Agenda - Planning Commission - 08/02/2018

Home

Zoning Bulletin June 15, 2018 I Volume 12 I Issue 12 mercial to residential and conservation was an unconstitutional regula- tory taking The Background/Facts: Karl J. and Virginia S. Thun, Thomas J. Povolka, William and Louise Leslie Revocable Trust, and Virginia Leslie Revocable Trust (collectively, "Thun") owned approximately 36 acres of property in the City of Bonney Lake (the "City"). A majority of Thun's property was located on a steep hillside that sloped into the Puyallup River Valley. The slopes varied from 20% to 40% or greater and "posed a high landslide risk." Prior to 2005, Thun's property was zoned C-2 (commercial), which permitted a maximum of 20 residential units per acre. In 2005, the City adopted Ordinance 1160 (the "Ordinance"), which rezoned more than 30 of Thun's 36 acres from C-2 to RC-5 (residential/conservation). RC-5 zoning authorized only one residential unit per five acres. In adopting the Ordinance, the City noted that its purposes were to: (1) comply with Washington's Growth Management Act ("GMA"), which requires cities to adopt developmental regulations that "provide open space between urban growth areas and that protect critical areas, includ- ing areas susceptible to erosion, or sliding," (RCW 36.70A.160); (2) "manage areas that are steep and prone to geologic instability"; (3) "protect tree cover on areas that cannot be densely developed due to steepness"; and (4) "protect the magnificent [visual] entry to [the City.]" Eventually, Thun filed suit against the City, arguing that the Ordi- nance's rezone of Thun's property constituted an unconstitutional regulatory taking. After a proposed condominium complex on Thun's property was denied under the rezone, Thun estimated that the City's rezone reduced the value of his property from $6 per square foot, or $2.50 in certain areas, to $0.35 per square foot. The City argued that Thun had "failed to meet the threshold require- ment of a regulatory takings claim." In an as -applied takings claim, such as that made by Thun, the claimant must meet a threshold require- ment of showing that the regulation (i.e., here, the Ordinance) "went beyond preventing a public harm to producing an affirmative public benefit." The City argued that Thun was unable to make that showing. The trial court agreed with the City. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the court granted the City's motion for summary judgment, dismissing Thun's claim. The court found that the Ordinance's rezone sought "to prevent a harm by safeguarding the public interest in health, safety, and the environment, and [did] not impose on [Thun] a requirement to provide an affirmative health benefit." Thun appealed. DECISION: Judgment of Superior Court affirmed. ©2018 Thomson Reuters