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Regulatory Takings Court Decisions

This page highlights key court decisions on regulatory takings from the U.S. Supreme Court, the Ninth Circuit Court of Appeals, the Washington State Supreme Court, and the Washington State Court of Appeals. For an overview of the federal and state laws that affect regulatory takings in Washington State, see Regulatory Takings.


U.S. Supreme Court


Court upheld a regulation that required the merger of two substandard lots.

Murr v. Wisconsin, 137 S.Ct. 1933 (2017) – At issue in the case was a regulation that merges together and prohibits the separate sale or development of adjacent lots under common ownership when one of the lots does not contain a minimum amount of developable land. The landowners bringing the suit owned two adjacent lots, each of which contained less than the minimum amount of developable land. The landowners claimed that the regulation constituted a taking, as it deprived them of use of one of the lots, which they wished to sell in order to fund development on the second lot. The Court affirmed the lower courts, which had held that no taking occurred because, when the property was considered as a whole, the land owners retained “several available options” for use, and the market value of the property was not significantly affected. The Court laid out a series of factors that should be considered in such circumstances to decide if the property should be considered as a whole. These factors include the treatment of the land under state and local law, the physical characteristics of the land, and the prospective value of the regulated land. By looking at these factors, courts can decide if a reasonable landowner would anticipate that his property would be treated as one parcel or as separate tracts. Once a court has made this determination, it has established the “denominator” to be used in its takings analysis.


Supreme Court denied review of California Supreme Court decision upholding inclusionary housing ordinance.

California Bldg. Industry Ass'n v. City of San Jose, Calif., 136 S.Ct. 928 (2016) – California Supreme Court upheld city’s inclusionary housing ordinance requiring that 15% of new houses in development be offered at affordable housing prices. The Court held that the regulation did not involve an exaction of land or dedication of money to the public, and did not constitute an unconstitutional takings. U.S. Supreme Court denied certiorari. Note that Justice Thomas wrote in a concurrence that the Supreme Court has yet to resolve the important issue of whether a municipality can do legislatively what it can’t do administratively, but determined this was not the case to do so.


Unconstitutional conditions doctrine

Koontz v. St. Johns River Water Management District, 570 U.S. 2588 (2013) - In a 5-4 decision, the Court held: a government’s demand for property from a land use permit applicant must satisfy the Nollan/Dolan requirements even when it denies the permit; and the Nollan/Dolan requirements apply to monetary exactions. Because the government denied the permit here, there is no takings claim, but rather an “unconstitutional conditions claim predicated on the Takings Clause.” However, "so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.”


Government-induced flooding is not automatically exempt from takings claim.

Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012) - The Court held unanimously that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. The Court, however, did not conclude that there was a taking in this case, and it remanded the decision to the Federal Circuit for further proceedings under the Penn Central factors for assessing regulatory takings.


Rejected Agins two-part test.

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) - This case, which involved a challenge to legislation that limits the rent oil companies may charge dealers leasing company-owned service stations, is significant because it repudiates the test outlined in Agins v. Tiburon, 447 U.S. 255 (1980). The Court held that the Agins "substantially advance[s]" formula is not an appropriate test for determining whether a regulation effects a Fifth Amendment taking. That test requires an inquiry in the nature of a due process test, which reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights or how any regulatory burden is distributed among property owners.


Temporary Taking

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning, 535 U.S. 302 (2002) - The Tahoe Regional Planning Agency imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area. The Court held that this was not a per se taking and that there is no per se rule regarding the issue of whether a temporary land use restriction (even if a complete denial of all use is imposed for a finite and reasonable period), such as a moratorium, can constitute a taking.


Acquiring property after adoption of challenged regulation

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) - The plaintiff owned property that included land protected as "coastal wetlands" on which development was greatly limited, and the plaintiff acquired the property after the restrictions had been enacted. The Court held that acquisition of title after the effective date of a regulation does not automatically bar a regulatory taking claim. Because the property retained some value, the Court rejected a Lucas-based takings claim, but it remanded the case for a determination of whether a takings occurred using the Penn Central three-factor balancing test.


