Ref. 48 Defeat Has Louder Echoes -- A Property-Rights Stall Now In Congress, Too?
For opponents of national property-rights legislation, Washington state's rejection of Referendum 48 couldn't have come at a better time.
Washington's thumping repudiation Tuesday of the sweeping property-rights measure came a week before the U.S. Senate Judiciary Committee is to take up a similar federal bill to compensate landowners.
Opponents say Referendum 48's demise could sway the outcome. At least they hope so.
"This is going to resonate across the country in a very powerful way," said Brock Evans, vice president of the National Audubon Society.
"It certainly gives lie to the notion that `takings' legislation is representative of some overwhelming groundswell," said David Socolow, director of the American Resources Information Network.
The network, a coalition that opposes state and federal property-rights laws, wasted no time yesterday in distributing a news release on Referendum 48's defeat to the national press. "Members of Congress should heed this clear expression of the will of the people," it read.
National property-rights leaders, not surprisingly, had a different spin.
Referendum 48's rejection is a setback, they acknowledged. But they don't think it will influence legislation elsewhere. And they scoffed at any suggestion that the Washington vote is a death knell for their movement.
"Referendum 48 was only one battle in a much longer fight," said Roger Pilon, director of constitutional studies at the libertarian Cato Institute in Washington, D.C.
"We will prevail, but it's going to take much more of an educational campaign than we have had so far."
Referendum 48 would have required government to compensate landowners for any lessening of property value resulting from any regulation designed "for public benefit."
The U.S. Senate bill, sponsored by presidential contenders Bob Dole and Phil Gramm, among others, would require compensation only if property value drops more than 33 percent.
But opponents say it could be more far-reaching than Referendum 48 because it defines "property" more broadly.
The U.S. House already has passed a bill that would require the federal government to pay landowners if the Endangered Species Act, federal wetlands regulations or water-rights restrictions reduce a property's value by 20 percent or more.
But opponents of such compensation said Referendum 48's defeat, coupled with equally overwhelming voter rejection of a measure in Arizona a year ago, could prompt Congress to step back.
Only from out of the West?
The two defeats are all the more impressive because the property-rights movement is widely perceived in Washington, D.C., as a Western phenomenon, said Glenn Sugameli, a lawyer with the National Wildlife Federation.
But Nancy Marzulla, who heads Washington, D.C.-based Defenders of Property Rights, suspects Washington voters rejected Referendum 48 without rejecting property rights.
The Washington measure's ambiguity probably was its undoing, she said. Candidates who support property rights continue to win in both Washington and Arizona, she added.
Referendum 48's resounding rejection in urban areas suggests "we need to do a better job of communicating why property rights are important to everyone," Marzulla said.
R.J. Smith of the conservative Competitive Enterprise Institute, a Washington, D.C., think tank, said the defeats in Washington and Arizona may have taught another lesson - that property-rights leaders shouldn't take the issue directly to voters through initiative or referendum.
Both state measures were difficult to explain, he said: "The `no' side, in a way, was the easier side to understand . . . The property-rights movement may have to find other avenues."
Back to the drawing board
Back in Washington state, lawmakers of both parties said the Legislature will deal with property rights next session, despite 48's demise.
"What happens next is we go right back and pass legislation," said House Speaker Clyde Ballard, R-East Wenatchee. "We're not going to let up at all."
Ballard and Sen. Sid Snyder, D-Long Beach, a veteran lawmaker who backed the referendum, noted that during the campaign opponents agreed there was a problem but that 48 was a poor solution.
"Hopefully all these people who have been so vocal about saying, `We are concerned about property-owners' rights but this is badly drafted,' will now come on board," Ballard said.
There were some hints yesterday that could happen. House Minority Leader Marlin Appelwick, D-Seattle, a referendum opponent, issued a statement saying the Legislature needs to find a "common-sense approach to regulation that recognizes that sometimes even good rules have unforeseen and extreme consequences."
Gary Pivo, president of 1,000 Friends of Washington and a leading foe of 48, said he's ready to sit down with property-rights supporters. "There are some very real problems with our land-use regulations, some fundamental issues of fairness and sensitivity, especially for small property-owners," he said.
Other possible approaches
Pivo rejected compensation as a solution. But he suggested several other possible approaches, including:
-- Adjusting property taxes more quickly to reflect regulatory restrictions.
-- Allowing landowners to develop other lands at greater density to compensate for property placed off-limits by regulation.
-- Stepping up public acquisition of environmentally sensitive lands.
-- Allowing small landowners a property-tax credit if they must hire a specialist to win development permits.
Before it passes any new laws, the state first should conduct a study to determine the scope of the property-rights problem, said Dave Bricklin, another 48 foe who heads the Washington Environmental Political Action Committee.
"My suspicion is that it's quite limited," he said.
Sen. Snyder said yesterday that he already had heard from lawmakers on both sides of the issue who want to try to pass something next year. But he said any solution must be agreed to by Gov. Mike Lowry, because 48's poor showing dooms any citizen referendum that tried to bypass the governor.
No more `wild anecdotes'
Jordan Dey, Lowry's communications director, said the governor "would certainly be willing to look at any proposals that make sense, and those would not be ones that would be based on wild anecdotal information.
"I think that during the campaign the problem was overstated, but it is certainly a legitimate issue . . . "