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Developers Rights Preservation Act

Proposed ballot initiative I-162 would redefine a “taking” in Montana law so that any government action that causes “a reduction of at least 25 percent in the fair market value” would have to be addressed by compensation or cessation of the government action.

The Governor’s budget office has determined that I-162 will cost the state of Montana (you and I) $100 million per year for the next six years in “damages (compensation) payable to the property owner; legal defense costs, including expert witnesses, for the government entity; court costs; and payment of attorneys’ fees” if it passes.

The State of Montana and local governments in Montana can reasonably expect takings claims in a broad variety of service and regulatory areas including but not limited to: metal mine or opencut mine permits; septic pumper permits; major facility siting decisions; sanitation in subdivision decisions; local government subdivision decisions; issues before the Montanan Public Service Commission; hunting, fishing, and recreational floating rules and/or restrictions; water rights decisions; trust land management and fire protection decisions; and licensing decisions from a large number of state agencies. There would also be significant impacts to the Department of Justice in defending the state for the claims and to the Judicial Branch in increased judicial workload.

Would-be tycoons tried this in 2006 with CI-154 which was removed from the ballot due to “fraud and procedural non-compliance perpetrated by paid, out of state, migrant signature gatherers“. CI-154 was primarily sponsored by New York real-estate magnate Howard Rich. I-162 expands the language and increases the adverse financial impacts. A complementary initiative to prohibit taxes on the sale or transfer of property is being pushed by the Montana Association of Realtors. Why are out-of-state developers and realtors so interested in your property rights in Montana?

This type of initiative has been shown to be effective in reducing government oversight in other states by placing an excessive financial burden on taxpayers through litigation. A similar measure was passed in Oregon in 2004. In the first two years, 2,600 claims were filed against the state, totaling $6 billion. Not being willing to burden taxpayers with fighting all these, mostly frivolous, lawsuits, Oregon basically gave up on enforcing planning and zoning laws. As a result, developers were able to build practically wherever they wanted to. They can deplete neighboring water sources and destroy farm and forest land nearly at will. Due to this type of legislation, neighbors are not able to protect their lands through planning or zoning. Predatory development cannot be stopped. State land managers are handcuffed. Virtually all state and local regulation will be halted or hampered by development interests.

The Montana Fish wildlife and Parks, for instance, couldn’t make fishing or hunting changes without hurting the value of outfitters’ property, said Trout Unlimited spokesman Mark Aagenes. And property owners could argue that Montana’s stream access law and rules hurts the value of riverside homes.

This initiative is not about private property. It’s about hamstringing government to favor a few large-scale developers who want free rein to run Montana as a for-profit fiefdom unhampered by environmental or fiscal regulation. If this initiative passes, land values will plummet because there will be no effective way to protect against degradation of your property. Property values actually benefit from regulations of land use. Under the I-162 scenario, if a developer wants to build a gravel pit or hog farm next to your property, he will likely be able to do so unhindered by regulation.

Don’t be fooled if you are asked to sign a petition to protect you and your property from the government. This initiative will destroy your property rights and your taxes will  go up to pay for defending the state against thousands of superficial lawsuits.

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