My Land, Your Land, Our Land

My home state of Washington must fend off an atrociously crafted property rights initiative, I-933, in next Tuesday's election. A recent poll suggests cause for great hope in both this race and the other initiatives in my state. If it proves true, I believe it will be the first time ever that I voted on the winning side of every initiative here.

Property rights measures often succeed by appealing to Americans' notions about property ownership and the American dream. "Property fairness" is the rallying cry of its supporters. My own predisposition is to be very distrustful of property rights movements, which are often motivated by greed and selfishness at the expense of the public good. That doesn't mean I cannot acknowledge instances where simplistically crafted regulations constrain reasonable uses of people's land creating justifiable resentment against government. But the answer doesn't lie in a simplistically crafted initiative voted on by the public at large, rather than having elected representatives hammer out the details to mitigate problems with existing regulation.

Even the Yakima Herald-Republic in conservative eastern Washington farm country was able to recognize the problems with an initiative approach to solving these complex issues:

About the most positive thing we can say about Initiative 933 is that it is a good example of why it's bad public policy to write complex state laws by initiative -- absent the give-and-take of debate and compromise in the legislative arena.

No doubt their predisposition on property rights differs considerably from mine, but even so we've come to the same conclusion.

The down side to having such strong predispositions is that I'm less inclined to become as fully informed as I might about issues where I'm more doubtful of my own stance. I reacted strongly against an online libertartian-right "voters guide" sent me by a libertarian leaning friend. While I am sufficiently informed to be quite certain that I-933 would make bad law, that certainty has hampered me from doing the background research to make that case to someone who doesn't share my predispositions.

Hence my follow up answer to her was couched in some uncertainty:

I don't pretend to be an expert, but my impression is that 933 proponents claim that the state, counties, and municipalities frequently write regulations which are in abridgement of the state constitution because they do devalue the property without compensation, and that their initiative simply enforces the constitution.

I believe some claims of devaluation are specious, some are correct, and some are debatable. For just about any issue one can find gray areas. In my opinion this initiative gives ammunition to any property owner whose personal interpretation of any post-1996 regulation leads him/her to believe there property has been devalued to sue for damages or to have the regulation overturned. Having encountered folks I deem as "property rights yahoos" in action before, that has me seeing red. Lots of these folks are motivated by greed and get their undies in a bunch at some perceived injustice when reasonable regulations spell out that there are certain uses prohibited of their land. Some may even seek compensation for potential profits they are being denied that they really didn't even intend to take advantage of.

If someone buys land at some point when regulations at the time of purchase allow them to build a residence and regulations change to disallow that, then I believe the current constitution should come into play to protect their interests, and they should either be allowed to build or be compensated for takings. Again, I'm not an expert, but I believe such cases don't require this initiative. While there may be cases where an owner has been unreasonably hurt by regulation, and deserves redress, this initiative is not the silver bullet for providing that redress. In spite of a few exceptions written into 933, its language adopts a far too broad approach which in the completely accurate words of the No campaign "goes too far, and costs too much."

I further acknowledged that there are some cases of eminent domain abuse, such as the Kelo decision, where I actually sided with the conservative justices. The public good argument didn't fly in that case for me - rather it seemed like a municipality caving to moneyed interests. Especially in an instance where the result of the decision is to force someone out of their own home so it can be developed into a condominium to be sold to wealthier people.

So I am not always kneejerk reactive against property rights, but an early fondness for William Faulkner and the Native American sensibility about the land and ownership do cause me to cast a wary eye toward those for whom property rights is their most burning issue. So while I won't be burning the paperwork that the bank has given me regarding my investment in a certain plot of land, I will always regard it with a certain bemused attitude toward the concept that human beings own little pieces of the earth's crust. Any piece of land is part of a system which takes precedence over anyone's putative ownership of that piece. An ownership system is fine as long as ownership obliges the owner to appropriate stewardship of their holding. The land after all will be around long after we depart.

Thanks to Land Use Watch from neighboring Oregon for the pointer to the recent encouraging poll.