HomeMy WebLinkAboutCOW 2006-09-25 Item 4 - Public Hearing - Oppose Initiative 933 "An Act Relating to Providing Fairness in Government Regulation of Property" COUNCIL AGENDA SYNOPSIS
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ITEM INFORMATION
I CAS NUMBER: 06-109 (ORIGINAL AGENDA DATE: 09 /25/06
AGENDAITEN' 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
ilftg Date 1BgDate alt Dad M Dare Mt Dak 3f Date 09/25/06 dltgDate
I SPONSOR Council Alger Adm Svcs DCD Finance Fire Legal P&R Police Pll I
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 draft 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
RECOMMENDATIONS:
SPONSOR /ADMEN.
CO\LIIIrPEE Consider resolution opposing Initiative 933.
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0 $0 $0
Fund Source: N/A
Comments:
MTG. DATE 1 RECORD OF COUNCIL ACTION j
09/25/06
1
1
1
MTG. DATE ATTACHMENTS
09/25/06 1 Memorandum re: Initiative 933 from Steve Lancaster. dated 7/12/06. 1 1
Initiative 933 (text) 1
Draft Resolution
Matrix indicating status of I -933 resolutions proposed in other cities
I Minutes, Community Affairs and Parks Committee meeting, 09/12/06.
1
DEPARTMENT OF COMMUNITY DEVELOPMENT
CITY OF TUKWILA
MEMORANDUM
TO• Mayor Mullet
City Council
Planning Commission
FROM. Steve Lancaster
DATE: July 12, 2006
SUBJECT Initiative -933
ISSUE
Initiative 933, known as the Property Fairness Act (copy attached) has been filed with the
Washington Secretary of State and will be on the statewide ballot in November, 2006. This memo
will provide a brief summary of its main provisions likely to affect Tukwila. Sources of additional
information on the initiative are also referenced.
SUMMARY OF KEY PROVISIONS
I -933 establishes three primary requirements:
1. Consideration of new ordinances. reeulations and rules.
I -933 requires that prior to enacting any new ordinance, regulation or rule, cities and other
agencies must "consider and document" several aspects of the regulation, including:
o the purpose of the proposed regulation;
o its impact on property rights, property use and value;
o estimated compensation that might be due property owners; and
o less restrictive alternative ways to accomplish the regulation's purpose.
This requirement is somewhat analogous to the requirement of SEPA that agencies evaluate the
environmental implications of certain types of proposed ordinances and other enactments prior to
acting upon them.
2. Compensation for decreased property value.
I -933 requires that cities and other agencies must either
o compensate an owner of property for any damage to the use or value of his/her property
resulting from the application or enforcement of any ordinance, regulation or rule; OR
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o choose to not apply or enforce the regulation giving rise to the reduction in value.
I -933 defines the term "damaging the use or value" to mean. "to prohibit or restrict the use of
private property to obtain benefit to the public," including but not limited to:
o "prohibiting or restricting any use or size, scope or intensity of any use legally existing or
permitted as of January 1, 1996,"
o "requiring a portion of property to be left in its natural state or without beneficial use to its
owner, unless necessary to prevent immediate harm to human health or safety;"
o "prohibiting maintenance or removal of trees or vegetation."
Restrictions that "apply equally to all property subject to the agency's jurisdiction," including the
following specific types of regulation, are not considered to damage the use or value of property,
and are therefore not subject to compensation or waiver:
o use restrictions "necessary to prevent an immediate threat to human health and safety;"
o enforcement of building and fire code structural standards;
o "limiting the location or operation of sex offender housing or adult entertainment;"
o requiring compliance with setback requirements that were established before January 1,
1996; and
o requiring compliance with certain chemical use restrictions, worker health and safety laws,
wage and hour laws and dairy nutrient management restrictions.
"Compensation" is defined to mean remuneration (payment) "equal to the amount the fair market
value of the affected property has been decreased by the application or enforcement of the
ordinance, regulation or rule." Where application or enforcement of an ordinance, regulation or
rule would require any portion of a property to be left in its natural state or without beneficial use
by its owner, compensation would include the fair market value of that portion of the property.
