INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION 

Mid-Year Seminar
April 30 - May 2, 2001   

  Taking Community Rights By Initiative:
Lessons From Oregon, Arizona and Washington

by
Doug Kendall
Carolyn Dorman 

Community Rights Counsel
1726 M Street, NW Suite 703
Washington, DC  20036
(202) 296-6889
www.communityrights.org  

© 2001 International Municipal Lawyers Association.  This is an informational and educational report distributed by the International Municipal Lawyers Association during its 2001 Mid-Year Seminar, held in Washington, DC, April 30-May 2, 2001.  IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.

TAKING COMMUNITY RIGHTS BY INITIATIVE:
LESSONS FROM OREGON, ARIZONA AND WASHINGTON 

"If [Measure 7] can pass in Oregon, surely it can pass anywhere."
Nancie Marzulla, Defenders of Property Rights    

By Doug Kendall and Carolyn Dorman

I.          INTRODUCTION 

Conventional wisdom armed opponents of Oregon's Ballot Measure 7 – an extreme "takings" initiative requiring compensation for any law or regulation that reduces property value – with three certainties.   First, the property rights movement in this country was in terminal decline, peaking in the early 1990s and slipping almost off the legislative radar screen since then.  Second, ballot initiatives were particularly unlikely vehicles for passage of takings legislation.  After all, the two prior takings ballot initiatives, put to voters in Washington and Arizona, had been soundly defeated.  Finally, Oregon, hailed nationwide as a leader in smart growth and effective land-use planning, seemed an enormously unlikely breeding ground for the rebirth of property rights extremism. 

On November 7, 2000, Oregon voters bucked conventional wisdom and approved Ballot Measure 7, enshrining in the Oregon Constitution, at least temporarily, the most draconian takings standard imaginable.  This result shocked even the measure's proponents, who professed to be promoting the measure simply as a way of "starting a conversation" on property rights. It immediately engendered several lawsuits challenging the constitutionality of the measure, which, for now, have successfully prevented the measure from going into effect.  Even if Ballot Measure 7 dies in court, however, its passage should serve as a wake-up call to supporters of sensible land-use planning throughout the country.  Nancie Marzulla is right: if Measure 7 can pass in Oregon, it can, under the right circumstances, pass almost anywhere. 

This paper examines both the successful campaigns to defeat property rights initiatives in Arizona and Washington and the unsuccessful campaign in opposition to Measure 7.  The paper attempts to extract from each of these efforts lessons that can be applied to future campaigns to defeat property rights initiatives and legislation. 

I.          ARIZONA – PROPOSITION 300 

From a community rights perspective, Proposition 300 came at the worst imaginable time, November 1994, in a very hostile battlefield, Arizona.  Thus, when Arizona voters rejected Proposition 300 by almost 20 percentage points, it surprised political consultants of all stripes and dealt a devastating blow to the property rights movement.  

A.        Proposition 300 

Proposition 300 landed before Arizona voters through a rather circuitous path.  The initiative began as legislation signed into law by Governor Fife Symington on June 1, 1992.[1]  Opponents rallied to gather enough signatures to put this legislation directly before the people.  By the time the signatures were verified, it was too late for the November 1992 election. The bill was thus presented on the November 1994 ballot as Proposition 300.  A vote for the Proposition was a vote in favor of the bill passed by the Arizona legislature. 

The descriptive title of Proposition 300 put to the voters read as follows: 

An act establishing guidelines for state actions which may affect the use or value of property; requiring agencies to evaluate the likelihood, costs and alternatives to state regulatory takings; requiring that mandatory criteria be met restricting state action that may have regulatory takings implications.   

Proposition 300 differed from Oregon's Ballot Measure 7 in two significant ways. First, most of the law’s requirements contained language limiting its application to state actions only.  (One section regarding the financial impact of licenses and permits did not include this limiting language, triggering fears by local officials that it would affect local land-use planning.)  Second, Proposition 300 didn’t provide a bright-line test for when compensation was due.  Rather, it required the Attorney General to construct guidelines concerning what constitutes a taking and required that those guidelines be far more stringent than the standard derived from U.S. Supreme Court precedents.[2]  It also mandated detailed hurdles that state regulators had to clear before imposing a new regulation affecting property use or value.    