Rough proportionality test is inapplicable to a permit denial.

City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) - The city denied a permit application for an oceanfront development based on environmental impacts and access issues. The developer claimed that the city's permit denial had deprived it of all economic use of its property. The Court recognized the right to a jury trial in a regulatory takings case, and it upheld a $1.45 million jury award to the landowner based on loss of economically viable use of its property. The Court characterized the Dolan test of rough proportionality as inapplicable to a takings claim based on denial of a development permit.


Rough proportionality required for dedication

Dolan v. City of Tigard, 512 U.S. 374 (1994) - The city conditioned a permit approval on the dedication of property for storm drainage and for a pedestrian/bicycle pathway. The Court held that a dedication of property as a condition of development permit approval must be roughly proportional to the impact of a proposed development.


Total taking

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) - A state law prohibited the plaintiff from building residential structures on two beachfront lots. The court held that, if a regulation results in either a "physical invasion" or a "total taking (a denial of all economic use of the land)," the owner has suffered a per se taking and is entitled to just compensation regardless of the public interest advanced in support of the restraint, unless the government can identify "background principles of nuisance and property law" that prohibit the uses the owner intends under the circumstances in which the property is presently found.


Nexus requirement for exaction

Nollan v. California Coastal Commission, 483 U.S. 825 (1987) - When the granting of a land use permit is conditioned upon a physical invasion of private property (e.g., dedication of easement), the condition must substantially advance the same governmental purpose as the asserted justification for that condition. There must be a logical "nexus" between the negative impact of the project and the need for a public easement across the owners' property. The Court rejected the exaction of an easement along the beach, even though the Nollans' new beachfront house would make it more difficult for passersby to see the ocean from the road, because allowing people to walk on the beach was not related to restoration of the view from the road.


Temporary takings

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) - The county adopted an "interim ordinance" that barred construction or reconstruction of buildings within an interim flood protection zone. The Court determined that "temporary" regulatory takings that deny landowners all use of their property are not different in kind from permanent takings for which the Constitution clearly requires compensation. Invalidation of the regulatory ordinance without payment of fair value for the use of the property during the period of the taking is a constitutionally insufficient remedy.


Physical occupation of property

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) - A state law required that landlords allow the installation of cable television on their property and limited the payment from the cable company to no more than an amount determined by a state commission to be reasonable. The Court ruled the statute unconstitutional, holding that a permanent physical occupation of real property is a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the property owner. The Court reasoned that, to the extent that the government permanently occupies physical property, it effectively destroys the owner's rights to possess, use, and dispose of the property.


Adopted two-part test.

Agins v. Tiburon, 447 U.S. 255 (1980) - In a challenge to a city ordinance that limited development of the Agins' five-acre lot to between one and five homes, the Court adopted a two-part test for regulatory takings challenges. The application of a general zoning law to particular property is not a taking if the regulation substantially advances legitimate state interests and does not deny an owner economically viable use of his land.


Establishes factors to consider in takings claim.

Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) - The New York City Landmarks Preservation Commission designated Grand Central Terminal as an historic landmark, and it denied an application to build a 55-story office building atop the terminal. In denying the claim for a taking, the court announced the rule that three relevant factors must be looked at to determine whether a regulatory taking has occurred: the character of the regulation; the economic impact on the landowner; and the extent of interference with investment-backed expectations.


Regulatory takings doctrine established.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) - A state law that forbade coal mining in a way that caused the subsidence of, among other things, any structure used as a human habitation was applied to property subject to a deed that allowed such mining and under which the grantee assumed the risk. In this case, the U.S. Supreme Court established the regulatory takings doctrine, holding that a mere restriction by government on the use of land, in the absence of any physical occupation or appropriation of land, can trigger a Fifth Amendment right to compensation. If a regulation "goes too far," it will be recognized as a taking.


Ninth Circuit Court of Appeals


Manufactured home park zoning is not a taking.

