Posted by: Patricia Salkin | May 21, 2018

WA Appeals Court Finds Owner Failed to Establish a Regulatory Takings Claim

This post was authored by Matthew Loeser, Esq.

Plaintiff Thun owned 36 acres of property located on a steep hillside that slopes into the Puyallup River Valley. The slopes on this property varied from 20 percent to 40 percent or greater and posed a high landslide risk. In 2004, the Central Puget Sound Growth Management Hearings Board ordered the City to revise its zoning designations to comply with Washington’s Growth Management Act (“GMA”). The GMA required each city to adopt development regulations that provided open space areas between urban growth areas and that protect critical areas, including areas susceptible to erosion or sliding – such as Thun’s property. Thun entered into a purchase and sale agreement with a developer to construct a 575-unit condominium complex on his property, and the developer submitted an application to the City for a site development permit for the condominium complex. That same day, the City adopted Ordinance 1160, which rezoned all but roughly 5.5 acres of Thun’s property from C-2 to RC-5 residential/conservation. Under the new rezoning, Thun’s proposed development was not allowed because RC-5 zoning authorizes only one residential unit per five acres. The City subsequently denied the developer’s site development permit application. As a result, Thun filed a lawsuit against the City of Bonney Lake, alleging that the City’s adoption of an ordinance rezoning the majority of Thun’s property constituted an unconstitutional regulatory taking. The trial court granted the City’s motion for summary judgment dismissal of the case.

After a review of the record, the court found that the Ordinance was adopted in an effort to protect tree cover and manage steep areas that are prone to landslides and erosion, as well as to protect the entry to the City. Thus, the predominant goal of the Ordinance was to prevent a real public harm that was directly caused by the prohibited uses of Thun’s property. In restricting high density developments on the steep slopes of Thun’s property, the City would be better able to protect the public from the safety and environmental concern that landslides and erosion present. Accordingly, the court held that Thun failed to meet the threshold requirement of showing that the Ordinance went beyond preventing a real public harm to producing an affirmative public benefit. As such, Thun failed to establish a regulatory takings claim, and the court held the trial court did not err in granting summary judgment dismissal of Plaintiff’s claim.

Thun v City of Bonney Lake, 2018 WL 2055686 (WA App. 5/1/2018)

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