B.        Campaign in Opposition to Proposition 300 

Opponents of Proposition 300 had nearly two years to raise money and frame and deliver their message to the public.  They used this time wisely, establishing an umbrella group called the Arizona Community Protection Committee (ACPC) to lead and organize the campaign, and conducting focus groups to help frame a message that could strike a cord with Arizona's conservative voters.  The message this coalition agreed upon was simple: Proposition 300 would mean more taxes, more bureaucracy and less protection of public health and safety.   

Newspaper stories produced during the Proposition 300 campaign demonstrate ACPC's success in staying on message.  Opponents of Proposition 300, whether local officials, union heads, church leaders or environmentalists, all echoed the same basic concerns.[3]  While proponents of the measure wanted to talk about wetlands laws and species protections, Proposition 300 opponents kept the focus on the measure's devastating effect on local governments and land-use planning, even though much of the funding for ACPC's campaign came from environmental groups.[4] 

Proponents of Proposition 300, organized under the mantle of the Arizonans for Private Property Rights (APPR), outspent the opposition by a margin of 2 to 1.[5]  Nonetheless, they were far less successful in getting their message out.  Part of the problem was the ballot measure itself, which was complicated and unclear in important respects.  ACPC pounced on these uncertainties, labeling the measure Byzantine and extreme.   APPR never was able to effectively define for the voters what the measure would and would not do.  

ACPC also effectively capitalized on several APPR missteps.  For example, supporters of Proposition 300 relied on property rights "horror stories" that did not withstand even light scrutiny.[6]  This enabled ACPC to label Proposition 300 as a solution in search of a problem.[7]  Similarly, on the eve of the vote on Proposition 300 an outspoken proponent filed an ill-advised takings challenge against Arizona for occupying his land while cleaning up a gas leak that threatened water supplies.[8]  Proposition 300 opponents responded by constructing a giant Frankenstein monster, illustrating how devastating expansive takings interpretations can be to public health and safety laws.[9]  This strategy earned ACPC invaluable free media state-wide, shortly before voting on the Proposition began.   

Finally, proponents of Proposition 300 failed to reach out to conservative icon Barry Goldwater to shore up his support.  This opened the door for ACPC to obtain from Goldwater a letter declaring that Proposition 300 was antithetical to Republican philosophy.  While Goldwater changed his mind after a visit by Governor Symington, serious damage was already done to the support for Proposition 300 among Arizona conservatives.[10]   

By developing an effective message, sticking to that message and capitalizing on their opponents' missteps, Proposition 300 opponents dealt the property right movement a devastating setback, defeating Proposition 300 by 200,000 votes.[11]   

C.        Lessons from Proposition 300 

The clearest lesson from Proposition 300 is that, with the right campaign strategy and enough time, property rights initiatives can be defeated anytime, anywhere.  It is hard to imagine a tougher time and place to defeat a takings initiative than Arizona in 1994.  Yet Proposition 300 was defeated and defeated soundly. 

A second lesson from Proposition 300 is: the simpler, the better.  By crafting a single, conservative message, ACPC was able to expand their support base far beyond their natural allies.  By religiously sticking to this message, ACPC was able to define in large part the playing field on which the fight over Proposition 300 was fought.   

III.       WASHINGTON – REFERENDUM 48 

            Shortly after the November 1994 elections, property rights activists convinced the Washington state legislature to pass wide-ranging takings legislation.  Using strategies similar to those employed in Arizona, community groups rallied voters to overturn this legislation, again by a wide margin, in an initiative in the 1995 general election. 

