Initiative 164

The Private Property Regulatory Fairness Act

Balancing Private and Public Rights

Lorena Mrachek

Initiative 164, the Private Property Regulatory Fairness Act, was passed by the Washington State Legislature on July 18, 1995. The Initiative was scheduled to become law, but a citizen petition raised more than double the signatures needed to place the Initiative on the November ballot. At the time, the voters, not the legislators and lobbyists, will determine the fate of the property rights referendum.

The intent of the Initiative is to provide property rights beyond the scope of what is currently allowed by the State and Federal constitutions. The most significant issue is the expansion of the current definition of takings. The question of how to deal with partial takings on less than 100% diminution of value or limitations on portions of property has yet to be defined by the Courts. However, this is precisely the issue that supporters of the Initiative attempt to control. It requires government to compensate property owners for any diminution in value or for only portions of property restricted because of a government regulation. The Initiative relies on invalidation of current regulations as part of the remedy for expanded protection of individual property rights. The only exception to these measures is for situations deemed a public nuisance.

A second provision in the Initiative requires that government provide an economic impact analysis of proposed regulations that would demonstrate how the regulation would affect private property. This element includes choosing the least burdensome option to solve the problem for which the regulation was written. Based on the Initiative's specific language, it could be construed that these procedures would have to be implemented prior to any governing entity regulating the simplest action.

It is nearly impossible to determine the effect the Initiative would have on state and local government in Washington. The proponents say that as long as government regulates only for public nuisance, there will be no problem. Opponents of the Initiative believe that Initiative 164 is unnecessary because adequate protections are currently provided by the U.S. Constitution's Fifth Amendment. Opponents also believe that the Initiative will have onerous and damaging effects to government. What is certain is that the Initiative is ambiguous, poorly written, and fails to define important governing elements. Therefore, it will be up to the Courts to determine the Initiative's true meaning.

Legitimate land use issues are in need of redress, but Initiative 164 is not the answer. The purpose of this paper is to prove this point and to identify workable solutions for private property owners. This paper includes a survey of the historical context of takings jurisprudence, identification of implementation problems with Washington's major land use regulations, an analysis of the identifiable effects of Initiative 164, a review of an existing case study that shows the results of reduced land regulations, and suggestions for more productive and reasonable approaches.

The number of takings claims can be minimized by offering alternative methods of relief. Government should not be burdened with obligations such as compensating land owners or invalidating regulations. It is also unfair to burden the Courts with ill-conceived legislation that may take years to define.