I-933

Barbara Thom wants Snohomish County to give back the wetlands on her sheep pasture east of Snohomish.

Then she could build and sell a few houses on the property so she can retire.

“I want them to take their darn wetland stakes out of my property and let me enjoy it,” she said.

She is a staunch supporter of Initiative 933, the sweeping property rights measure promoted by the Washington Farm Bureau, a trade group representing many of the state’s farmers.

If approved by voters, I-933 would open the door for people such as Thom to file claims that challenge environmental laws and other government restrictions that prevent them from using their property.

Opponents fear the initiative is too vague, will harm the environment and will lead to claims for big payouts.

“It’s extreme,” said Everett City Councilman Paul Roberts, a critic of the measure. “It’s not about farming. It’s about blowing open the door to develop land.”

Critics also worry about two studies that estimate $8 billion is needed to cover claims by property owners who say they’ve lost land value during the past decade because of government regulations.

Thom, 61, who grows Christmas trees on her 20 acres, said the government needs to have the threat of possible claims hanging over its head.

“If it’s going to cost them money to take land away from us, maybe then they’re not going to take so much land,” said Thom, an author who also raised sheep for 18 years.

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Backers of I-933 call it the Property Fairness Initiative.

The measure grew out of complaints by farmers and property owners such as Thom who had their land locked up without compensation to protect fish and other wildlife.

Farmers are most vulnerable to regulations that protect the environment and endangered species, said Dan Wood, initiative sponsor and government relations director for the Washington Farm Bureau.

Such rules tie up swaths of fertile land near rivers and cut into the slim profit margin of struggling farmers, he said.

If the goal is to protect a stream, arbitrary buffers shouldn’t be placed on the property, said John Stuhlmiller, assistant director of government relations for the state farm bureau.

Instead, the government should work with the property owner to find a logical solution.

“(The government could say,) ‘OK landowner, can we work with you?’” Stuhlmiller said. “Maybe we don’t need 400 feet. We look and say, ‘Lo and behold, the best value is within the first 10 feet.’”

Then the government would pay the property owner for just those 10 feet, not 400 feet, he said.

Not likely, Councilman Roberts said.

That dreamy simplified world where litigation is avoided when good people get together and resolve differences with a firm handshake is laughingly naive, Roberts said.

Enterprising lawyers will litigate every open-ended phrase in the initiative, chasing after money in ways the Farm Bureau never could have imagined, he said.

Supporters say government agencies can simply change the rules rather than pay billions of dollars in claims – or better yet, negotiate a solution with the property owner before it gets to court.

“It may not involve any cash,” Wood said.

I-933 requires government to assess whether new and future rules would harm property value or use in the future.

The initiative also aims to protect personal property such as boats, stocks and bonds, and water rights.

Farmers in Snohomish County already have some protections from the “Right to Plow” initiative, approved by voters in 2001.

That law allows farm roads to be built without a permit and long-time farming can continue on some wetlands, said Tom Rowe, county planning and development services division manager.

The Snohomish County Farm Bureau works with the county to protect farmers from being over-regulated, Rowe said.

County Farm Bureau president John Postema helped draft the “Right to Plow,” and he says it works well.

But the longtime property rights advocate who owns Flower World nursery in Maltby said I-933 is needed because the county ordinance doesn’t go far enough.

I-933 is the Washington Farm Bureau’s second try at persuading voters to approve a property rights measure.

Referendum 48 was shot down in 1995 by 59 percent of voters. That measure, too, would have required the government to pay property owners if public regulations decreased property value.

Farm bureaus across the state back the new initiative.

Similar measures are sweeping the West and are headed for voters this election in California, Idaho and Montana, among other states.

The growing property rights revolution got a foothold in Oregon in 2004, when voters there approved Measure 37.

Just as I-933 would in Washington, the Oregon law gave property owners the ability to sue the government for lost value on their land as a result of government regulations.

As of October 2006, more than 2,700 Measure 37 claims have been filed, totaling more than $6.1 billion, according to Oregon state government officials.

But almost no money has been paid out. Instead, governments have waived land-use regulations, paving the way for potential development where it might not be expected: A pumice mine inside Newberry National Volcanic Monument, a subdivision on forestry land, a gravel mine amid small farms.

These land-use changes and almost every aspect of the law have been challenged in court.

“There’s a huge amount of uncertainty,” said Sheila Martin, director of the Institute for Portland Metropolitan Studies at Portland State University. Property owners and their neighbors are left in limbo.

For voters here, I-933 differs from Measure 37 in several ways.

In Oregon, instead of paying out large sums of money, cities and counties have been able to waive rules. Under I-933, the key environmental rules that would be challenged cannot be waived, said Keith Dearborn, a Seattle-based land use attorney.

Under Measure 37, the cost of filing and researching a claim is the responsibility of the property owner. With I-933, that cost is instead paid by cities, counties and state agencies – aka taxpayers.

If taxpayers benefit from restrictions on private property, they should pay, Snohomish County’s Postema said.

“The cost and the burden should be borne by the whole public,” he said.

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I-933 is much broader than protecting farmers from harmful regulations, critics say.

It would harm farming as a way of life, said County Councilman Dave Somers. It would help farmers who want to build subdivisions, or people who want off-reservation casinos.