Required compensation would also include "any costs and attorneys fees reasonably incurred by
the property owner in seeking to enforce" the requirements of I -933
3. Grandfather rights.
Finally, I -933 requires that any new development regulation adopted under the Growth
Management Act (Chapter 36.70A RCW) "shall not prohibit uses legally existing on any parcel
prior to the adoption" of such new regulation. This provision appears to provide a perpetual
"grandfathering" for certain nonconforming uses.
ADDITIONAL INFORMATION
Considerable additional information is available on the web. Supporters of the initiative have
established a site at www.nrooertvfaimess.com. Opponents have established a website at
www.noon993.orz. Information is also available at the Association of Washington Cities website
at www.awcnet.ore (click on "Key Issues," then "Initiatives and at the Washington Chapter of
the American Planning Association site (www.washinaton- ana.oru).
Cc: Rhonda Berry, Jim Morrow; Diane Jenkins, DCD Staff.
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INITIATIVE 933
I, Sam Reed, Secretary of State of the State of Washington and
custodian of its seal hereby certify that, according to the records on
file in my office, the attached copy of Initiative Measure No 933 to
the People is a true and correct copy as it was received by this
office.
1 AN ACT Relating to providing fairness in government regulation of
2 property; adding new sections to chapter 64.40 RCW; adding a new
3 section to chapter 36.70A RCW; and creating new sections
4 BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON
5 INTENT TO REQUIRE FAIRNESS WHEN GOVERNMENT
6 REGULATES PRIVATE PROPERTY
7 NEW SECTION. Sec. 1. This act is intended to protect the use and
8 value of private property while providing for a healthy environment and
9 ensuring that government agencies do not damage the use or value of
10 private property, except if necessary to prevent threats to human
11 health and safety. The people also intend to recognize and promote the
12 unique interests, knowledge, and abilities private property owners have
13 to protect the environment and land. To this end, government agencies
14 must consider whether voluntary cooperation of property owners will
15 meet the legitimate interests of the government instead of inflexible
16 regulation of property.
17 The people find that over the last decade governmental restrictions
18 on the use of property have increased substantially, creating hardships
1
1 for many, and destroying reasonable expectations of being able to make
2 reasonable beneficial use of property Article I, section 16 of the
3 state Constitution requires that government not take or damage property
4 without first paying just compensation to the property owner The
5 people find that government entities should provide compensation for
6 damage to property as provided in this act, but should also first
7 evaluate whether the government's decision that causes damage is
8 necessary and in the public interest.
9 The people find that eminent domain is an extraordinary power in
10 the hands of government and potentially subject to misuse. When
11 government threatens to take or takes private property under eminent
12 domain, it should not take property which is unnecessary for public use
13 or is primarily for private use, nor should it take property for a
14 longer period of time than is necessary
15 Responsible fiscal management and fundamental principles of good
16 government require that government decision makers evaluate carefully
17 the effect of their administrative, regulatory, and legislative actions
18 on constitutionally protected rights in property Agencies should
19 review their actions carefully to prevent unnecessary taking or
20 damaging of private property The purpose of this act is to assist
21 governmental agencies in undertaking such reviews and in proposing,
22 planning, and implementing actions with due regard for the
23 constitutional protections of property and to reduce the risk of
24 inadvertent burdens on the public in creating liability for the
25 government or undue burdens on private parties.
