Herbert and Eve Tollefson bought their eight acres in these forested hills to have a place to raise cattle and grow hay. Theirs was a small haven of rolling pastures and ash groves where children could hide on long summer evenings.
Then state Route 512 was built out from Tacoma, and the county dug a drainage channel to handle the diverted flows from Washington's perpetual drizzle. The ditch backed up; the ash grove and much of the southern pasture turned into a bog.
A few years ago, Herbert Tollefson was trying to make a path through the muck to get his tractor out to the back pasture. The county issued a stop-work order when he started dumping wood chips into the ooze. The bog, they said, was now a wetland.
With a third of his land a state-protected resource area, Tollefson has given up farming. The county recently responded by canceling the land's agricultural status and demanding $8,000 in back taxes. And with each advance of the autumn rains, Tollefson, now 77, watches his retirement slip away. "Basically, we've been losing the use of our land, inch by inch," he said, standing ankle-deep in the soggy plain that once was his pasture.
Stories like that of the Tollefsons are common in the communities of rural Washington, where moves to control growth and protect what remains of the Northwest's wild meadows and pine forests have planted the seeds of rebellion in the hearts of landowners facing a daunting era of regulatory controls.
The campaign for property rights has gained a foothold throughout rural America. But nowhere has its scope been so sweeping as in Washington, where a referendum on the Nov. 7 ballot proposes the most extensive property-rights measure ever attempted in the nation: a law requiring landowners to be compensated when any government regulation for public benefit diminishes the value of their land, no matter how small the loss. Economic impact assessments would require government regulators to seek the alternative least costly to private property.
Current law in most states allows property owners to sue the government if their property has been diminished by regulation, but only if the "taking" is substantial, heavily reducing its value or rendering it nearly useless.
The Washington state measure, which could cost local governments up to $11 billion in compensation costs, has sparked alarm among city officials, who see the possibility of undermining a generation of environmental regulations and, ultimately, a blow to the ability to control who builds what where.
Timber companies, developers and real estate organizations have poured nearly $1 million into the campaign, while some cities are considering temporary suspension of their land-use regulations to avoid the threat of lawsuits. Many cities expect to spend 10% or more of their budgets implementing the measure--or simply abandon regulation of wetlands, shoreline protection, stream-side buffers, habitat conservation and setbacks that become too expensive.
"Every person who's examined this has seen that Washington state's, on a number of scores, is the most extreme 'takings' bill proposed in any state, ever," said David Socolow of the American Resources Information Network, which is documenting the progress of property-rights legislation across the country.
Referendum 48, originally drafted as a voter initiative, cleared both houses of the Washington Legislature earlier this year before a panicked coalition of public interest and environmental groups collected 231,000 signatures in 77 days to send it back to the voters.
The ballot measure comes at a time when compensation for public "takings"--private property that is so regulated by government that it is effectively "taken"--has become a nationwide rallying cry with bipartisan roots. Compensation legislation introduced as part of the Republicans' "contract with America" cleared the House of Representatives and went to the Senate for hearings last week.
The House bill would require property owners to be compensated when certain federal laws diminish the value of their land by 20% or more, a measure that the Clinton Administration says would cost $28 billion over the next seven years.
Texas and Florida have already adopted far-reaching property-rights legislation, along with 16 other states that have some form of "takings" measures. A statewide ballot measure was rejected in Arizona last year. California has seen 17 different property-rights compensation bills introduced since 1993, none of them successful, though Gov. Pete Wilson has ordered state agencies to take the impact on private property into consideration when drafting regulations.
Only in Washington is there an initiative that would allow property owners to seek compensation for any reduction in property values for almost any regulation other than removing a public nuisance. Opponents are calling it a "legislative truck bomb."
Details in Dispute
Referendum backers insist that it would not be retroactive and would not apply to zoning laws. But opponents say the measure is so vague that it could apply to such basic regulations as the government's ability to prevent the construction of gas stations or casinos in residential neighborhoods, or to require filters on factory smoke stacks.
State Rep. Dale Foreman, the House Republican leader and a key backer of Referendum 48, raised the temperature of the debate recently when he suggested that orchard owners prevented from spraying pesticides on trees next to schoolyards would be entitled to compensation.
"On a pragmatic level, what you will see is the decimation of municipal government's ability to regulate land use for the benefit of its citizens," said Jim Hammond, an aide to Seattle Mayor Norm Rice. "It's entirely possible to conceive of a situation where a city could no longer have zoning laws that it did not pay for, and as such, the familiar notion of how we live together in peace and harmony is completely done away with."
The city of Wenatchee announced earlier this year that it was considering suspending all land-use regulations if the measure passes in order to avoid the threat of lawsuits. Planning director Bob Hughes said the central Washington city could no longer expect developers to pay for such public services as roads in new subdivisions.
