Washington Secretary of State
Elections

Initiative Measure 933

Proposed by Initiative Petition
 
Official Ballot Title:

Initiative Measure No. 933 concerns government regulation of private property.

This measure would require compensation when government regulation damages the use or value of private property, would forbid regulations that prohibit existing legal uses of private property, and would provide exceptions or payments.

Should this measure be enacted into law?

Yes [ ] No [ ]

Note: The ballot title and explanatory statement were written by the Attorney General as required by law. The Fiscal Impact Statement was written by the Office of Financial Management. View complete text of Initiative Measure 933: PDF
 
Fiscal Impact Statement
Summary of Fiscal Impact
Initiative 933 is estimated to cost state agencies $2 billion to $2.18 billion over the next six years for compensation to property owners and administration of the measure. In the same time period, the Initiative is estimated to cost cities $3.8 billion to $5.3 billion, based upon number of land-use actions since 1996, and is estimated to cost counties $1.49 billion to $1.51 billion. Costs are derived from the requirement that, with specific exceptions, state agencies and local governments must pay compensation when taking actions that prohibit or restrict the use of real and certain personal property.

Assumptions Supporting Fiscal Impact Statement
•    State and local governments would be required to document the impact of new rules or ordinances that may affect the use or value of private property prior to its adoption and evaluate less restrictive alternatives. State agencies estimate additional costs to the rule-making process of $24 million over six years. Based upon population it is estimated to cost cities between $80 and $103 million and counties between $28 and $36 million over six years.
•    Claims for payments asserting that state or local rules and ordinances result in damage to use or value to property would be triggered when state and local governments deny or restrict private property owners who file permit applications with state or local governments to develop, harvest or otherwise make use of their property. Claims would also be triggered when a state or local government took an action to enforce an existing rule, ordinance or permit.
•    According to state agencies, approximately 5,920 claims per year is estimated to be filed, and would likely be made for restrictions placed upon timber harvest, surface mining, activities occurring in rivers and streams to protect fish life, activities to preserve clean water, and activities involving the state’s shorelines. Claims processing is estimated to cost state agencies approximately $1.86 million over the next six years.
•    Claims-processing costs for local governments from claims in local-land use, local-shoreline management plans and critical-area designations programs are assumed in the estimates for the additional analysis required for rule or ordinance adoption.
•    State agencies would need to complete appraisals to verify compensation claims, resulting in a cost to state agencies of approximately $115 million over six years. The estimate is based on costs of $7,500 per appraisal for real property and $2,600 per timber cruise. Using similar appraisal costs, but assuming they would occur when there are appeals of decisions, the estimated cost to cities is between $130 and $556 million and to counties between $13 million and $66 million over six years.
•    Under existing laws, appeals related to compensation levels would be filed in Superior Court. Between 5 percent to 20 percent of all claims (275-1,100) for state agencies is estimated to be appealed annually, increasing state agency litigation costs between $29.8 million and $98.8 million over the next six years. Using a standard cost per city based upon population, it is estimated to cost cities between $126 million and $161 million over six years and counties between $35 and $45 million over six years for litigation costs.
•    Superior Courts and the Courts of Appeal will have additional costs resulting from claim decisions made by state agencies. The Office of the Administrator for the Courts estimates that these costs will be divided as follows: costs to the counties will be between $495,000 and $830,000 and the cost to the state will be between $82,000 and $328,000. Assuming a total of 5,000 appeals from state and local government action, there would be an additional $3.9 million in first year costs and $2.7 million in subsequent years.
•    Assuming there are 5,920 claims per year, state agencies have estimated a range of compensation between $344 million and $352 million annually or $1.89 billion to $1.9 billion over six years. This estimate does not include compensation that may be required for restrictions placed upon 900 Hydraulic permits annually issued by the Department of Fish and Wildlife, which cannot be determined due to the highly site-specific requirements for these permits. Also not included are compensation estimates for timber-harvest restrictions occurring on unstable slopes or to protect marbled murrelet habitat; restrictions for Bald Eagle Site Management Plans occurring on nonresidential permits; and for setbacks to protect drinking water systems or setback and lot size requirements for onsite sewage systems required by the Department of Health.
•    It is estimated to cost cities between $3.5 billion and $4.5 billion to pay compensation for actions that have occurred since 1996. The estimate is based upon a survey of cities on possible impacts, population growth rates, and assessed value.
•    County governments planning under the Growth Management Act could see potential claim for compensation of approximately $1.4 billion over six years. This is based upon the potential compensation request for loss in value for acreage equivalent to that contained in the counties urban growth areas. No estimate is included for a loss in value for counties not planning under the Growth Management Act because of the inability to determine the number of acres in each county designated as critical areas such as geologic hazards, critical fish and wildlife habitats, wetlands, aquifer recharge areas or frequently flooded areas.
•    These compensation estimates assume that state agencies and local governments will be unable to waive any current restrictions that may reduce the use or value of private property. It is also assumed that the state will not delegate back to the federal government federally delegated programs (i.e., Clean Water Act, Clean Air Act, etc.). No estimate has been made for any future actions taken by governments that may require compensation or for actions that attempt to reduce liability caused by the Initiative.
•    The compensation estimates are also based primarily upon potential loss in value to real property.  No estimate has been made for any potential loss to personal property.
•    State law does not allow for the estimation of private costs or benefits from this or any other initiative.
 