Laurel Park Cmty., LLC v. City of Tumwater, 698 F.3d 1180 (9th Cir. 2012) - The city enacted two ordinances for the purpose of preserving the existing stock of manufactured home parks within the city by limiting the uses of properties containing manufactured home parks and located in a newly-designated manufactured home park zoning district. Applying the Penn Central factors, the court upheld the city's ordinances against a regulatory takings challenge by manufactured home park owners. The cout concluded that the ordinances had minimal economic effect on the plaintiffs, that the impact on their invetsment-backed expectations was highly speculative, and that the ordinances did not force plaintiffs to continue operating their properties as manufactured home parks.


No taking found; weak investment-backed expectations.

Guggenheim v. City of Goleta, 638 F.3d 1111 (9th Cir.2010) - The court held that the city did not owe just compensation to mobile home park owners for economic losses resulting from the enactment of a mobile home rent control ordinance. The court, considering the three Penn Central factors, found that the owners' investment-backed expectations were weak, in that the mobile home park had previously been regulated under an identical county ordinance, which was already in effect at the time the property was acquired.


Penn Central analysis applied to generally-applicable regulation.

McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), cert. denied, 129 S. Ct. 2765 (2009) - The court addressed whether a legislative, generally-applicable development regulation that does not require the owner to relinquish rights in real property, as opposed to an adjudicative land use exaction, should be addressed under the Penn Central or Nolan/Dollan framework, the latter of which would require that the "essential nexus" and "rough proportionality" tests be applied. In this case, the generally applicable development regulation required that all new developments include a 12-inch storm pipe. The court held that this requirement is subject to review under the Penn Central analysis and that, under that analysis, the requirement did not effect a regulatory taking.


Washington State Supreme Court


Open space set-aside.

Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740 (2002) - The challenged subdivision conditions included a 30 percent "open space" set-aside and the requirement of a secondary limited access road into the proposed development for emergency vehicles. The court held that the open space set-aside condition violated RCW 82.02.020 and did not address the takings argument, but it upheld the secondary access road requirement against a substantive due process challenge.


Subdivision dedication roughly proportional.

Sparks v. Douglas County, 127 Wn.2d 901 (1995) - The court determined that a nexus existed between the requirement of short plat approval of a dedication of rights-of-way for road improvements and the county's interest in the promotion of road safety. The court also determined that the exactions demanded by the county were roughly proportional to the impact of the proposed development under Dolan v. City of Tigard because they were the result of an individualized analysis conducted by the county.


No taking, but substantive due process rights violated.

Guimont v. Clarke, 121 Wn.2d 586 (1993), cert. denied, 510 U.S. 1176 (1994) - Owners of mobile home parks sought a declaration invalidating the Mobile Home Relocation Assistance Act and a permanent injunction against enforcement of the Act. The court determined that no unconstitutional taking of property without just compensation occurred because the regulation did not deny property owners all economically viable use of their property. However, the court determined that the regulation was unduly oppressive and therefore violated the property owners' substantive due process rights.


Substantive due process test.

Presbytery of Seattle v. King County, 114 Wn.2d 320, cert. denied, 498 U.S. 911 (1990) - An owner of property containing wetlands sought damages under the theory of inverse condemnation after the county adopted an ordinance that prohibited new construction within wetland boundaries and buffer zones. The court held that, for purposes of determining whether application of a land use regulation effects an unconstitutional taking of property, the inquiry must be directed to the entire parcel of property. To determine whether a regulation violates substantive due process, the court used the three-pronged due process test: (1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner.


Ripeness of takings challenge.

Estate of Friedman v. Pierce County, 112 Wn.2d 68 (1989) - Property owners challenged designation of their property as open space. The court held that exhaustion of administrative remedies is necessary before a court can properly determine a takings claim. A regulatory takings claim is not ripe for court review until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue


Remedies for excessive police power regulation.

Orion Corp. v. State, 109 Wn.2d 621 (1987), cert. denied, 486 U.S. 1022 (1988) - A corporation owning tidelands within a designated estuarine sanctuary claimed under various theories that the state and a county had taken its property by regulating its use under the Shoreline Management Act. In remanding the case for factual determinations, the court noted that the primary problem caused by an excessive police power regulation is that it requires the landowner to shoulder an economic burden, which in justice and fairness the public should rightfully bear. Landowners can be protected from the unfair burden by invoking either the constitutional guaranty that property will not be deprived without due process of law, or the constitutional requirement of just compensation whenever the state exercises its power of eminent domain to take private property for public use. The crucial difference lies in the remedy to be applied: invalidation or the payment of just compensation.


