County’s Hands Tied on Excessive Forest Clearing

July 9, 2008

RCW 82.02.020 is an example of the ways in which the stong hand of special interest lobbies in Olympia affect folks in Washington. This law says in pertinent part that

no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

Meanwhile King County adopted its Clearing and Grading Critical Areas Ordinance in 2004 pursuant to the Growth Management Act (RCW 36.70A.060(2)) which required it to adopt regulations to protect its critical assets. Generally speaking the ordinance prohibited clearing more than 50% of rural lots with a number of qualifications and exceptions.

Before adopting this regulation the County undertook a number of studies and consulted with experts to verify that excessive clearing had negative impacts on stream health, wildlife, and critical aquifer recharge areas in the County.

The ordinance was challenged by a property rights groups that contended that the blanket prohibition against clearing was an improper indirect charge under RCW 82.02.020.

The County said that this was not a tax but a justified regulation, presenting 24 journal articles and several experts who identified the harm sought to be avoided and vouched for the efficacy of the regulation in terms of avoiding the harm.

The trial court sided with the County but the Court of Appeals did not. In Citizens Alliance for Property Rights v. Ron Sims

the court held that the bar against excessive clearing was prohibited by statute. The decision seems quite sound to me, relying on well established pro-development case law. Without disregarding precedent, the court could do little else. (Personally I would like to see the court start whittling away at the existing law.)

What is important here, I believe is that local decision regarding the environment, urban sprawl, habitat, and water issues are fairly commonly thwarted by the state legislature which in turn is rather shockingly influenced by special interests, particularly the building industry which pushed through the legislation giving developers a preferred tax status.


The Climate Security Act: Where are our Leaders?

June 6, 2008

The Senate could not muster the votes to block a filibuster of the Climate Security Act and with that Harry Reid took the bill off the floor, ending any realistic prospect of passing the first global warming legislation of note.

To some degree this fate is a product of the polarized atmosphere, not just in our Congress, but throughout the country. With roughly 80% of our senators claiming to be creationists (who tend to disregard scientific conclusions), the “base” oriented Republicans could not accept the bill without risking the alienation of critical constituents, including powerful utility companies. (This is the reason that McCain distanced himself from the bill after sponsoring it’s predecessor six years ago.)

On the other hand the bill’s heavy backing of the nuclear industry alienated many environmental groups and several senators in favor of legislation addressing global warming risked alienating environmental interests for backing the bill as it was presented on the floor.

Before it became the captive to various interest groups Congress was regarded as a sort of milieu of compromise. Congressional leaders were people who could get deals done through astute negotiations and compromise. Now, with the various rating systems which rate according to yes or no votes on designated bills, the notion of succeeding through compromise is being replaced by evaluation according to the zealous advocacy of special interests. This is a good example of how the people fare in such a system.


Washington State: Haven for Special Interests

March 30, 2008
It is my impression that Washington, more than perhaps any other state, is led by special interests. My impression is based in part at least on my law practice which focuses on real estate and business, so my awareness of this influence is pretty much confined to those areas.Let me give you a few examples of what has given me the impression that special interests are more influential here than most other places.
Perhaps my most shocking moment practicing law occurred when, during oral argument before the State Supreme Court, a representative of the insurance industry pointed to the justices and told them that his people were closely looking at how each one of them voted on this case and the insurance industry would be heard from come election time. (I am paraphrasing here but this message was loud and clear.) I thought that this was a truly shocking insult to the integrity of the court, but the justices said nothing.
In the area of construction law Washington is I believe the most repressive with respect to consumer rights. Did you know that if a building or bridge collapses six years after it is permitted, there is absolutely no recourse against anyone in the construction industry, including builders, suppliers, architects, engineers, even surveyors and anyone one else claiming to be in the industry? Condominium owners have no recourse if their building collapses four years after it was permitted (although this is a little murky). In Washington, at least with respect to being able to enforce warranties and representations, all the talk about the useful life of structures is bogus. After six years (four for condos) no one is responsible.This is the result of Washington’s statute of repose, which is jokingly said to have received that name named because people had to be asleep for the legislature to get the law through.
Other states have statutes of repose. These were pushed through state legislatures by an unprecedented lobbying effort on the part of the insurance and building industries in the 1960’s. Washington’s four year statute for condos and six years for absolutely everything else is extremely rare among the states and may be the shortest of any state. If you buy a new condo you should know that you are stuck if anything (however disastrous) goes wrong four years after the permit was granted, which is ofter about two or so years after it is filled.
To give you a sense of the influence of the building lobby, in Washington say a school building collapses six years after completion and kills a child whose watch stops for no good reason. There would be no recourse against anyone in the construction industry but the parents could sue the watch manufacturer for the cost of the watch. Personal property here has a twelve year (or the useful life of the product) statute of repose.
Perhaps the best indicator of the exalted state of special interests here is that when three sitting justices of our State Supreme Court announced last week that they were seeking reelection, the newspaper interviewed not a law professor or someone who practices before the court, but a representative of B.I.A.W., the building industry lobby.