26 FAIRNESS WHEN GOVERNMENT REGULATES PRIVATE
27 PROPERTY BY REQUIRING CONSIDERATION
28 OF IMPACTS BEFORE TARING ACTION
29 NEW SECTION. Sec. 2. A new section is added to chapter 64.40 RCW
30 to read as follows:
31 (1) To avoid damaging the use or value of private property, prior
32 to enacting or adopting any ordinance, regulation, or rule which may
33 damage the use or value of private property, an agency must consider
34 and document:
35 (a) The private property that will be affected by the action;
36 (b) The existence and extent of any legitimate governmental purpose
37 for the action;
2
1 (c) The existence and extent of any nexus or link between any
2 legitimate government interest and the action;
3 (d) The extent to which the regulation's restrictions are
4 proportional to any impact of a particular property on any legitimate
5 government interest, in light of the impact of other properties on the
6 same governmental interests;
7 (e) The extent to which the action deprives property owners of
8 economically viable uses of the property;
9 (f) The extent to which the action derogates or takes away a
10 fundamental attribute of property ownership, including, but not limited
11 to, the right to exclude others, to possess, to beneficial use, to
12 enjoyment, or to dispose of property;
13 (g) The extent to which the action enhances or creates a publicly
14 owned right in property;
15 (h) Estimated compensation that may need to be paid under this act;
16 and
17 (i) Alternative means which are less restrictive on private
18 property and which may accomplish the legitimate governmental purpose
19 for the regulation, including, but not limited to, voluntary
20 conservation or cooperative programs with willing property owners, or
21 other nonregulatory actions
22 (2) For purposes of this act, the following definitions apply:
23 (a) "Private property" includes all real and personal property
24 interests protected by the fifth amendment to the United States
25 Constitution or Article I, section 16 of the state Constitution owned
26 by a nongovernmental entity, including, but not limited to, any
27 interest in land, buildings, crops, livestock, and mineral and water
28 rights.
29 (b) "Damaging the use or value" means to prohibit or restrict the
30 use of private property to obtain benefit to the public the cost of
31 which in all fairness and justice should be borne by the public as a
32 whole, and includes, but is not limited to:
33 (i) Prohibiting or restricting any use or size, scope, or intensity
34 of any use legally existing or permitted as of January 1, 1996;
35 (ii) Prohibiting the continued operation, maintenance, replacement,
36 or repair of existing tidegates, bulkheads, revetments, or other
37 infrastructure reasonably necessary for the protection of the use or
38 value of private property;
3
1 (iii) Prohibiting or restricting operations and maintenance of
2 structures necessary for the operation of irrigation facilities,
3 including, but not limited to, diversions, operation structures,
4 canals, drainage ditches, flumes, or delivery systems;
5 (iv) Prohibiting actions by a private property owner reasonably
6 necessary to prevent or mitigate harm from fire, flooding, erosion, or
7 other natural disasters or conditions that would impair the use or
8 value of private property;
9 (v) Requiring a portion of property to be left in its natural state
10 or without beneficial use to its owner, unless necessary to prevent
11 immediate harm to human health and safety; or
12 (vi) Prohibiting maintenance or removal of trees or vegetation
13 (c) "Damaging the use or value" does not include restrictions that
14 apply equally to all property subject to the agency's jurisdiction,
15 including:
16 (i) Restricting the use of property when necessary to prevent an
17 immediate threat to human health and safety;
18 (ii) Requiring compliance with structural standards for buildings
19 in building or fire codes to prevent harm from earthquakes, flooding,
20 fire, or other natural disasters;
21 (iii) Limiting the location or operation of sex offender housing or
22 adult entertainment;
23 (iv) Requiring adherence to chemical use restrictions that have
24 been adopted by the United States environmental protection agency;
25 (v) Requiring compliance with worker health and safety laws or
26 regulations;
27 (vi) Requiring compliance with wage and hour laws;
28 (vii) Requiring compliance with dairy nutrient management
29 restrictions or regulations in chapter 90 64 RCW; or
30 (viii) Requiring compliance with local ordinances establishing
31 setbacks from property lines, provided the setbacks were established
32 prior to January 1, 1996.
33 This subsection (2)(c) shall be construed narrowly to effectuate
34 the purposes of this act.
