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Land Owners’ Initiative Clears Senate Taxpayers Would Pay Millions In Compensation

In a stunning reversal for Senate Democrats, the GOP took over the Senate chamber Tuesday and passed a property rights initiative that Democrats had vowed to keep bottled up in committee.

Initiative 164 requires taxpayers to compensate property owners if use of their property is curtailed by government regulations for public benefit.

Proponents say it’s only fair to pay for land value lost through government regulation. But critics fear the measure will preclude even routine land-use planning and zoning, and also warn it could become a taxpayers’ nightmare.

Indeed, the state budget office has estimated the initiative will cost hundreds of millions of dollars.

Because the measure is an initiative to the Legislature, the governor cannot veto it. Already passed by the House, it becomes law on July 24 unless opponents gather the signatures necessary to put it on the ballot.

Two Democrats handed Republicans the votes needed to seal their victory. Democrats hold a bare one-vote majority in the Senate.

Senate Majority Leader Marcus Gaspard, D-Tacoma, stayed off the Senate floor in protest during the debate.

“You did not have a Democratic majority in the Senate today, or a majority leader,” Gaspard said.

Several Democrats’ voices broke with emotion as they claimed to cast the hardest votes of their careers - especially those who provided the votes needed to force the measure to the Senate floor.

“I would rather be shot right now than take this vote. I’m serious,” said Sen. James Hargrove, D-Hoquiam, who provided one of the two Democratic votes needed for the GOP to prevail. “It would be a lot less painful if someone would just put me out of my misery.”

Sen. Brad Owen, D-Shelton, provided the other vote needed to bring the bill to the Senate floor.

Both Democrats said they backed the initiative because government has trampled on people’s property rights.

Once the procedural hurdle was cleared, other Democrats crossed party lines to vote for the initiative, which passed 28-20.

Lucy Steers, spokeswoman for an organization called No on 164, said opponents would immediately begin gathering the 90,834 signatures needed to put the measure before voters in November.

The initiative goes beyond just paying property owners if government regulations infringe on the use of their property.

Taxpayers would also be required to pay for routine costs associated with the development process, including any maps, plans, or studies required by government to review a proposed development.

Taxpayers would also foot the bill for an economic impact analysis required by the initiative before any new regulation could be adopted.

Critics said the initiative is so vaguely written, it amounts to a lawyers’ full employment act, and will profit only the big businesses that bankrolled the initiative campaign.

“This isn’t about property rights. It’s about bucknaked greed,” said Sen. Margarita Prentice, D-Seattle.

Supporters said the initiative is the only way to rein in the reach of big government.

“If environmental protection is so important, then everyone ought to pay for it, not just the individual property owner,” said Sen. Ann Anderson, R-Acme.

If the Senate hadn’t acted on it, the measure would have gone before voters automatically.

A similar measure was passed by state lawmakers in Arizona last year, and was overturned by more than 60 percent of voters at the polls in November.

There, as in Washington, the issue was who pays to protect property rights.

Opponents of Initiative 164 warn taxpayers will wind up footing the bill for developers and timber interests if the initiative becomes law. The measure’s backers say taxpayers only pay if government regulates landowners out of the use of their property - in which case compensation is only fair.

“This is about changing behavior: You can’t take property unless you pay for it,” said Sen. Dan McDonald, R-Bellevue, who led the GOP charge.

The measure originally gathered little momentum as a grass-roots initiative. But after the November election swept Republicans into power in the state Legislature, businesses heard opportunity knock.

They hired a California signature-gathering firm and bankrolled the initiative campaign with $246,923, primarily from builders and timber companies.

Tom McCabe of the Building Industry Association, which spearheaded the campaign, vowed to fight on if opponents take the measure to the ballot.

Steers predicted big business will outspend the measure’s opponents.

“We don’t have the money,” she said. “But we have the people.”

Normal wear and tear are subjective terms without apparent consistency or meaning. What’s clean to one person, may not be clean to another. The most common source of friction between managers and residents centers around whether the cost of making repairs to a vacated apartment should be charged to the resident’s security deposit or should be paid by the owner as a normal operating expense. The Revised Code of Washington, Chapter 59 (Residential Landlord-Tenant Act), RCW 59.18.280 states in part “No portion of any deposit shall be withheld on account of wear resulting from ordinary use of the premises.”

