HomeMy WebLinkAboutReg 2006-10-02 Item 6C - Resolution - Oppose Initiative 933 "An Act Relating to Providing Fairness in Government Regulation of Property* COUNCIL AGENDA SYNOPSIS
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ITEM INFORMATION
CAS NUMBER: 06-109 I ORIGINAL AGENDA DAI'E: 09/25/06
AGENDA ITEM TITLE Resolution opposing Initiative 933, entitled An Act Relating to Providing Fairness in
Government Regulation of Property."
CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other
Mtg Date Mtg Date lbltg Date 10/02/06 Mig Date Mtg Date Mtg Date 09/25/06 Mtg Date
SPONSOR Council Mayor Adm Svcs DCD Finance Fire Legal P&R Police PW
SPONSOR'S Initiative 933 has been filed with the Washington Secretary of State and will be on the
SUMMARY statewide ballot in November, 2006. The attached resolution would oppose the Initiative
and urge voters to vote "no."
REVIEWED BY COW Mtg. CA &P Cmte F&S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 09/12/06; 09/25/06
RECOMMENDATIONS:
SPONSOR /ADMIN.
COMMTI rEE Consider resolution opposing Initiative 933.
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
Fund Source: N/A
Comments:
MTG. DATE 1 RECORD OF COUNCIL ACTION
09/25/06 I Held public hearing and discussed draft resolution
MTG. DATE ATTACHMENTS
09/25/06 Memorandum re: Initiative 933 from Steve Lancaster, dated 07- 12 -06.
Initiative 933 (text)
Draft Resolution
Matrix indicating status of I -933 resolutions proposed in other cities
Minutes, Community Affairs and Parks Committee meeting, 09/12/06.
10/02/06 "Fiscal Impacts of Initiative 933" prepared by Tukwila DCD (per Council request)
Resolution
Fiscal Impacts of Initiative 933
City of Tukwila, Washington
Prepared by Tukwila Department of Community Development
Note: These estimates were prepared in response to a request from the Office of Financial
Management for purposes of completing a fiscal analysis of the impacts of I -933. These
estimates are preliminary only, and are based in part upon a very cursory review of recent
development activity. The assumptions used to obtain the estimates may change depending on
court or other interpretations of I -933, should it pass. This information is offered for
informational purposes only. It is not intended as an expression of support or opposition to the
initiative.
Added costs for the Property Rights Analysis reauired by Section 2(1).
The analysis requires that an agency "consider and document" a number of things prior to
enacting certain regulations. Tukwila typically "considers" items a through g for any such
regulation, but documentation of such considerations varies. I -933 will require additional staff
time to document such findings. The amount of time, and therefore costs, will vary widely with
the complexity of the proposed regulation. It should be noted that the issues of nexus,
proportionality, "economically viable use" and "fundamental attributes of ownership" (items d
through f) are frequently addressed by providing some "case -by- case" review and adjustment
mechanism, such as a reasonable use allowance, variance or waiver.
The cost of estimating compensation that may be due under any proposed new regulation will
vary dramatically with the specific nature of the proposed enactment and with the "level of
confidence" required of such an analysis. It will require expertise and data that would not be
readily available "in house." We would in most cases need to acquire outside expertise through
consultant contracts or by other means. Tukwila is currently preparing a subarea plan and
development regulations for our designated "urban center" comprising approximately 150
parcels over roughly 1000 acres. We estimate the cost of consultant assistance to prepare a
reasonable estimate of compensation for this proposal to be in the neighborhood of $35,000.
Add to this the cost of consultant selection, contract administration and oversight and the total
cost to the city would likely exceed $50,000. Costs for less complex analyses might range from
$5,000 to $10,000. The number of times per year such analysis would be required is uncertain. I
would expect relatively few occurrences due to a likely "chilling effect" on new initiatives.
Added costs for Compensation reauired by Section 3.
Most of Tukwila's plans and regulations relating to the "use or size, scope, or intensity of use"
and governing "setbacks from property lines" were enacted prior to January 1, 1996. We would
therefore expect the bulk of clams for compensation to relate to our critical areas regulations
"SAO and Shoreline Master Program requirements.