"Referendum 48 is going to make the public not only live with new neighbors, but now they're going to have to start paying for them," Hughes said. "We're looking potentially at the disruption of the whole community scheme of planning and the allocation of land for various uses."
Yet many landowners say disruption is precisely what's called for in a state that since 1990 has had one of the most comprehensive growth-management laws in the country, a measure that designates areas where urban growth will occur and sets aside areas like slopes, wetlands, endangered species habitat and stream sides as protected resource areas.
"If they come in and say you can't use a third of your land because it's a wetland or there's eagles nesting on it, then that owner--where in many cases that property's his life's savings--should be paid," said John Huselton, mayor of Entiat, north of Wenatchee. He is one of the state's few mayors backing Referendum 48.
One Entiat resident, Mary Lou Cordell, said she could become one of the first claimants should the referendum pass. She planned to sell her vacant lot on the outskirts of downtown to a mobile-home park developer, but the deal fell through when the city refused to approve new zoning. Another such park is just across the street.
"It's nothing but a weed patch now, and it looks like hell," Cordell said. "I'm really torn with this referendum thing. I wouldn't want to see them put a sewer plant right next to me. But I think it's going to have to go to that. We're going to have to accept the fact that there's going to be things next to you that you don't want. Because the government is into us. They're living with us."
Questions and Doubts
Even some of those most opposed to the referendum admit that government has gone too far down the path of regulation. "I basically feel that we have kind of overstepped our bounds in 'takings' issues, and we have over-regulated in personal-property rights," said Don Davidson, mayor of suburban Bellevue on Puget Sound.
"Say you have somebody with R-5 zoning [for five houses]. Now it's time to build on it, and all of a sudden we say: 'You've got a little steep slope there, and you've got a little wetland there, and by the way, since we talked to you before, we have these regulations that say you've got to have a little setback there, and we're trying to make a riding trail behind your property so we need a trail easement there.' Pretty soon the person finds out they don't have R-5 at all, they've got R-3.5.
"What will happen," Davidson said, "is we'll have to respond by rethinking how we make these decisions."
The issue framed by the referendum debate, said land use lawyer James Tracy, is: "What is our community consensus on the function and purpose of land-use regulation in our society? That consensus itself is changing."
The old tension between individual liberty and community living has in modern cities come to include issues like wetlands, preservation of wildlife habitat, even what color you can paint your house, said Tracy, a former planning director in rapidly growing Kitsap County.
Ironically, opponents say, the referendum could wind up harming the property owners it purports to save. Strict zoning and construction laws that ensure that undesirable uses won't be built next door are one of the greatest guarantors of property values, said Seattle attorney Ellen Conedera Dial, who participated in a University of Washington study on the referendum's likely impacts.
The study, conducted by the Institute for Public Policy and Management, raised a host of unanswered questions about the measure: Will it apply retroactively? Will local governments have to pay landowners compensation for the enforcement of state and federal laws? Can local governments simply refuse to enforce these laws?
Keeping these doubts in mind, the study nonetheless estimated that annual enforcement of Referendum 48 would cost local governments from $278 million to $899 million a year, depending on the measure's ultimate sweep. Compensation costs would range from $3.8 billion to $11 billion.
Referendum backers complain that the study was funded by three well-known environmental foundations and can't be trusted. But in any case, they say, what if the numbers are right? "Think a minute," said Darrell Harting of the Snohomish County Property Rights Alliance. "If that's true, what that $11 billion really represents is how much money they've been stealing from individual property owners that were unlucky enough to have the so-called resource they were so concerned about protecting."
Harting, whose own property in the hills northeast of Seattle has been partially set aside as permanent forest land, said: "What we're talking about doing is getting back to constitutional government and stopping the scam. People have been lying about their objectives. One of those objectives is to drive people out of the rural areas and into the urban areas. . . . People are getting sick and tired of the government stealing their land by putting a signature on a document that says: 'OK, you bought and paid for that, your life savings is there, but you can't have it any more because we want it.' "
People like Harting could be in a minority. About three-fourths of Washington's registered voters live in urban areas, where environmental sentiment historically has run deeper. And if the vote shapes into the rural-urban split that many are predicting, the referendum could fail.
Tollefson already blames the city dwellers in nearby Tacoma for his problems. Flooding of a new apartment building and office complex on the growing urban fringe, he believes, prompted the county to seek to use his "wetland" as a flood storage basin to protect suburban development nearby.
If that's the case, said his lawyer, Richard Shepard of the conservative Northwest Legal Foundation, the government should pay.
"Regulation damages property. It's that simple," Shepard said. "All this [referendum] is going to do is encourage the government to exercise a little caution and circumspection before they go off enacting another regulation because somebody thinks it's a good idea. You want to pass a regulation? OK. Justify it."