A.        Referendum 48 

Like Proposition 300, Referendum 48 in Washington State started in the legislature.  In the fall of 1994, property rights activists drafted a takings bill for presentation as an “initiative to the legislature.”[12] Timber, building and real estate interests contributed more that $250,000 in a last minute drive to get enough signatures to qualify the bill for the 94-95 session.[13] After the November 1994 election, the initiative passed easily and quietly.[14] Opponents then had 90 days after the legislature adjourned to gather enough signatures to refer the initiative to a popular vote.[15] 

Referendum 48 was similar to Oregon’s Measure 7 and went far beyond Arizona’s impact assessment bill.  State and local governments would have had to pay landowners when regulations or other actions reduced the value of their property, unless the activity was a public nuisance. As in Arizona, there was also a requirement to perform economic assessments of the impact of proposed regulatory measures.   Taxpayers would have paid for maps, plans, studies and reports used by government in decisions to restrict use of private property.[16] 

Because it was an initiative to repeal the takings bill, Washington’s campaign had the benefit of helping craft the ballot language that would get Referendum 48 defeated.[17]  The language Washington voters read on Election Day stated: 

The Washington State Legislature has passed a law that restricts land-use regulations and expands governments’ liability to pay for reduced property values of land or improvements thereon caused by certain regulations for public benefit. Should this law be approved or rejected? 

In marked contrast to Oregon Ballot Measure 7, Referendum 48 emphasized that planning would be restricted and that government would be liable when it acted for the public benefit.  In other words, Washington voters were informed, right on their ballots, of the most important negative impacts of the referendum. 

B.        The Campaign to Defeat Referendum 48 

Like Arizona, Washington’s campaign got off to an early start.  Even before the bill passed the legislature, the League of Women Voters spearheaded and organized the opposition.[18] Relying on over 10,000 volunteers, the League and supporting organizations gathered more than double the number of signatures needed to get the takings bill onto the ballot.[19] Eventually, the coalition forming around the League of Women Voters included such diverse groups as the Washington Senior Citizens Lobby, Washington Association of Churches, People for Fair Taxes and the Washington State Labor Council.[20]  

From its inception, a year before the vote on the measure, opponents of the referendum spread a simple message of dire consequences: “Either we end all zoning and land-use controls or we increase taxes astronomically.”[21] The campaign delivered this message through a large number of carefully chosen messengers.  The Washington Senior Lobby explained that seniors would pay higher taxes.[22] Local officials stressed the fiscal impact on strained local resources and wondered how to comply without suffering bankruptcy or repealing zoning codes.  Even some developers’ attorneys deemed the law “Draconian” and declared that it was not the solution.[23] 

Because Referendum 48 was more explicit than Proposition 300 regarding the obligation to pay compensation, it was possible for opponents of the measure to develop estimates of the fiscal impact of the Referendum.  The League centered its campaign around these cost estimates, which were released at strategic times throughout the campaign.  The first estimates came from the State Department of Trade and Economic Development, which analyzed the cost of the takings assessment portions of the measure and concluded that it would cost over $1 billion for just 14 local governments to perform the required analyses over the next six years. The state also estimated that assessments would cost just four state agencies $270 million over the next six years.[24] 

Local officials also chimed in.  For example, Pierce County Executive Doug Sutherland estimated the annual impact to be a quarter of the county’s budget.[25]  Other local officials simply declared that the costs would be astronomical and started to discuss waiving laws in order to avoid claims for compensation.[26]  Finally, and perhaps most importantly, in September a study commissioned from the University of Washington’s Institute for Public Policy and Management estimated that Referendum 48 would cost local governments $300 million to $1 billion annually for economic studies and leave them liable for as much as $11 billion in compensation.[27] 

These economic studies put the proponents of Referendum 48 on the defensive.  They found themselves defending a vaguely written bill that went against the property rights movement’s own purported principles of smaller government and lower taxes.  Although they denied that Referendum 48 would have such sweeping effects, they could not point to any limiting language to prove it.  Supporters denounced the billion dollar fiscal estimates as exaggerated, but could not point to studies of their own to counter the numbers.[28] 

C.        Lessons from Washington 

            On first blush, Washington Referendum 48 bears many similarities to Oregon Ballot Measure 7. Oregon and Washington are neighbors with similar political climates.  Referendum 48 and Measure 7 were similarly sweeping in effect.  The opponents of the Oregon initiative relied heavily on the experience in Washington in crafting their own opposition to Measure 7. 