“It’s not going to save farmers,” he said. “In my view, it will destroy them. We will no longer be able to restrict the number of homes, so farmland will be the first to go.”

The region’s careful rein on development could suffer, argues the Nature Conservancy of Washington, a branch of a group that works to preserve land and the environment in 50 states and 30 countries.

The initiative opens up farmland for possible development, said Len Barson, deputy director of external affairs for Nature Conservancy of Washington.

“Growth gets a toehold and makes it harder to maintain existing farmland,” he said. “This is not a good thing for farmers.”

Some farmers share that view.

“I don’t think the initiative is going to protect any farm ground,” said Mark Craven, who grows pumpkins on his 70-acre farm in Snohomish.

Roberts said the initiative could be applied to much more than farmland.

Everett’s downtown development plans, shoreline protection rules, adult entertainment restrictions, “all are thrown out the window with I-933,” Roberts said. “It really is a radical proposal under the guise of fairness.”

Most builders are on the sidelines in the debate. They said they have accepted the state’s growth policies, which steers high density growth to urban areas while limiting development on rural land.

“From our philosophy and from other builders and developers, the Growth Management Act’s not going anywhere,” said David Toyer, vice-president for Lake Stevens-based builder Barclays North.

“What are the merits of zoning laws if people can get around that by using 933?” he said.

The state laws aren’t perfect, but this initiative isn’t the answer, he said.

If it passes, “there’s going to be a court battle just like in Oregon,” Toyer said.

If payouts are made, it could take tax money away from other public services, Toyer said. And as people file claims, building permit counters could bog down, delaying builders.

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City and county governments and the state are bracing for the potential budget hit if I-933 passes.

“Cities would go broke all over this state, you can almost guarantee it,” Marysville Mayor Dennis Kendall said.

Everett, Mill Creek, Mountlake Terrace and Edmonds are among about 38 cities around the state that have all passed resolutions opposing I-933, according to the Association of Washington Cities.

Two studies put the government’s cost of paying I-933 claims at about $8 billion over five to six years.

One study, by the state Office of Financial Management, estimates that state agencies will pay out about $2 billion over six years. County governments would write checks of about $1.5 billion and cities even more, from $3.8 billion to $5.3 billion.

A University of Washington study breaks down the cost differently, but the effect is the same: the statewide bill will be $7.8 billion over five years.

Both studies poke holes in the Farm Bureau’s claim that government agencies can simply avoid such big payouts by waiving the offending rule.

Such waivers are illegal under the Growth Management Act, the state Environmental Policy Act and the Shoreline Management Act, land-use attorney Dearborn said.

Dearborn was one of several lawyers hired to review I-933 by the University of Washington’s Northwest Center for Livable Communities. The study was paid for in part by several anti-933 groups, but the university maintains that the study is neutral.

Waivers could occur only if I-933 had language in it that allows those environmental laws to be waived, and it doesn’t, Dearborn said.

The Washington Farm Bureau calls into question both studies, particularly the UW study.

“We vigorously reject what the UW study said,” Stuhlmiller said. “The organizations funding the ‘no’ campaign paid for it, and you get what you pay for.”

Billion-dollar payouts aren’t likely, argues the Washington Research Council, a business-friendly think-tank in Seattle. Government would simply change the rules before ever paying out such exorbitant sums.

If the financial burden “imposes too great a burden on the public,” the public will accept a loosening of the environmental laws, the research council writes in its own assessment of I-933.

“If something cannot happen, it will not happen,” said Dick Davis, Washington Research Council president. “That amount of money simply is not available.”

Dearborn agreed that big payouts could be avoided if the state Legislature rolls back key state environmental rules.

Without state rules, federal environmental regulations would kick in. Developers would have to take building projects to federal agencies where they would face more time, cost and uncertainty, he said.

Environmentalists say that rolling back environmental laws would erase progress made to limit growth and protect endangered species such as the chinook salmon and bull trout.

The Nature Conservancy’s Barson said the initiative will devastate the Growth Management Act, the state Environmental Policy Act, the Shoreline Management Act and critical-areas protections.

“Everything will be up for grabs,” Barson said. “The initiative is so vague and can be manipulated to apply to so many situations. The whole idea of certainty in land-use planning goes out the window.”

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Big-ticket payouts trotted out in the two studies prove that farmers have been harmed by government regulation to the tune of billions of dollars, Postema said.

That shows the public has gained at the expense of property owners, he said.

Dearborn agreed. The Growth Management Act and the state’s other key environmental laws have taken property from people without giving them proper payment.

Developers and other wealthy landowners can work through the system for money to pay for any land taken for environmental purposes.

Not so with farmers and other average property owners with limited resources who can’t play the system.

“We have forced people to make changes that they didn’t understand, that didn’t make common sense and that they were forced into,” Dearborn said. “This initiative is the natural outgrowth of that frustration. In some ways, it’s a cry for help.”

Still, I-933 overreaches, Dearborn said, doing more harm than good.

“It takes too big of a club to deal with the problem,” he said.

Herald writer Jackson Holtz contributed to this report.

Reporter Jeff Switzer: 425-339-3452 or jswitzer@heraldnet.com.