Frank Chopp Kills Another Consumer Bill

March 10, 2008
The State Speaker of the House, Frank Chopp, refused to let the Homeowners’ Bill of Rights out of committee, thereby killing it. The bill, sponsored by Democrat Brian Weinstein, who is quitting after this session, merely gives homeowners what they think they already have. It merely causes Washington law in the narrow area of responsibility for unsafe or negligently built residences to conform with common sense. It eliminates only one of many immunities enjoyed by the construction industry and then only with respect to homes.The bill is very simple. It says that someone guilty of the defective construction of a home is responsible to the homeowner if the defect causes damage to the home. Not all that controversial is it?Speaker Chopp killed this bill last year and did the same thing again this session. There is absolutely no legitimate reason for this bill not to be law. There is no policy reason, no legal reason, no legitimate reason of any kind.

Speaker Chopp killed this common sense measure to preserve the immunities of the construction industry, maintaining the burden of defective construction on the back of the absolutely innocent consumer. Mr. Chopp believes that by catering to BIAW, the building industry lobby, the Democratic Party will curry the favor or at least avoid the opposition of one of the State’s most influential special interests.

By the way, frequently homeowner’s property insurance does not cover this loss, leaving the consumer completely out of luck.


HB 2150; The Merit System for Washington at Last!

January 22, 2008

Apparently there are others who are appalled at the special interest money pouring into judicial elections, elections for judges who are supposed to be impartial. The primary purpose of the money that is lavished on judicial campaigns is to install judges who will not restrain the effects of the laws that lobbyists push through the state legislature.   Special interests, by their attack campaigns on sitting judges and financing the campaigns of their acolytes seek to implant favoritism in the courts. The special interests that lobby their bills through the state legislature seek to have those same bills, when they become laws, reviewed by judges who are their delegates.  Thus, these special interests are able to have laws passed by the legislature, then reviewed and interpreted by a court that is predisposed to support the interests behind the laws and which depends on the support of those special interests at the next judicial election.

This is a grievous distortion of the system the our forefathers envisioned.  Such influence by special interests was abhorrent to Alexander Hamilton who viewed an independent judicial branch as essential to  the protection of the rights of individuals from the “ill humors of designing men” and the minority party from the oppression of easily influenced popular sentiment.  Lack of an independent judiciary would threaten the constitution and imperil our form of government Hamilton wrote in Federalist Paper No. 77.

Judges are supposed to different than congressional representatives in that our system of government depends on an independent judicial branch, free — to the extent possible — from the influence of lobbyists, special interests and generally the sway of money. That was the founding father’s purpose in making federal judges appointees for life. In Washington a State Supreme Court judge serves a 6 year term, a tenure short enough for the judge’s decisions to be influenced by concern for re-election.

Apparently I am not the only person who sees this as a threat to the notion that our government, through its check and balances between the three branches, was intended to be fundamentally fair. Washington State representatives Rodne, Sullivan, Sommers and Appleton have sponsored a bill to address this corruption of our system of government: HB 2150.