Regulatory takings initiatives tie communities’ hands
I love sewers. I love them because the alternative is so much worse. Ponder that for a moment.
What the heck do sewers have to do with property rights and regulatory takings? Patience, grasshopper.
As I wrote yesterday, a rash of so-called “property rights” ballot measures in the West are threatening the very basics of community planning and environmental protection. Arizonans are facing Prop 207; Californians are battling Prop 90; Idahoans are up against Prop 2; and Washingtonians are facing Initiative 933. (Montanans and Nevadans recently dodged a bullet when their initiatives were invalidated because of little things like fraud and constitutional violations. More on that in a later installment.)
By design, all the 2006 property ballot measures deploy the same scheme: “pay or waive.” That is, you can pay a property owner to obey the law, or you can waive the law.
Here’s how one Montana writer described pay or waive:
If you could fit 20 houses on your land, plus a junkyard, a gravel mine, and a lemonade stand, and the government limits you to six houses and lemonade, then the government would have to pay you whatever profit you would have made on the unbuilt 14 houses, junkyard, and mine. Generally, if the government can’t or won’t pay you, it would have to drop the regulations.
Well, what’s wrong with pay or waive? Why shouldn’t I be allowed to do whatever I like on with my property? That’s where the sewers come in.
Communities pass laws and regulations to protect themselves. Sometimes they set speed limits (like the one I flouted). Sometimes they say it’s not OK to open a strip club next door to a school. And sometimes they say it’s not OK to destroy habitat for an endangered species, or foul the town’s drinking water, or put new development in a known floodplain.
And the sewers?
Sometimes communities pass laws about sewage. True story: there was a fellow in my town named G.W. Wells who, in 1901, complained about his neighbors. Wells had the misfortune of living downhill from sewage outflow that draped his bushes with toilet paper and delivered a choking and unsanitary stream of sewage and creekwater into his yard. You can hardly blame the guy for being upset.
Soon after Wells complained, rapid population growth forced the city to put restrictions on property rights. It required property owners to hook into the municipal sewer system. Then it outlawed burning trash (which fouled the air) or burying trash (which was a rat multiplier). Much later, it put restrictions on the factories that once dusted the front porches in my neighborhood with industrial soot. Every city in America has the same story.
And the pattern repeated itself all across the country: rising population growth and emerging technology created new (and often unexpected) problems. Lead paint damaged IQ, or auto emissions turned the skies brown. And we solved our problems by using the basic tools of American democracy. We got together in town halls and city councils and legislatures and we publicly hashed out a set of rules and compromises to fix the problems.
But the 2006 pay or waive initiatives will end that American tradition. Communities will not be able use democratic means to protect themselves. Instead, taxpayers will have to pay for the privilege. That’s what’s happening right now in Oregon. (Tune in tomorrow for more on Oregon’s experience.)
If they pass, the ballot measures will effectively paralyze property laws in 2006. It will be exceedingly difficult for communities to address new threats. Unscrupulous property owners will be able to demand cash payments from taxpayers whenever a law jeopardizes their short-term profit. (Never mind that property values depend greatly on regulatory protections.) And if communities cannot pay, property owners will be exempted from all sorts of laws — the very laws we may need in coming years if we are to adapt to burgeoning population, a warming climate, falling aquifers, rising seawater, vanishing species, or threats we’re not yet aware of.
So, the question facing the Western states in 2006 is whether communities should maintain their right to chart a future together; or whether, instead, states should freeze their laws in 2006, trusting that we will not face new challenges that require adaptation and flexibility.
Luckily for us, the generations before us preserved our right to protect our property and communities. But it’s not pretty to think about what might have happened if planning laws had been frozen in 1901, when G.W. Wells’ bushes were festooned by sewage from his uphill neighbors. Personally, I think it’s a fate too malodorous to wish on our kids.