Explanatory Statement
The law as it presently exists:

    The state and local governments enact and enforce laws that affect the use of real property, including laws that impose restrictions on use or development of real property. These laws are subject to constitutional and statutory requirements that provide certain protections to private property owners.
    Washington’s constitution requires state and local government to pay an owner of private property just compensation before taking or damaging private property for a public use, and in general prohibits government from taking private property for private use. The federal constitution provides similar protections. A common example of the requirement for just compensation occurs when government acquires private property to build a public road. The constitution requires government to pay fair market value for private property taken to build the road and for damages to private property used for the road building but not taken.
    The constitutional requirement to pay just compensation also applies under limited circumstances to laws that restrict the use of private property. If the restriction completely eliminates the owner’s economic use of real property, or if the restriction involves a physical intrusion onto the private property, then just compensation is generally required. Whether regulations or restrictions on use of real property otherwise amount to a taking or damaging of private property under the constitution (and thus require payment of just compensation) depends on the particular effects on property. A restriction on real property may require just compensation depending on the economic impact of the restriction on the property, how the restriction affects legitimate property uses and the property owner’s reasonable investment-backed expectations, and whether the restriction reflects a reasonable means for achieving an important public objective.
    Under the state and federal constitutions, a property owner may bring an action for just compensation to obtain the fair market value of property taken or damaged by the government, if the government has not paid compensation. Under the Washington Constitution, the property owner may also bring an action to invalidate government action that is taking or damaging private property and there is no public use, only a private use.
    Under current state law, a property owner who has applied for a permit to use property may recover damages, attorney fees, and other costs where a state or local agency action on the permit application is arbitrary or capricious, or if the state or local agency does not act within time limits established by law. RCW 64.40. Under a variety of laws, a property owner may challenge state or local government restrictions on the use of property and obtain an agency review or judicial remedy if a restriction is not allowed under state or local laws. These statutory protections for property owners are in addition to the constitutional right to just compensation described above.
    Under current state law, state agencies and local governments are required to follow an orderly and consistent process using advice and education from the Attorney General’s Office to evaluate proposed actions affecting the use of property and to avoid taking or damaging private property without just compensation. RCW 36.70A.370. The process applies to all state agencies and to those local governments that plan and regulate land uses under the Growth Management Act.

The effect of the proposed measure, if it becomes law:

    As described below, Initiative Measure 933 would require a government to consider and document certain factors prior to enacting laws regulating private property. The Measure would also require a government to pay compensation to private property owners to enforce restrictions “damaging the use or value” of private property as defined by the Measure, which would require compensation in circumstances in addition to those where the state or federal constitutions would require compensation. Development regulations could not prohibit legal uses existing on a parcel of property.
    Initiative Measure 933 would require state and local government agencies to consider and document certain matters prior to enacting an ordinance, regulation, or rule that may “damage the use or value” of private property. “Private property” is defined to include all real and personal property interests protected by the state and federal constitutions, including and not limited to interests in land, buildings, crops, livestock, mineral and water rights. In general, “real property” refers to land, interests in land, and things attached to the land; “personal property” includes all other property. Government would be required to consider and document several factors, including: (1) identifying the private property to be affected by a proposed action; (2) the purpose(s) to be served by the action and the connection between the action and its purpose(s); (3) the extent to which the action deprives property owners of uses of property, or interferes with a property owner’s right to exclude others, to possess property, to enjoy property, or to dispose of property; (4) estimated compensation that would be required under the Measure for “damaging the use or value of property”; and (5) alternative less restrictive means of accomplishing the governmental purposes, including voluntary cooperation.
    The Measure defines “damaging the use or value of property” as meaning “to prohibit or restrict the use of private property to obtain benefit to the public the cost of which in all fairness and justice should be borne by the public as a whole,” and includes examples of restrictions that would and would not result in “damaging the use or value” of private property, triggering the requirement for compensation.
    Under Initiative Measure 933, examples of government action “damaging the use or value” of property and requiring compensation would include enforcement of any ordinance, regulation, or rule to private property:
•    Prohibiting or restricting the use or size, scope, or intensity of any use legally existing or permitted as of January 1, 1996;
•    Regulating the use of tidegates, bulkheads, or structures reasonably necessary to protect private property, the operation and maintenance of irrigation structures, or how a private property owner responds to flooding, erosion, or fire conditions;
•    Requiring a portion of real property to be left in a natural state or with no beneficial use to the owner, unless necessary to prevent immediate harm to human health and safety; or
•    Prohibiting maintenance or removal of trees or vegetation.
    Initiative Measure 933 provides that enforcement of restrictions that apply equally to all property subject to a state or local agency’s jurisdiction would not “damage the use or value” of private property, and so would not require compensation. Under the Measure, examples include:
•    Restricting the use of property to prevent immediate threat to human health or safety;
•    Requiring compliance with structural standards like building or fire codes to prevent harm from natural disasters like fire, flood, or earthquake;
•    Limiting location of sex offender housing or adult entertainment;
•    Requiring compliance with federal laws restricting chemical uses, with worker health and safety laws, and with worker wage and hour laws;
•    Requiring compliance with ordinances establishing setbacks from neighboring property lines, but only if the setbacks were set before January 1, 1996.
    Under Initiative Measure 933, if a local or state agency decided to enforce or apply an ordinance, regulation, or rule “damaging the use or value” of property, the agency must first pay the property owner compensation, and an agency that chooses not to take such an action is not liable for paying the property owner. Compensation would be the amount by which the fair market value of affected property is decreased by application or enforcement of the ordinance, regulation, or rule, and the fair market value of any portion of the property required to be left in a natural state or without beneficial use. Compensation also would include the property owner’s reasonable attorney fees to enforce compensation under the Measure.
    Initiative Measure 933 would not limit existing state or local government authority to waive or vary the requirements of existing laws. The Measure would prohibit an agency from charging a fee to consider whether to waive or vary a law to avoid paying compensation that would be required under the Measure.
    Initiative Measure 933 would amend current law to provide that “development regulations” could not prohibit uses legally existing on any parcel prior to their adoption. The term “development regulations” refers to controls placed on development or land use activities by a county or city such as zoning ordinances, critical areas ordinances, shoreline master programs, planned unit development ordinances, and subdivision ordinances.

 
Statement For Initiative Measure 933
    Initiative 933, the Property Fairness Act, will restore balance between government’s power to regulate and the people’s constitutional right to own and use private property.

IT’S FAIR: PROTECTING THE USE OF PRIVATE PROPERTY PROTECTS OUR JOBS, RETIREMENTS AND PUBLIC SERVICES
    In the past 10 years, excessive government regulations have violated our rights and made it difficult for farmers and other property owners to use their property in reasonable ways.
    For most of us, our homes are our greatest investment. Government should not be able to change the rules and strip us of the use or value of our private property. I-933 protects our jobs, our economy and our retirement plans that depend on reasonable use of private property.

IT’S FAIR: I-933 REQUIRES GOVERNMENT TO CONSIDER COSTS AND RESPECT PROPERTY OWNERS’ RIGHTS
    Too often, government adopts regulations without fully understanding the impact on the people it represents. I-933 will require government to identify the likely impact on property owners and pursue voluntary, cooperative efforts to achieve environmental goals before adopting new regulations.

IT’S FAIR: I-933 RETURNS RESPONSIBILITY FOR LAND-USE PLANNING TO LOCAL GOVERNMENT AND CITIZENS
    Instead of accepting top-down mandates from unelected state officials, local government will be required to assess the impact of its actions on local property owners, thus giving citizens more say in local land-use decisions, and holding local officials accountable for their actions. Agencies can choose whether to compensate property owners or avoid damaging the use and value of private property. But the main point of I-933 is to have government avoid damaging property in the first place.

