Takings Bills: Sane Second Thoughts

Article excerpt

Politically, this ought to be the season of seasons for the property rights movement that supporters claim is burgeoning across grassroots America.

So-called "takings" legislation, to force compensation to owners for loss of property value from any government regulation, was in the Republicans, "Contract with America." A bill swept through the House last spring to force such payments when federal laws protecting wetlands or endangered species reduce property values by 20 percent or more.

An even stiffer bill, with a 33 percent reduction threshold, narrowly passed the Senate Judiciary committee at the end of last year. And out in the states, a flurry of activity has been whipped up by disgruntled small landowners, conservative talk radio hosts, and lobbyist on the propaganda payrolls of big land owning, timber and development interests.

Some of the stories would grab anyone--the tale, for example, of the South Carolina wood lot owner who couldn't log because redheaded cockaded woodpeckers moved in.

All 50 legislatures have considered some form of property rights legislation in the 90's. Eighteen have passed statutes, usually so-called assessment laws to require a "takings impact analysis" before a new government regulation can go into effect.

"We're saying to government: Slow down and see if there's a better way to treat citizens. You can't just run blindly into new regulations," says Dan Wood, a property rights advocate from lumbering territory on the Olympic Peninsula.

But in the past year, states have gone even further than passing "look before you leap" assessment measures. New Mississippi and Louisiana laws mandate property owner compensation for loss caused by state agriculture and timber regulations. Florida is requiring mediation and allowing compensation in the case of "inordinate burden" from regulation. Texas didn't change compensation rules but will let owners out of regulations that would diminish their property value more than 25 percent.

There's a fly in the ointment: When voters are asked directly in referendums, the takings measures are in big trouble. A year ago mandatory impact assessments were defeated 6040 percent in Arizona. This fall, by an identical margin, Washington state voters turned down the strongest takings law ever--a measure to require an elaborate and costly system of assessments and then actual compensation to landowners when virtually any state or local regulations diminish the market value of their property.

What's sinking these measures? Three words tell the story: cost, litigation, bureaucracy. And cost--meaning higher taxes--may be the most potent. A study by the University of Washington's Institute for Public Policy estimated that over several years just the assessment costs borne by Washington local governments would run from $305 million to nearly $1 billion. …