Bill Quehrn: Those Unduly Burdened, Rise up and Fight!

"Where state agencies or local governments exercise regulatory authority affecting the use of private property, they must be sensitive to the constitutional limits on their authority to regulate private property rights" Attorney General's Office

Building Industry Association of Whatcom County Executive Director Bill Quehrn's latest rant on the Bellingham Tea Party site closes with the following statement, "It’s time to rise up and fight! CAPR’s time certainly seems to have come!" http://bhamteaparty.blogspot.com/2009/10/those-unduly-burdened-rise-and-fight.html#links



For those who are new to the discussion, the Cascadia Weekly recently reported that the Government Affairs Committee of the local BIAW chapter set up the local chapter of Citizens Alliance for Property Rights. (CAPR).

In his post, Quehrn asks, "Will somebody please explain to me what unduly burdened means? Whatcom County’s Home Rule Charter states in Section 1.11:

The rights of the individual citizen shall be guaranteed under the Constitutions of the United States and the State of Washington. No regulation or ordinance shall be drafted and adopted without consideration of and provisions for compensation to those unduly burdened.

I have brought this section of the Charter into the public debate on numerous occasions objecting to Whatcom County Council actions that certainly appear to be unduly burdensome. To my horror, everyone just looks at me sympathetically and tells me Section 1.11 has to do with so-called “takings” laws that the courts have never really defined so no one really understands what they mean."

I'm sorry, Bill. But I strongly disagree with your assertion that the current county council is adopting ordinances that are unduly burdensome. I also disagree with your unsupported claim that the courts have never really defined what constitutes a "takings law violation."

To help clarify our state and local government's role in protecting natural resources, let's take a look at the guidelines posted by the AGOs office to assist state agencies and local governments as they adopt rules and draft ordinances that may affect property rights and takings of property owners.

In 2006, Washington State Attorney General Rob McKenna prepared an advisory memorandum for State Agencies to assist them in avoiding Regulatory Takings: http://www.atg.wa.gov/uploadedFiles/Home/About_the_Office/Takings/2006%20AGO%20Takings%20Guidance(1).pdf

The Office of the Attorney General is directed under RCW 36.70A.370 to advise state agencies and local governments on an orderly, consistent process that better enables government to evaluate proposed regulatory or administrative actions to assure that these actions do not result in unconstitutional takings of private property.

Avoiding Unconstitutional Takings of Private Property

This Advisory Memorandum contains four substantive parts. The first part outlines a Recommended Process for Evaluating Proposed Regulatory or Administrative Actions to Avoid Unconstitutional Takings of Private Property utilizing the other substantive portions of the Advisory Memorandum.

The second part, General Constitutional Principles Governing Takings and Due Process, presents an overview of the general constitutional principles that determine whether a government regulation may become so severe that it constitutes an unconstitutional taking of private property or violates substantive due process rights. This discussion is derived from cases that have interpreted these constitutional provisions in specific fact situations.

The third part is a list of Warning Signals. This section provides examples of situations that may raise constitutional issues. The warning signals are useful as a general checklist to evaluate planning actions, specific permitting decisions, and proposed regulatory actions. The warning signals do not establish the existence of a problem, but they highlight specific instances in which actions should be further assessed by staff and legal counsel.

The fourth part is an Appendix, which contains summaries of significant court cases addressing takings law. The entire document is 48 pages long.
 http://www.atg.wa.gov/uploadedFiles/Home/About_the_Office/Takings/2006%20AGO%20Takings%20Guidance(1).pdf

Prior editions of this document were published in February 1992, April 1993, March 1995, and December 2003. Those editions are superseded by this document.

The Office of the Attorney General reviews the Memorandum on Takings on an annual basis and updates it when necessary to maintain consistency with changes in case law. No significant case law updates have been needed since the 2006 memorandum was issues. Accordingly, the 2006 Advisory Memorandum continues as the currently recommended basis for state and local government planners to evaluate proposed regulatory or administrative action so that unconstitutional takings of private property may be avoided.
http://www.atg.wa.gov/takingsmemo.asp 

Thank you, Attorney General Rob McKenna, for posting these documents. Transparent government helps citizens define and understand our laws.

In January, the County Council received a copy of the Whatcom Legacy Project: a survey of Whatcom County resident's values and goals related to long term plans. http://whatcomlegacy.org/land_use_survey.html 

Additional Background material:

Avoiding Regulatory Takings: 2006 Guidance Memo by the Washington ...

Advisory Memorandum: Avoiding Unconstitutional Takings of Private Property. The Office of the Attorney General is directed under RCW 36.70A.370 to advise state agencies and local ...
http://www.atg.wa.gov/takingsmemo.aspx

Advisory Memorandum 1 December 2006 STATE OF WASHINGTON OFFICE OF THE ATTORNEY GENERAL Advisory Memorandum and Recommended Process for Evaluating Proposed Regulatory or ...
http://www.atg.wa.gov/uploadedFiles/Home/About_the_Office/Takings/2006%20AGO%20Takings%20...

This Appertdix includes lists of some of the principal cases dealing with takings and/or related due process issues and a short summary of the result in each ... http://www.atg.wa.gov/.../Attorney%20General_s%20summary%20of%20significant%20takings%20cases

Public Records
Regulatory Takings ... Citizens can control their government only if they remain informed about the decisions. http://www.atg.wa.gov/PublicRecords/default.aspx

Open Government
Regulatory Takings ... Open Government Attorney General Rob McKenna believes access to open government is. http://www.atg.wa.gov/OpenGovernment/default.aspx

Open Government Internet Manual
Regulatory Takings ... Open Government Internet Manual. The Attorney General’s Open Government Internet.  http://www.atg.wa.gov/OpenGovernment/InternetManual.aspx

The Bellingham Tea Party site: http://bhamteaparty.blogspot.com/2009/10/those-unduly-burdened-rise-and-fight.html

Whatcom County Chapter of Citizens Alliance for Property Rights Policy 1 (CAPR) http://www.proprights.org/whatcom/capr_policy1.php

CAPR: "Although there are numerous individuals and organizations that are avid supporters of property rights in Washington State, they are a platoon of Lilliputians compared to the army of gigantic warriors arrayed against them and their right to own and control their property. The collectivists that fight to turn all property-use decisions over to the central planners have done a marvelous job of marshalling their minority of supporters."

Whatcom Legacy Project: a survey of Whatcom County resident's values and goals related to long term plans. http://whatcomlegacy.org/land_use_survey.html

"The Whatcom Legacy Project worked with Whatcom County to commission a scientifically-valid survey of Whatcom County residents’ values related to long range growth and land use. The telephone survey sought the opinions of 400 county residents. It was conducted by the firm Davis, Hibbitts and Midgall and funded largely by Whatcom County. It is one step in the process developed by WLP to have the people paint a portrait of what they want Whatcom County to look like for their children, grandchildren, and even great-grandchildren. We hope these results will be useful to citizens and local officials when discussing and deliberating over growth and land use issues."