IT’S FAIR: I-933 REQUIRES GOVERNMENT TO RESPECT OUR RIGHTS AND FOLLOW THE CONSTITUTION
    Washington’s state constitution says, “No private property shall be taken or damaged…without just compensation.” I-933 will force government to respect our rights and follow the constitution.
    For more information, visit www.propertyfairness.com or call 360.528.2909.
 
Rebuttal of Statement Against
    I-933’s opponents will say anything to maintain big government control of private property.
    Their claims simply aren’t true. If local regulations prohibited development or activities 10 years ago, it will still be prohibited after I-933 passes.
    However, if you prove government action damaged use or value of your property, government would compensate you or avoid causing damage.
    I-933 forces government to consider costs and follow our state constitution by paying if regulations damage your property.

 
Voters Pamphlet Argument Prepared by:
STEVE APPEL, Endicott, wheat farmer, President of Washington Farm Bureau; SCOTTIE MARABLE, Bellevue, NFIB State Chair and small business owner; HEATHER HANSEN, Executive Director, Washington Friends of Farms and Forests; CLYDE BALLARD, Wenatchee, former Republican Speaker, House of Representatives; DAN WOOD, Montesano, former County Commissioner and Democratic Party Chair; DAVID TAYLOR, Yakima, land use consultant, former County Planning Director.
 
Statement Against Initiative Measure 933
A POORLY WRITTEN, LOOPHOLE-RIDDEN
INITIATIVE THAT LEAVES HUNDREDS OF
QUESTIONS UNANSWERED
    Initiative 933 is deceptive and misleading. It provides no protection from eminent domain abuses. Instead, the special interests behind I-933 crafted loopholes that force Washington taxpayers to pay billions to a small group of property owners, or force communities to waive safeguards against irresponsible development.

WHO BENEFITS FROM I-933’S LOOPHOLES?
    Here is an example of how the loopholes work. If laws prevent a property owner from expanding a strip mall in a neighborhood or building a subdivision on farmland, I-933 would force the community into a no-win choice—either waive the law or have taxpayers pay the property owner for not being able to build.
    How will governments decide which laws to waive and who taxpayers pay? One thing is certain: I-933 is so poorly written it will generate endless lawsuits. Special interests will hire the best lawyers and win out over communities. The lawyers’ fees and administration alone will cost taxpayers millions.
    Don’t be fooled – irresponsible development hurts farming. Hundreds of family farmers oppose I-933.
WHY WILL I-933 COST TAXPAYERS SO MUCH? AND
WHERE WILL THE MONEY COME FROM?
    In Oregon, a similar law generated almost $4 billion in claims against taxpayers. I-933 could cost each Washington taxpayer thousands yearly in additional taxes or lost services.

HOW WILL I-933 HARM SAFEGAURDS FOR OUR
COMMUNITIES?
    Communities have worked hard to protect their quality of life, but I-933 applies retroactively to laws going back at least 10 years! This would force communities to waive hundreds of existing safeguards we have depended on to protect neighborhoods and farmland, prevent water pollution, traffic and over-development.
    I-933 is a costly assortment of loopholes, lawsuits, and special deals. Please vote no!
    For more information, call 206.323.0520.
 
Rebuttal of Statement For
    What’s fair about irresponsible development? Worse traffic? More taxes? Ask yourself who stands to gain from I-933’s loopholes.
    Far from restoring balance, I-933’s loopholes allow irresponsible development to damage farmlands. That’s why farmers and farm-workers oppose it – including Western Washington Agricultural Association, Whatcom County Agricultural Preservation Committee, and United Farm Workers.
    There’s nothing fair about thousands of dollars in new taxes each year, damaging our neighborhoods, and jeopardizing our quality of life. Vote no.
 
Voters Pamphlet Argument Prepared by:
JOHN ROSE, Board Chair, The Nature Conservancy of Washington; KELLY FOX, President, Washington State Council of Fire Fighters; BARBARA SEITLE, President, League of Women Voters of Washington; LINDELL HAGGIN, Director, Neighborhood Alliance of Spokane County; ALAN MESMAN, President, Skagitonians to Preserve Farmland; ERIK NICHOLSON, Pacific Northwest Regional Director, United Farm Workers.
The Office of the Secretary of State is not authorized to edit statements, nor is it responsible for their contents.
  

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