporters didn't have much time to savor the victory, however, because opponents quickly gathered signatures to place the measure on the ballot that November as Referendum 48. They figured that property rights protections couldn't survive a showdown at the ballot box.
Something similar happened in Arizona. There, property rights supporters had an easier time winning their initial legislative victory because the state legislature and governor were pro-property rights. The 1992 bill would have required every state agency to determine the impact of new regulations and decide how to compensate landowners for any loss in property value. Before the bill could become law, however, green groups put the measure before the voters as a referendum.
Used to being a minority in the minority, property rights activists in both states previously had little incentive or opportunity to go beyond their circle of true believers and those who were well-versed in property rights. Suddenly they had to take their case to voters who knew little or nothing about the issue and find a way to convince them in 15- and 30-second soundbites.
Bob Robb, an Arizona political consultant, says the campaigns made the mistake of assuming that most voters already understood and embraced their viewpoint. "Most Americans are not taught that private property is essential to our freedoms. They are taught that property rights are inferior," he says.
Robb says another problem that proponents of the Arizona campaign had was showing "clear-cut abuses that this law would prevent," because most of the egregious takings cases in that state are committed by the federal government. Dan Jansen, counsel to Arizona Speaker Mark Killian, who led the legislative effort to pass the property rights bill, concedes that may be true but says, "If you're in the state legislature, you do what you can. You can't pass a law that reins in the EPA."
Activists in Washington didn't have that problem because they could target SEPA, the Growth Management Act, and other state and local laws resulting in regulatory takings. The Referendum 48 campaign highlighted the experiences of Phil Marble and other property owners, hoping to convince voters that the state was unfairly imposing the cost of regulations on real people. These horror stories had played well among people in rural areas, who were legitimately afraid that regulations could devastate their livelihoods. But a family living in the suburbs isn't worried about bureaucrats declaring their backyard a protected habitat for the spotted owl or their swimming pool a wetland.
"Proponents never did go to the average person who rents or has a single-family home and say this situation is intolerable and is hurting the average person," says Skip Richards, founder of the Committee for Land Use Education (CLUE) in Whatcom County. He says the campaign should have stressed how government restrictions on property hurt average voters by increasing the cost of housing and limiting job growth. But that is a hard case to make. The only direct experience that most people have with land-use regulation is with zoning ordinances. Even though people may understand intellectually that zoning raises the price of housing, those costs are hidden and indirect. If people can't see the cost, it doesn't make them upset.
And the truth is that most people like zoning. They believe it preserves the property values and character of the neighborhood. As with the school choice issue, voters in the suburbs see stronger property rights as something that would help other people, but would raise their taxes and threaten their neighborhoods. And if suburban voters won't give inner-city kids educational alternatives, they aren't going to vote to pay rural landowners and developers to comply with environmental regulations.
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