On closer inspection, however, the differences between the campaigns far outweigh the similarities.  The first difference concerns control over the process.  Because takings opponents in Washington were using the initiative process to overturn legislation, they were able to influence the drafting of the ballot language put before voters.  The referendum put to Washington voters clearly identified the threat the measure posed to land-use planning and the potential consequences to "regulations for public benefit."  

Another critical difference was time.  Time gave organizers in Washington the opportunity to run the campaign they wanted.  They had three months of signature drives to refine their message and find out what worked best with voters.  They had the entire summer to fashion a coalition that could speak in concert when the media’s election coverage started in earnest in the fall.  The campaign's most visible messengers were not environmental groups, but rather seniors, unions, teachers, city managers and representatives of local PTAs.   

Finally, opponents of Referendum 48 also had the benefit of being on general notice. Takings was a national issue in 1995 and both sides clearly recognized what was at stake.   Opponents began preparing for battle on the issue shortly after the November 1994 election, as soon as property rights groups began petitioning for legislative action.[29]  The movement to repeal the initiative started fundraising even before the legislature’s vote in April.[30] Before the end of July, “No on 48” had collected nearly $113,000.[31]  More importantly, it had gathered over 200,000 signatures and spread its message to more than one-third of the voters it would need to defeat Referendum 48, all before anyone knew if it would be on the ballot. 

The result was another overwhelming defeat for a takings initiative.  Like Arizona voters, Washington voters rejected Referendum 48 by a 3 to 2 margin, and again dealt a devastating blow to supporters of extreme notions of property rights. 

IV.       OREGON – BALLOT MEASURE 7 

            A.        Ballot Measure 7 

            In contrast to Proposition 300 and Referendum 48, Oregon Ballot Measure 7 was proposed by a property rights group and presented directly to the voters.  Ballot measures have become a cottage industry in Oregon.  In the November 2000 election cycle, 51 petitions proposing voter initiatives had been approved for signature-gathering in Oregon.[32]  Ultimately, 26 of these measures garnered enough signatures to qualify for the ballot.[33] Many of these measures, like Measure 7, posed serious threats to state and local governance.  For example, Measure 91 was a tax cut initiative that would have cost the state government almost $1 billion in tax revenue. [34]   Measure 2 would have established legislative review of any administrative rule, simply upon the collection of ten thousand signatures.[35] Ballot Measure 7 was drafted by Stu Miller and his wife Becky Miller, assistant director of Oregon Taxpayers United, which also sponsored six other measures on the Oregon ballot in 2000.  Oregonians in Action, a property rights group, took the lead in the measure's signature drive.[36] 

            By proposing Measure 7, proponents of Measure 7 were able to shape the way the measure was presented to the voters.  The ballot title for the measure read: 

Amends Constitution: Requires Payment to Landowner if Government Regulation Reduces Property Value  

The ballot title echoed very closely the first paragraph of the measure drafted by Stu Miller.  The title made the measure appear simple, straightforward and eminently fair: if the government reduces your property value, it has to pay you.  The title gave Oregon voters no indication that the measure could effectively repeal land-use planning, zoning and other critical and widely popular health and safety protections.   