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It is assumed for the purposes of this analysis that 1) "waivers" will be granted in those
cases where significant compensation would be due and the city has discretion, and 2) no
new ordinances, regulations or rules likely giving rise to significant levels of compensation
will be enacted if I -933 is approved and upheld. These assumptions may or may not be valid.
Recent development activity suggests that implementation of Tukwila's SAO prevents the
development of, on average, approximately 1 acre of environmentally critical area and 3 acres of
associated buffer per year. Assuming an average value of $20 per square foot, compensation for
continued implementation of Tukwila's SAO could cost, on average, approximately $3.5 million
per year (2006 dollars). This amount might be reduced by something less than 25% if Tukwila
requires that development applicants obtain any applicable federal permits (e.g. Section 404
Clean Water Act) prior to receiving `local permits.
Estimates of compensation due relating to implementation of the Tukwila Shoreline Master
Program are more difficult. Tukwila has several miles of Green and Duwamish River shoreline,
portions of which arguably have limited "beneficial use to its owner" under current regulations.
It is difficult to assess the level of market demand and property owner interest in developing such
property because this has not been a reasonable possibility since the 1970's.
Added costs for Litigation.
Unable to respond at this time.
Added costs to Establish Appraisal on Restricted Land.
Tukwila processes development proposals involving approximately 100 parcels per year
(excluding tenant improvements, interior remodels and other minor projects). Assuming that
15% of these projects involve regulations that could potentially give rise to a claim for
compensation, appraisals would be required for approximately 15 parcels per year. At an
assumed $7,500 per appraisal, the estimated annual cost to Tukwila would be approximately
$112,500 (2006 dollars).
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City of 'Tukwila
Washington
Resolution No.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, OPPOSING INITIATIVE 933, ENTITLED "AN ACT
RELATING TO PROVIDING FAIRNESS IN GOVERNMENT
REGULATION OF PROPERTY."
WHEREAS, Initiative 933 (1-933) will be presented to the voters of the State of
Washington at the general election on November 7, 2006, with the following official
Ballot Title and Description:
Statement of the Subject Initiative Measure 933 concerns government
regulation of private property.
Description: This measure would require compensation when government
regulation damages the use or value of private property, would forbid
regulations that prohibit existing legal uses of private property, and would
provide exceptions or payments. Should this measure be enacted into law?
Yes I No
WHEREAS, it is the responsibility of the City of Tukwila to protect and
p ty ty p preserve
the health, safety and welfare of its citizens; and
WHEREAS, it is the further responsibility of the City of Tukwila under the Growth
Management Act, the Shoreline Management Act, the State Environmental Policy Act,
the National Flood Insurance Program, the Endangered Species Act and other state and
federal mandates to manage growth and development in ways that protect the
environment, while promoting public safety and the economic and social well -being of
the community; and
WHEREAS, meeting the aforementioned responsibilities necessarily involves
placing reasonable restrictions on the development and use of private property; and
WHEREAS, I -933 would require the City to decide, on a case -by -case basis,
whether to enforce or waive its duly enacted ordinances, rules and regulations if they
result in "damaging the use or value of private property" as defined by the initiative;
and
WHEREAS, I -933 would require the City to pay compensation to the owner of
private property if it decides to apply or enforce such duly enacted ordinances, rules
and regulations; and
WHEREAS, I -933 defines the term "damaging the use or value of private property"
to mean "to prohibit or restrict the use of private property to obtain benefit to the
public;" and
WHEREAS, because of the breadth of I -933's definition of private property, and
because its definition of "damaging the use or value" of private property includes no
minimum threshold for the reduction of use or value, I -933 would dramatically lower
the threshold for compensation far below constitutional limits, because virtually any
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limitation on the use of any kind of private property could give rise to a claim for
compensation for "damages" within the meaning of I -933, regardless of the importance
of the public protection achieved by such limitation or the uses or values remaining to
the property owner; and
WHEREAS, the exceptions listed in Section (2)(c) of I -933 do not include nuisance
uses that would typically be precluded from residential neighborhoods, and thus I -933