35 (d) "Compensation" means remuneration equal to the amount the fair
36 market value of the affected property has been decreased by the
37 application or enforcement of the ordinance, regulation, or rule To
38 the extent any action requires any portion of property to be left in
39 its natural state or without beneficial use by its owner,
4
1 "compensation" means the fair market value of that portion of property
2 required to be left in its natural state or without beneficial use
3 "Compensation" also includes any costs and attorneys' fees reasonably
4 incurred by the property owner in seeking to enforce this act
5 FAIRNESS WHEN GOVERNMENT DIRECTLY
6 REGULATES PRIVATE PROPERTY
7 NEW SECTION. Sec. 3. A new section is added to chapter 64.40 RCW
8 to read as follows:
9 An agency that decides to enforce or apply any ordinance,
10 regulation, or rule to private property that would result in damaging
11 the use or value of private property shall first pay the property owner
12 compensation as defined in section 2 of this act. This section shall
13 not be construed to limit agencies' ability to waive, or issue
14 variances from, other legal requirements An agency that chooses not
15 to take action which will damage the use or value of private property
16 is not liable for paying remuneration under this section.
17 NEW SECTION. Sec. 4. A new section is added to chapter 64.40 RCW
18 to read as follows:
19 An agency may not charge any fee for considering whether to waive
20 or grant a variance from an ordinance, regulation, or rule in order to
21 avoid responsibility for paying compensation as provided in section 3
22 of this act.
23 NEW SECTION. Sec. 5. A new section is added to chapter 36.70A RCW
24 to read as follows:
25 Development regulations adopted under this chapter shall not
26 prohibit uses legally existing on any parcel prior to their adoption
27 Nothing in this chapter shall be construed to authorize an interference
28 with the duties in chapter 64 40 RCW
29 MISCELLANEOUS
30 NEW SECTION. Sec. 6. The provisions of this act are to be
31 liberally construed to effectuate the intent, policies, and purpose of
32 this act to protect private property owners
5
L
1 NEW SECTION. Sec. 7. Nothing in this act shall diminish any other
2 remedy provided under the United States Constitution or state
3 Constitution, or federal or state law, and this act is not intended to
4 modify or replace any such remedy.
5 NEW SECTION. Sec. 8. Subheadings used in this act are not any
6 part of the law.
7 NEW SECTION. Sec. 9. If any provision of this act or its
8 application to any person or circumstance is held invalid, the
9 remainder of the act or the application of the provision to other
10 persons or circumstances is not affected
11 NEW SECTION. Sec. 10. This act shall be known as the property
12 fairness act.
6
RESOLUTION NO. r y
C r
zt
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, CJ
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 concems govemment regulation
of private property
Description: This measure would require compensation when govemment
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 No
WHEREAS, it is the responsibility of the City of Tukwila to protect and 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, 1 -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
ve;
the use or value of private property" as defined by the initiative; and
WHEREAS, 1 -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
II■
WHEREAS, 1 -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, 1 -933 would dramatically lower the threshold for compensation
far below constitutional limits because virtually any limitation on the use of any kind of private
property could give rise to a claim for compensation for "damages" within the meaning of 1 -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 1 -933 do not include nuisance uses
that would typically be precluded from residential neighborhoods, and thus 1 -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, 1 -933 states that its provisions are to be construed liberally and its
limitations narrowly; and
WHEREAS, 1 -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 million 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 billion 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 1 -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, 1 -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,
thereby supplanting the will of the local community and curtailing 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 1 -933 would far exceed the requirements of both the
federal and state constitutions and cripple the fiscal ability of the City to provide needed
infrastructure, public services and public safety which are necessary to promote healthy and
prosperous communities; and
WHEREAS, 1 -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 properly" and °damaging the
use or value° as defined by the initiative, and given considerable ambiguity with regard to its
application and stated exemptions, 1 -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, BE IT RESOLVED that the City Council of the City of Tukwila,
Washington opposes adoption of Initiative Measure 933, and urges voters to vote °no° on 1 -933
due to the sweeping and detrimental impacts outlined above.
PASSED BY THE TUKWILA CITY COUNCIL this day of 2006.
