Beware the consequences of this costly proposal

Here's the common picture of what Initiative 933 is all about. There is a piece of land. Its owner stands nearby saying that if a state regulation or local ordinance hurts the land's value, he should either be paid or the law should be waived.

What's missing from this picture, and virtually every analysis to date, is that the measure could apply to the car the person drives, the person's professional skills, his stocks and bonds, even his pets.

A close look at I-933 shows that it is so broadly written that it will apply not only to real estate but a wide range of private property. The cost of this measure could be even higher than the nearly $8 billion for real-property claims estimated by a team of economists and legal experts (on which I served) for a study by the University of Washington's Northwest Center for Livable Communities.

In the course of our legal analysis, I was struck by a little-noticed provision of the measure that would extend the "pay or waive" concept to personal property. This makes the measure far more sweeping, with much more impact, than other "property rights" initiatives like Oregon's Measure 37.

Washington state courts have interpreted personal property to mean anything of exchangeable value, whether it is tangible like a boat, or intangible like contract rights, trademarks or one's skill as a plumber. If the courts stick to the plain language of I-933, the measure would affect many areas of daily life, from pets, food and vehicles to insurance, health care and banking.

Animals and livestock could be subject to claims, including ownership of exotic animals and wildlife and certain types of dogs. An elk farm, barred from operating by Fish and Wildlife officials fearing for the health of the state elk herd, could sue the state and collect from the taxpayers. A breeder of fighting dogs could sue a city as long as he could show his animals pose no "immediate" threat to human health and safety.

Drug manufacturers, who now must follow procedures for storage, handling, sell dates, vendors and customers, could make claims. Food vendors could seek compensation for the cost of new rules for labeling, handling, storage and freshness dates.

Extensive regulations protecting where and when shellfish can be caught and how it is handled and sold could come under challenge. New pesticide regulations could also face claims.

Motor vehicles are regulated to control who can drive them and how they should be maintained. Vehicles in some counties must pass emissions tests to stay on the road. Someone using the car for work could claim these laws hurt the car's value and make a claim for compensation from the state.

I-933's pay-or-waive requirements don't stop at the tangible forms of property. They could also extend to intangible personal property, affecting the innumerable state regulations on business practices aimed at protecting consumers. These include insurance, health care, banking and finance. Things that we take for granted, like limits on parking in front of private businesses and pedestrian thoroughfares, could lead to claims against the public purse.

As a result, public officials could see not only pay-or-waive claims on billions of dollars of real property, but claims on dozens of types of personal property as well. And the "waive" provisions of I-933 will often be ineffective because most statutes governing use of tangible and intangible property don't allow state agencies or local governments to ignore their requirements.

It appears the drafters meant for I-933 to be sweeping, because they specifically excluded only a few laws, like those concerning worker health and safety, and wage and hour laws. Still, the application of I-933 to so many other varieties of personal property could have such large consequences that one wonders whether it really was intentional.

It is hard to say exactly how courts will interpret the ramifications of I-933. But it is fair to say that, if passed by voters in November, I-933 could significantly restrict the state and local governments' ability to protect consumers, human health and safety. And the litigation and claims could be a field day for plaintiffs' lawyers and a massive hit to taxpayers.

Hugh Spitzer is a public finance lawyer at Foster Pepper PLLC and an affiliate professor at the University of Washington School of Law.