would authorize claims for payment or waiver for City regulations that protect
neighborhoods from a wide variety of obnoxious land uses and activities that would
seriously degrade the quality of life and property values in such neighborhoods; and
WHEREAS, I -933 states that its provisions are to be construed liberally and its
limitations narrowly; and
WHEREAS, I -933 would require agencies such as the City of Tukwila to undergo a
lengthy and costly pre enactment process to document potential impacts of new
regulations upon the use and value of private property; and
WHEREAS, many of the private property restrictions enforced or applied by the
City of Tukwila implement mandates of the State of Washington; and
WHEREAS, the Association of Washington Cities has estimated that the statewide
administrative cost to cities alone would be between $60 and $76 million each year,
while the statewide cost to cities for paying off claims for actions /conditions enforced
over the period of 1996 to 2006 would be between.$3.5 and $4.5 billion; and
WHEREAS, the only alternative to payment of compensation provided by 1 -933 is
to issue site specific waivers from regulations, which will lead to significant inequities
among neighboring property owners and incompatible growth; adversely affect the
value and use of adjacent properties; and will likely give rise to lawsuits and claims for
compensation from adjacent property owners; and
WHEREAS, local governments may not have the legal authority to waive certain
regulations on a parcel -by- parcel basis; and
WHEREAS, the Washington Farm Bureau, sponsor of I -933, has acknowledged that
the Initiative does not affirmatively grant any authority to waive the enforcement or
application of any ordinance, regulation or rule; and
WHEREAS, I -933 would unreasonably constrain the City of Tukwila s
constitutional authority to adopt and enforce reasonable land use development
standards to mitigate traffic impacts; assure appropriate building height and lot
coverage maxima; provide for the preservation of open spaces, and protection of
environmentally sensitive areas; and other general development regulations necessary
to promote the public health, safety and welfare. I -933 would thereby supplant the will
of the local community and curtail the police power authority granted to the City
Council by the Washington Constitution (Article XI, Section XI) to adopt and enforce
sound land use, zoning, growth management and planning, critical area, water quality
and shoreline management, and other measures through an open public process; and
WHEREAS, the length and complexity of the aforementioned and required pre
enactment process, and the requirement to process claims for damages would shift City
resources and staff time away from reviewing and processing all other permits and
force the City to concentrate on mitigating the City's liability, to the detriment of the
City's existing permitting and other obligations; and
WHEREAS, the cost of processing and paying compensation for the enforcement of
reasonable development regulations under I -933 would far exceed the requirements of
both the federal and state constitutions and cripple the fiscal ability of the City to
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provide needed infrastructure, public services and public safety, which are necessary to
promote healthy and prosperous communities; and
WHEREAS, I -933 conflicts with the City's and its citizens' vision and goals related
to growth management and environmental protection as reflected by the Tukwila
Comprehensive Plan—which was developed through open and extensive public
participation—and does so in a manner that will benefit only a few at the expense of the
greater community; and
WHEREAS, the City supports the benefits of balancing the general public welfare
and private property rights; and
WHEREAS, given the broad scope of the terms "private property" and "damaging
the use or value" as defined by the initiative, and given considerable ambiguity with
regard to its application and stated exemptions, I -933 will likely stimulate considerable
litigation and uncertainty; and
WHEREAS, on September 25, 2006, the Tukwila City Council held a public hearing
on Initiative Measure 933 pursuant to RCW 42.17.130 (1), which permits a City Council
to adopt a resolution in support, or in opposition to a ballot proposition, so long as
there is notice of the meeting and the public is afforded the opportunity to express
opposing views;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
The City Council of the City of Tukwila, Washington opposes adoption of Initiative
Measure 933, and urges voters to vote "No" on I -933 due to the sweeping and
detrimental impacts outlined above.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON,
at a Regular Meeting thereof this day of 2006.
ATTEST /AUTHENTICATED:
Dennis Robertson, Council President
Jane E. Cantu, CMC, City Clerk
APPROVED AS TO FORM BY:
Filed with the City Clerk:
Passed by the City Council:
Office of the City Attorney Resolution Number:
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