Agenda - Planning Commission - 08/02/2018

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June 15, 2018 I Volume 12 I Issue 12 Zoning Bulletin The Court of Appeals of Washington, Division 2, agreed with the trial court and with the City, holding that Thun's regulatory takings claim failed because Thun failed to meet the threshold requirement of a regulatory takings claim. The court explained that regulatory takings claims could be chal- lenged as unconstitutional regulatory takings under article I, section 16 of the Washington Constitution. Article I, section 16 provides that "[n]o private property shall be taken or damaged for public or private use without just compensation having been first made." The court further explained that there are two types of unconstitutional regulatory tak- ings challenges to land use regulations: facial and "as applied" challenges. "Facial takings challenges allege that the application of the challenged regulation to any property constitutes a taking because it destroys a fundamental attribute of property ownership." "As applied takings challenges allege that the challenged regulation constitutes an unconstitutional regulatory taking as applied to a specific parcel of property." Here, Thun raised an as applied takings challenge. As the City had argued, in bringing an as applied takings claim, the claimant must make a threshold showing that "the challenged regulation goes beyond preventing a real public harm that is directly caused by the prohibited use of the property to producing an affiuivative public benefit." The court explained that "one landowner should not be forced to bear the economic burden to confer a benefit upon the public, the cost of which rightfully should be spread over the entire community." However, the court said that landowners do not have the right to use their property in a manner that injures the community. Thus, "[i]f the challenged regula- tion merely safeguards the public interest in health, safety, the environ- ment, or fiscal integrity, there is no taking . . .." Here, the court found that the evidence in the case made "clear that the predominant goal of the Ordinance was to prevent a real public harm that is directly caused by the prohibited uses of Thun's property." "By restricting high density developments on the steep slopes of Thun's property, the City [was] able to protect the public from the safety and environmental concern that landslides and erosion present." Thun had argued that the Ordinance required Thun to provide an af- fiuinative public benefit by preserving the entry to the City —which had nothing to do with safeguarding the public interest in health, safety, the environment, or fiscal integrity. But the court found that although the public may benefit from the preservation of the City's "magnificent entry," that fact did "not reduce or remove the effect of the Ordinance of safeguarding the public from harm." Moreover, the court noted that Thun was still permitted to develop his property, just not in a manner that would be injurious to the community. 4 © 2018 Thomson Reuters