Ballot titles get drafted when they are first filed with the Secretary of State’s office for approval of signature-gathering.[37]  What became Measure 7 was submitted to the Secretary of State on March 10, 1999.[38]  The Secretary of State assigned a draft ballot title and summary on March 18, 1999 and noticed the proposed title and summary for comment.[39]  Comments were due by April 1, 1999.[40]  Only those commenting could challenge the ballot title in court.[41]  Thus, the last day to challenge the wording for the ballot title of Measure 7 was in March, 1999, sixteen months before the takings measure started garnering press coverage.  Not a single opponent of the measure commented on the proposed ballot title.[42]   

            B.        The Campaign to Defeat Measure 7

The campaign in opposition to Measure 7 appears to have been patterned after the successful campaign to defeat Referendum 48 in Washington.  Again a very broad coalition was formed, this time under the auspices of a group called the "No on 2 and 7 Campaign."  By Election Day this coalition included four Oregon Governors and groups as diverse as the Oregon Business Association, the Oregon Educational Association, the Ecumenical Ministries of Oregon, the United Seniors of Oregon and the League of Oregon Cities.[43]  The No on 2 and 7 campaign was also successful in raising money for their cause.  By election day, the campaign had raised over $1.8 million, over five times the amount needed by the Arizona Community Protection Committee to defeat Proposition 300 in 1994.[44]   

As in Washington, the No on 2 and 7 campaign focused on the potential costs of Measure 7.   Oregon election law requires that a state committee estimate the fiscal impact of each ballot measure.[45]  This estimate was included in the state-sponsored Voters’ Pamphlet, which is circulated to describe ballot measures.  Thus, by early August, opponents of Measure 7 were armed with the estimate that Measure 7 would cost Oregon taxpayers $5.4 billion per year in compensation claims, by far the highest price tag of any measure on the ballot.  Two thirds of this cost was projected to come from local governments.[46] Opponents of Measure 7 also commissioned their own economic impact assessment of the measure, conducted by ECONorthwest, an economics consulting firm.[47]  This estimate projected that, in the Portland area alone, taxpayers would have to spend as much as $7 billion to enforce the region's urban growth boundary.[48]   

From the beginning, however, the No on 2 and 7 campaign had trouble getting its message out.  The Portland Oregonian, the state’s largest paper, briefly mentioned the signature campaign twice before August 2, 2000, just three months before the election.  Even then, the measure was listed 24th in a list of 26 measures on the November ballot.  News coverage remained very sporadic until shortly before the election, when public opinion polls showed that the measure was in danger of passing.[49] 

Moreover, the coverage the measure garnered did not effectively convey the campaign's message or display the campaign's most effective messengers.  Most of the early stories on Measure 7 were presented as back-and-forth exchanges between supporters and opponents of the measure.  These stories most frequently pitted Larry George of Oregonians in Action against Randy Tucker of 1000 Friends of Oregon and the debate was frequently cast by newspapers as a debate over "actions to protect wildlife and open spaces."[50]  While the cost estimates for Measure 7 did get a fair amount of attention, these estimates were almost always followed by lengthy explanations by Measure 7 supporters about why these estimates were overstated or inaccurate. 

Measure 7 did not start getting sustained media attention until early October, when polls began showing the public evenly divided over the measure.  At that point, the press took notice and the opposition campaign kicked into high gear.  The campaign hit the airways with paid advertisements, generated numerous favorable opinion pieces and editorials, and organized an extensive door-to-door campaign to reach the voters.[51] 

This effort was too little too late.  Benefiting from a simple message and a favorable ballot title, proponents of Measure 7 simply rode out the storm.  They calmly deemed the opponents' claims of Armageddon overwrought and repeatedly asserted that Measure 7 was narrow and necessary to ensure due compensation.  They were rewarded on election day when Measure 7 passed by nearly 100,000 votes (53% to 47%). 

            C.        Lessons from Measure 7 

            The most obvious lesson to emerge from the passage of Measure 7 is that the reports of the demise of the property rights absolutism are greatly exaggerated.  If a measure as extreme as Measure 7 can pass in Oregon, then, given the right set of circumstances, passage of some form of takings legislation is possible just about anywhere.  This is not to say the property rights movement will ever again regain the prominence it reached in 1995, when federal legislation seemed imminent and bills were racing through state legislatures.  But Measure 7 does show that property rights extremists remain a force that should not be taken lightly.   