Dennis Robertson, Council President
ATTEST:
Jane E. Cantu, City Clerk
APPROVED AS TO FORM:
Office of the City Attomey
Filed with the City Clerk:
Passed by the City Council:
Resolution Number
STATUS OF I -933 RESOLUTIONS UNDER CONSIDERATION
IN KING, PIERCE AND SNOHOMISH COUNTY CITIES
Jurisdiction I Public Hearing Date for action Date Resolution Opposes or
Date I Scheduled Adopted I Supports I=933?
1 Snoqualmie July 24 Aug. 15 Aug. 5 Opposes
2 Auburn Aug. 14 Aug. 21 Aug. 21 (Opposes
I 3 Newcastle Aug. 15 Sep. 5 Sep. 5 Opposes
1 4 1 Maple Aug. 28 Sep. 5 Sep 18 I Opposes
Valley
1 5 I Shoreline I Sep. 11 Sep. 11 Sep. 11 Opposes
I 6 Covington Sep. 12 Sep. 26
7 Burien Sep. 18 Sep. 18 Sep 18 Opposes
8 I Mountlake I Sep. 18 Sep. 18 Sep 18 Opposes
Terrace
9 Puyallup Sep. 18 Sep. 18 Sep 18 Opposes
10 Mercer 1 Sep. 18 1 Sep 18 Sep 18 Opposes
Island
11 I Lakewood I Sep. 18
12 Sammamish Sep. 19 Sep. 26
13 Kirkland Sep. 19 I Sep. 19
14 1 Bellevue Sep. 25
15 I Tulavila Sep. 25 I
16 Edmonds I Sep. 26 I Sep. 26
17 Buckley I Sep. 26 Sep. 26
18 I Mill Creek Sep. 26
19 Redmond Oct. 3
20 Kent I Oct. 4
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Community Affairs and Parks Committee
September 12, 2006 5:00 p.m.
Present: Joan Hernandez, Chair; Joe Duffie, and Pam Linder, council members.
Steve Lancaster, Director of Department of Community Development; Diane Jenkins,
Administrative Assistant to the Council; and Chuck Parrish, community member
Business Agenda:
A. Initiative 933, Property Rights
Mr. Lancaster provided factual informafion on Initiative 933, Property Fairness Act, which will appear
on the statewide ballot in November The Council has the option of taking no action, adopting a
resolution supporting 1 -933, or adopting a resolution opposing 1 -933. He referred to his memo and
summarized key provisions of this initiative. Ms. Hemandez asking about "grandfathering
Mr Lancaster explained that under the proposed initiative, growth management act (GMA)
regulations cannot prohibit use of property that was permitted before January 1, 1996. He noted that
the City's Comprehensive Plan was adopted in December 2005. Ms. Linder asked if the City would
be responsible to pay compensation for sensitive areas. Mr Lancaster noted that the City may not be
able to waive those regulations because it is a State requirement. Ms. Linder asked about new
ordinances and steps being taken for proactive code enforcement. Mr Lancaster noted that the
Council could be advised not to adopt new ordinances that may give rise to compensation issues. In
regard to code enforcement, it would depend on if the ordinance was in place prior to 1996. In some
instances, the City may approve certain uses rather than paying compensation. Mr Duffle felt it was
important to have the council take a position on this initiative. Mr Lancaster noted that proponents
and opponents of the initiative would be invited to come and speak. He will check with the city's
attorney to determine what steps that council can take regarding this initiative. The committee agreed
to direct staff to prepare a draft resolution opposing the initiative and present it at a Committee of the
Whole meeting for discussion.
Announcements:
Ms. Hernandez noted that the tentative date of October 12 scheduled with City of Tukwila's
Community Affairs Parks Committee and City of SeaTac's Land Use Parks Committee is in
conflict with the arrival of visitors from Tukwila's sister city, Ikawa, Japan. Therefore, she asked the
committee members if they would like to have altemative dates explored. It was agreed to
reschedule the joint meeting to another mutually agreeable date.
Adjournment: 5:40 p.m.
Committee Chair Approval
0.linutes by DJ. Reviewed by SL and RB.
le