“Used but not abused” may be the best definition for the term “normal wear and tear.” Be aware that in normal daily living, things are going to get bumped, dropped and stepped on. Generally speaking, most people will take reasonable care to keep the property clean and undamaged

Prior condition

Always keep good records of the condition of the property before the resident takes possession. A move-in checklist that both the resident and manager sign, indicating the condition of the apartment prior to the resident moving in is essential. An apartment maintenance log indicating the last time it was painted, drapes or blinds were cleaned, appliances were installed, etc., is also good documentation for the prior condition.

Move-out condition

Make a written report on the condition of the apartment after the resident moves out. Using a move-out checklist that is identical to the movein checklist is important. Perform a detailed inspection of the apartment with the resident after all their possessions are gone and the apartment is ready to be turned over to management. Never perform the inspection when the resident is still occupying the apartment; you may be in for a big surprise after they vacate.

Allocation of charges

Make reasonable charges against the resident’s security deposit based on a written list of charges that all residents are aware of. One must remember that the apartment will never be in exactly the same condition as when the resident moved in. You should be aware that a property is “used up” over time (i.e. it deteriorates). The price of rent includes the money to make normal and ordinary renovations over time.

An important consideration when assessing wear and tear is the life expectancy of the property. For example, good quality drapes that should last three years shouldn’t need replacing in one year. A heavy-duty garbage disposal should last several years longer than an inexpensive model. A dishwasher with a projected life of ten years should not have to be replaced in five years. In other words, you should recognize that there is a normal wearing out or aging of appliances or furnishings. What you need to assess is whether the property has been damaged or misused so as to shorten its life expectancy.

A second consideration is length of tenancy. A freshly painted apartment should not require a complete repainting after six months or a year. Residents who occupy an apartment for five years will certainly have a healthy amount of “normal” wear. In conjunction with the length of tenancy, consider who lived in the apartment. “Normal” wear might be fairly extensive in an apartment occupied by a family with two or three young children. On the other hand, the quiet elderly widow’s apartment may look exactly as it did ten years ago when she moved in.

How much does cleanliness enter into considerations of “normal wear and tear?” Dirt, grime and grease in all forms are universally not tolerated, except in Michigan (Smolen v. Dahlmann Apartments, Ltd.). All dirt and soil should be removed when the resident vacates. In other words, if soap, water and elbow grease can do the job, the resident should be expected to do it. This includes such things as hand prints on doors, walls and woodwork; grease on or around the stove; crumbs in drawers or cupboards and mold on bathroom walls.

Normal wear

Most managers agree that certain conditions would be considered normal at check-out and the resident would not be charged for them. These include:

carpets and tiles worn along traffic areas, light soiling along these same tracks;

sun-bleached areas on carpets, drapes or furniture (if furnished);

walls faded from sunlight and repeated cleanings;

paint worn thin around light switches;

furniture rub marks on walls;

a few marks or small nail holes on walls or woodwork which can be touched up by paint and

minor plumbing or electrical repairs (such as leaking faucets).

There are a number of abnormal conditions that are considered beyond normal wear and tear. Normal wear and tear do not include:

dirty stoves and ovens;

broken windows;

broken or ripped screens and screen doors;

carpets with burns, stains or holes;

holes in doors or walls (larger than a few small nail holes for pictures);

rips, tears and holes in drapes or furniture (if furnished);

burn marks on Formica, floors or furniture (if furnished);

mold in bathrooms;

damage to appliances (for example, metal objects in the garbage disposal);

cracked tiles;

filth in the kitchens or bathrooms;

dents on large appliances;

malicious destruction and

an unusual amount of nail holes on walls or ceilings.

When evaluating a vacated apartment, ask yourself the following four questions. Your deductions (if any), from the security deposit are based on answers derived from these questions:

1. What was the expected life of the property? Has it’s life expectancy been shortened?

2. How long was the tenancy?

3. What kind of resident lived here?

4. Was the apartment used or was it abused?

You can back up your decisions with such evidence as photographs or carefully detailed check-in and checkout procedures, statements from vendors such as the carpet cleaning company, etc. The definition of “normal” still remains elusive. Perhaps the final question many responsible managers ask themselves in reaching their decision is “what would I expect if this were my own home?”


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