From the Director: Property Rights Initiative Filed

As summarized below, the initiative, if approved, would significantly impact cities’ land use authority. In anticipation of the initiative, the Association was authorized to "become involved in the opposition coalition after the initiative is filed." The initiative is patterned after Measure 37, overwhelmingly approved in Oregon, subsequently invalidated by the courts, but under consideration on appeal by the State Supreme Court.

As filed, the initiative would require governments to either compensate private property owners for ordinances or regulations that "damage the use or value of private property," or forego, or waive such regulations.

The initiative defines "damaging the use or value" of property as any action that:

• prohibits uses that were allowed in the last 10 years;
• prohibits operation, maintenance, or repair of existing tide gates, bulkheads, and other structures necessary to protect private property;
• prohibits operation and maintenance of irrigation and drainage structures;
• prevents a property owner from protecting his/her property from fire, flooding, erosion, or other natural disasters;
• requires someone to leave property in its natural state or without beneficial use to the owner; and
• prohibits maintenance or removal of trees or vegetation.

Damage would not include:

• restricting the use of property when necessary to prevent an immediate threat to human health or safety;
• building codes to prevent harm from earthquakes, flooding, fire, etc.;
• limiting the location or operation of sex offender housing or adult entertainment;
• requiring adherence to chemical use restrictions that have been adopted by the EPA;
• worker health and safety laws or regulations and wage and hour laws; and
• setbacks from property lines that were adopted before January 1, 1996.

The initiative also contains a requirement that prior to the adoption of an ordinance or regulation that may "damage" private property, government agencies must "consider and document:"

• the private property that would be affected;
• the existence of any legitimate governmental purpose for the action;
• the extent to which the action deprives property owners of economically viable use of the property;
• the extent to which the action takes away a fundamental attribute of property ownership, including, but not limited to, the right to exclude others, to possess, to beneficial use, enjoyment, or to dispose of property;
• estimated compensation that may need to be paid; and
• less restrictive options and voluntary conservation or cooperative programs with willing property owners.

This initiative is far reaching, and if approved, could have substantial impacts on state and local land use policies. The full text of the initiative can be found at www.propertyfairness.com.

There has already been formed a group to oppose the initiative. Information from that group can be found at: www.protectcommunities.org/. We anticipate that this will be a heated issue. The proponents will have until July 7 to gather roughly 225,000 valid signatures to get the measure on the November, 2006 ballot. AWC will make more information available on this in the coming weeks and months.

In Closing

While the above discussion describes a non-legislative issue, passage of the proposed initiative could have dire consequences for state and local government. However, irrespective of the proposed initiative, the Legislature is moving briskly towards its second cutoff. Legislation that has not cleared its house of origin by Tuesday, February 14 is technically "dead" for this year. Please be mindful of that date as you respond to our requests for legislative contact.

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