Property Rights Are Not Secure in Washington State
In 2008 the Washington State Court of Appeals threw out the most controversial section of the 2004 King County Critical Areas Ordinance, which was a provision that called for the set aside of as much as 65% of a rural landowner’s property when applying for a land use permit. The Supreme Court then refused to hear King County’s appeal, thus rendering the Appeals Court decision settled law. Yet the King County administration refuses to change the code to reflect the Appeals Court decision. When queried recently the reply was “Oh, we just don’t enforce that clause”.
Why? Aren’t county officials obligated to have the code reflect the law?
Non-industrial small forest landowners across the state were promised financial compensation when they were required to set aside stream buffers of as much as 200 feet on both sides of fish bearing streams with the passage of the 1999 Fish and Forest law. Lawmakers found that these folks were disproportionally affected by the loss of timber revenues that could not be realized due to the new restrictions. To date there is about ten million dollars owed to mostly family owners, and many more potential claims have not been submitted, because the state has not been paying. Is this fair? How can the state make promises and then not deliver?
The Department of Ecology is presently engaged in two initiatives that threaten harm to values and the quiet enjoyment of owners’ properties. Shoreline Master Plans seek unscientific one-size-fits-all 150 foot buffers, within which many uses would be non- conforming. Non- conforming status immediately lowers values, makes insurance difficult, severely limits improvement options, and lowers property values and thus also lowers county tax income. It also subjects owners to timelines with regard to grandfathering that many owners may not be aware of.
Private water wells are also under attack in several counties. Jefferson, Kittitas, Skagit and Lewis county owners are facing in-stream flow and aquifer related difficulties while trying to get their wells approved, and some are even facing the threat of not being able to continue using established wells. Where is the science to justify these types of actions? Western Washington has abundant precipitation and rural areas have low density development. Why is the state pursuing this course of action?
Even though Washington has one the best defined eminent domain clauses in its constitution, with specific language prohibiting the taking of private property for private use, stunning abuse has occurred. That abuse comes in a variety of flavors. Questionable blight declarations, public agency seizure of excessively large amounts of property and whether the action was even for a public purpose. ‘Public’ purpose can be as loose as whether or not more tax revenue will be collected as a result of new development, an outrageous result of the infamous Kelo decision at the US Supreme Court. The case involved Suzette Kelo and her neighbors in New London, CT who lost their homes to a private commercial development that was never built. State legislatures across the country reacted with new laws to protect individuals with varying results. The best we have managed to do so far in Washington State is to make sure the victims were better notified. But more must be done to safeguard property rights.
Property rights are civil rights. They attach to the person, not the property. Citizens Alliance for Property Rights (www.capr.us) is a volunteer nonprofit dedicated to preserving and restoring some of these precious rights. CAPR is calling on all elected and unelected public officials to recognize the fragile nature and importance of these rights to individual citizens. Homes and businesses owned by our hard-working citizens usually represent the lion’s share of investment and wealth that they have earned and created over their lifetimes. To protect individual rights, our economy, and entrepreneurial initiative, we all must do more to protect property rights.
We further call on lawmakers to demand that laws such as the King County clearing and grading ordinance, declared illegal by the Washington State Court of Appeals, are immediately changed to reflect the ruling; that laws such as the Fish and forest Law, which promise to pay for confiscated property, be fully funded or the property returned to the landowners; that over-reaching agencies, such as the Department of Ecology, cannot be allowed to shut down whole communities and economies with questionable science that smacks of a hidden agenda.
The eminent domain power has been described in history as ‘the despotic power’. Its use must be limited and compelling because the impacts on people are extreme.
Preston Drew is President of Citizens Alliance for Property Rights. The organization has chapters throughout Washington and California, and can be found on the web at www.capr.us.
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