I believe I-933 has shot across the bow of many important considerations, yet it has missed the mark by virtue of the door it opens for abuse.

My husband and I are stewards to 719 acres of forest and farmland in a river valley in NE Washington State. We believe it is our duty to care for the land, and when restrictions encumber it, to swallow (sometimes hard) the impact. Our forest is certified sustainable, we exceed what is asked/required of us by government & environmental policy, and are proud to do so.

But we recognize that not all landowners are of the same mind in these things. Further, those who would purchase farm and forestlands, and develop those parcels into (X,Y,Z) for financial gain, are anxiously waiting in the wings, perhaps even salivating at what doors I-933 opens for their ambitions.

Yes, some sort of measure/initiative is needed to make the legislature consider the ramifications before passage of bills that further burden private landowners.

But this is not that measure.

I agree that I-933 is a bad idea that will have a lot of unintended consequences, but be careful with comments that suggest that rural landowners feel they should “not be expected to bear any burden in our use and enjoyment of property, no matter how trivial.”

In King County Council members for the the urban 90% control the process for making regulations through CAOs and DDES regs and have instituted a “pay-as-you-go” budget for DDES that means all the protections are paid for by rural property owners. This is environmentalism for free.

Let’s share the cost and find a balanced cooperative approach! This type of hypocrisy is hard to stomach even for those of us who are anti I-933. If you new the facts on the ground in King County I don’t think you’d jump to such conclusions about rural property owners.

You characterize the burden on property owners as “trivial” and a mere “inconvenience.” But if that’s the case, what’s the big deal? All the proposed law does is require the state to compensate the property owner for actual damages if it wants to regulate. If the actual damages are “trivial,” then why can’t the state compensate the property owner this “trivial” amount of money?

It seems to me that you’re trying to have it both ways. How can it be a “disaster” to require compensation if the burdens are so slight — are mere “inconveniences”? On the other hand, if the costs really are large, then aren’t you being unfair in characterizing the property owners are “antisocial” because they don’t think they ought to uniquely bear these costs?

That said, you raise an interesting point, which is whether a narrowly targeted property tax provision (like a special district) could count as a “regulation” of property under any plausible understanding of that term. I think it might. If it can’t, then the law has a huge loop hole that would allow policy-makers to accomplish their land use planning regulatory goals through the use of narrowly targeted taxes and impact fees (for example, huge “development taxes” designed to make it unattractive to build outside of urban growth boundaries). I’m inclined to think that’s a good thing, and I hope the Oregon government tries it, but I doubt the sponsors of these sorts of laws would agree. For more on this fluidity between regulation and taxation, see my article, Regulatory Taxings, in the Columbia Law Review. I suspect that drawing the line between taxes that seek to recoup benefits and taxes that serve regulatory purposes will be a difficult one to draw. Many will do both. But, in the end, I think your point is well taken, and I am probably overstating the difficulty of drawing lines in this area. Policy makers or courts might exclude from the definition those narrowly applicable taxes designed solely (or mostly) to recoup unevenly spread benefits. Of course, all of this line-drawing will get terribly expensive, which is part of the problem with laws, like I-933 and Measure 37, that don’t impose thresholds for applicability (e.g., 10% or 20% or 50% declines in value).

But I’m not sure how any of this weakens my point that THIS provision is unbalanced by requiring compensation without mandating recoupment of benefits. The fact is, these recoupment devices, while currently used to some extent, are certainly nowhere near as comprehensively employed as this provision would be. Your answer may be that the existence of provisions like this will spur states to broaden their reliance on special tax districts. I have not seen any evidence that that’s happened in Oregon, and my inclination is to think that the substantial political barriers to new property taxation will keep that from happening in the future. So the unbalanced nature of the law will likely persist.

I think you’ve misread the proposed Washington law. Section 2(b) defines a compensable government action as one that “prohibits or restricts the use of private property” and the specific examples that section gives all fit within that description, i.e., regulations on land use itself, not regulations that do not limit land use directly but may have an effect on value such as increased property taxes. Therefore, a special taxing district could be created without it being part of the same law that imposed the compensation requirement. Nevertheless, there’s still the question of whether the state will actually act to recoup the benefits, but it does weaken your argument that these laws necessarily create asymmetrical benefits to landowners.

Can’t the assymmetry you talk about, namely certain property owners getting special benefits from government spending such as increased traffic due to a new highway, be cured by using special taxing districts when such windfalls occur?

As for your interest group politics point — we’re probably in agreement here. I don’t have any general objection to interest group politics. My point was more to rebut the common characterization of these property rights initiatives as reflecting some broadly shared feeling of resentment by property owners.

Finally, if the ideology underlying these laws is that people have a general right to do what they want with their property short of creating a nuisance (which I take to be one of the basic premises of property rights libertarianism), then how is it not hypocritical to exempt those uses of property deemed by some of the law’s supporters to be immoral (though presumably not a nuisance, or the exemption would not be necessary)? I would have thought that a law that protects MY right to do what I want with my property but that makes an exception for YOUR property uses that morally offend ME is almost a textbook case of hypocrisy.

You use a lot of scare words in this post — hypocritical, wrongheaded, unbalanced, selfish, etc. — but in the end, your analysis seems relatively light on reasoning.

On the first argument, what you dismiss as “antisocial,” others will see as properly individualist; on the second, what you dismiss as one-sided, others will see as two-sided (in that they already paid for the benefit through their taxes, right?); on the third, many legal developments are the outcomes of “interest group politics,” so it’s hard to say why that matters; and on the fourth argument, what you dismiss as “hypocritical” others would say is just reasonably balanced.

I realize that you may have very good unstated reasons for your characterizations, and in the end I think I probably agree with your instinct that the proposal is a bad idea. But I would to hear more of a developed argument to be more confident. Thank you.

Your second point makes no sense either. Why should a property owner pay for unintended benefits when the government action has benefits that are not related to the gain?