Correspondingly, opponents of extreme takings legislation should never again feel justified in complacency in the face of a property rights initiative.  Even to the experts, complacency seemed well-founded in Oregon.  In the words of Randy Tucker of 1000 Friends of Oregon: “This definitely slipped in under the radar. Many people didn’t believe it possible Oregonians would pass something that basically repeals land use planning.”[52]  National experts such as John Echeverria of the Environmental Policy Project dismissed Measure 7 as “the last gasp of a bad idea."[53]   Even Measure 7’s own sponsor seemed resigned to defeat, stating that he “doubt[ed] if this will pass the first time around” and saw it as “a conversation starter.”[54]  In hindsight, complacency was not justified in Oregon.  It is inexcusable in Oregon and elsewhere in the future. 

The success of Measure 7 also suggests that the property rights movement has stumbled upon a message that is simultaneously extreme and simple to convey.  Both Proposition 300 and Referendum 48 included complicated and expensive requirements that the government analyze the impact of their actions to assess whether takings occurred.  These assessment provisions were attacked as bureaucratic nightmares that violated the property rights movement's own professed commitment to smaller government.  Measure 7 jettisoned this assessment process in favor of a claims procedure that permitted any landowner to bring a claim seeking any reduction in property value caused by any regulation.  The message of Measure 7 supporters was simple: government should pay when it reduces property value. 

Opponents of Measure 7 needed to respond with a single, focused message of their own.  This message never got out.  The reasons were largely beyond the campaign's control.   Time was very short and the media was focused elsewhere.  But in responding to similar takings campaigns in the future, opponents must go back to the message drawing board.  The strategies that worked in Arizona and Washington failed in Oregon, even though the political climate was better and the measure was more extreme.  As G.K. Chesterton once observed, it is sometimes difficult to defend a proposition of which you are entirely convinced.  In his words, the "very multiplicity of proof which ought to make reply overwhelming makes reply impossible."[55]   

Measure 7 passed in part because of this problem.  Opponents aired one dire warning after another – "it will cost billions of dollars," "it will gut Oregon's land-use planning," "it will destroy Oregon's natural environment" – but never found a message that convinced Oregon voters.  In the future, polling and focus groups must be again employed to distill a new strategy to meet the new tactics of the property rights movement.  

A final clear lesson from Oregon Measure 7 is that opponents of takings initiatives must be vigilant in scouring notices of proposed ballot titles. The process for challenging ballot titles in Oregon illustrates that this can be a trap for the unwary.   But favorable initiative titles helped immeasurably in defeating Proposition 300 and Referendum 48.  Conversely, opponents of Measure 7 blame the ballot title for the passage of Measure 7.[56]  On a ballot as cluttered as Oregon's, the ballot title was probably all that many voters knew about the proposed measure.  Opponents must ensure that the wide-ranging effects of similar takings measures are conveyed to voters in future ballot titles.    

V.        CONCLUSION 

Perhaps the single greatest indicator of the threat posed by passage of Measure 7 is the speed with which the opposition began to splinter in the wake of the measure's passage.  Within weeks, local officials, terrified of being driven to bankruptcy by Measure 7 claims, began drafting ordinances that would have permitted waiver of enforcement of land-use controls.  1000 Friends of Oregon responded by suing these local governments, demanding that they comply with existing law even if it meant paying compensation claims.[57]  Things got ugly, quickly. 

Luckily, the opposition stayed united on one front – a court challenge to Measure 7 – and this challenge has successfully blocked the implementation of the Measure.  In February, an Oregon trial court struck down Measure 7, ruling that it violates several requirements for amending the Oregon Constitution.  This ruling is on appeal, but opponents are now cautiously optimistic that the Measure will never take effect.  At the very least, this legal challenge should delay implementation until close to the time when a ballot measure repealing Measure 7 can be placed in front of Oregon voters.   

The passage of Oregon Measure 7 provides a needed wake-up call for proponents of smart growth, land-use planning and environmental protection who have grown complacent as a result of repeated victories over property rights extremists.  The best news is that this wake-up call may not come at the cost of devastating land-use planning in Oregon.    

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