Agenda - Planning Commission - 01/31/2013 - Special

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Zoning Bulletin December 10, 2012 I Volume 6 I Issue 23 along with a nonprofit organization (collectively, the "Owners"), filed an ac- tion in federal court. They alleged that enactment of the ordinances violated their constitutional rights under several theories: (1) a federal takings claim (i.e., the City took their property for public use without just compensation in violation of the United States Constitution); (2) a state takings claim (i.e., the City took or damaged their property for public or private use without just compensation in violation of the Washington Constitution); and (3) a state substantive due process claim (i.e., the rezoning of their property into MHP districts was a means that was unnecessary to achieve a public purpose, if any, and was duly oppressive on the Owners). The City asked the district court to find that there were no material issues of fact in dispute and to issue summary judgment in its favor on the law alone. The district court granted summary judgment to the City on all claims. The Owners appealed. DECISION: Affirmed. The United States Court of Appeals, Ninth Circuit, rejected all of the Own- ers' claims. The court held that the Owners' federal takings claim failed because the or- dinances did not go "too far" given: (1) there was a minimal economic effect of the ordinances on the Owners; (2) the ordinances did not affect the Owners' "primary expectation" of operating a manufactured home park; and (3) al- though the ordinances required the Owners to bear a greater burden than the general public in providing the public benefit of MHPs, the Owners still had the option of discontinuing that use and using the property for another use permitted under the ordinances. In so holding, the court explained that the Fifth Amendment to the United States Constitution provides: "nor shall private property be taken for public use, without just compensation." The Owners had not contended that the ordinances constituted a "per se" taking (i.e., a permanent physical invasion of property, or a deprivation of all economically beneficial use of property). Rather, they had argued that the or- dinances constituted a regulatory taking because the ordinances went "too far." While zoning laws do not generally constitute a taking, they will if they go "too far," said the court. Whether a regulation goes "too far," explained the court, depends on three factors: (1) the economic impact of the regulation on the claimant; particularly, (2) the extent to which the regulation has interfered with distinct investment backed expectations; and (3) the character of the governmental action. Analyzing those three factors, the court first found that the economic impact of the ordinances on the Owners was only a diminishing property value of be- tween 0% (for two of the Owners' properties) and 15% (for one of the Own- ers' properties). The court said that "[a] small decrease in value, for only one affected property, falls comfortably within therange of peiuuissible land use regulations that fall far short of a constitutional taking." The court also said that "diminution in property value, standing alone, can [not] establish a `taking.' " In sum, the court concluded that the minimal economic effect of the ordinances did not support the Owners' federal takings claim. ©2012 Thomson Reuters 5