Those Unduly Burdened, Rise and Fight!
By Bill Quehrn 10/30/09
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.
What’s to understand? If the county decides building a road across your land is in the public good, your property is legally condemned, you get paid for it, and you are absolved of any further responsibility for it.
However, if the county decides as a public good that some of your land must be placed into critical area, set-back, or wetland status you don’t get a dime for it, you lose the value it once had, you still must pay taxes on it, maintain it, and you’re still legally responsible for it, even though it essentially has become public land.
A Washington State Attorney General Advisory Memorandum, issued by Attorney General Rob McKenna, notes that while government regulation of private property is a necessary and accepted aspect of modern society, some limits do apply. Generally a “taking” occurs when government regulation or action permanently deprives an entire piece of property of all economic utility short of nuisance violations or other extreme cases.
However, Mr. McKenna’s Memorandum further notes that a regulatory taking may occur when a government regulation goes so far as to acquire a public benefit (rather than preventing some harm) in circumstances where fairness and justice require the public as a whole to bear that cost rather than the individual property owner. He also notes that in some cases the state or federal constitutions may trump a local government action and require compensation to an aggrieved --- make that an unduly burdened --- property owner.
Courts have generally tended to favor the police powers of municipalities in lawsuits where a regulatory taking, or what is also called a substantive due process violation, has occurred. That leaves the legal burden on the property owner, who is the very one claiming they are already unduly burdened by the government action, to prove a taking of any degree has occurred. Where’s the “fairness and justice” in that?
Whatcom County voters did not add Section 1.11 to the Charter or approve a subsequent revision of the section with the idea that county government officials could ignore it anytime they found it to be an inconvenience. However, recent actions by county government strongly suggest that it is time individual citizens … and even our county’s small towns and other municipal jurisdictions … start reminding Whatcom County’s elected and appointed officials that they will not be “taking” this kind of burdensome abuse or disregard of our Home Rule Charter any longer.
It’s time to rise up and fight! CAPR’s time certainly seems to have come!