Washington State Court of Appeals


Court upheld updated Shoreline Master Program that included buffer and public access provisions.

Olympic Stewardship Foundation, et. al. v. Western Washington Growth Management Hearings Board, 199 Wn. App. 668 (2017) — In order to assert the unconstitutional conditions doctrine as established in Nolan, Dolan, and Koontz, a party must first establish that a constitutional right is being infringed upon. The Nolan/Dolan tests cannot be applied to a facial taking claim. Here, the challenge was to buffer and public access provisions in a new Shoreline Master Program. No individual land use permit was at issue.


Flood management ordinance upheld.

Cradduck v. Yakima County, 166 Wn. App. 435 (2012) - Under its flood management ordinance, the county did not permit the plaintiff to replace a mobile home on a lot within her mobile home park located in a designated floodway. Although the trial court rejected the plaintiff's regulatory takings claim, it granted her substantive due process claim. The court of appeals reversed the trial court's substantive due process holding, concluding that the county flood management ordinance and the statute under which it was adopted (ch. 86.16 RCW) support legitimate public purposes, use means that are reasonably necessary to achieve those purposes, and are not unduly oppressive on the landowner.


Ripeness of takings claim.

Thun v. City of Bonney Lake, 164 Wn. App. 755 (2011), review denied, 173 Wn.2d 1035 (2012) - The city rezoned approximately 30 acres of Thun’s 37-acre property. Thun brought suit against Bonney Lake claiming that the rezone was an unconstitutional taking. Although the court rejected the rule that partial takings plaintiffs must show denial of all reasonable beneficial use of their land to demonstrate ripeness, the court held that Thun did not demonstrate ripeness in this case. The court determined that, under the facts here, the permitted uses of the property are not yet reasonably known. Because further administrative proceedings would be helpful to clarify the size and permissible uses on the parcels at issue, the case was not ripe.


Preservation Board rejection of a proposal to develop a designated historical landmark property did not constitute a taking.

Conner v. City of Seattle, 153 Wn. App. 673 (2009), review denied, 168 Wn.2d 1040 (2010) - The court of appeals held that the Seattle Landmarks Preservation Board rejection of a proposal to develop a designated historical landmark property by constructing on short-platted lots within the property three contemporary homes, each larger than the landmark house, did not constitute a taking. No fundamental attribute of property ownership was destroyed, and the proposal was rejected in order to safeguard the public's interest in the historic environmental features of a designated landmark. The court also rejected a substantive due process challenge.


Discusses "facial" and "as applied" challenges.

Peste v. Mason County, 133 Wn. App. 456 (2006) - The court of appeals rejected a regulatory takings challenge to the county's denial of the plaintiff's rezone request following the county's adoption of comprehensive plan amendments and development regulations that resulted in his rural property being designated RR 20, with an allowed residential density of one dwelling unit per 20 acres. The plaintiff had requested that his property be rezoned to allow one dwelling unit per five acres. The court's opinion presents a comprehensive overview of how "as applied" and "facial" takings challenges to land use regulations are analyzed.


Nonconforming use ordinance is upheld.

City of Des Moines v. Gray Businesses, 130 Wn. App. 600 (2005) - The owner of a mobile home park did not comply with an ordinance requiring that the owners of nonconforming uses file a site plan to legally continue their nonconforming uses, and the city notified the owner that the use was no longer allowable. The court of appeals held that the city's ordinance was a valid regulation, not a taking, because the "right" to use the property for a particular use is not a fundamental attribute of ownership. Rather, it is a contingent right that is dependent upon state law and local regulations such as business license requirements and zoning.


Ban on social cardrooms as applied to an existing cardroom is upheld.

Paradise Village Bowl v. Pierce County, 124 Wn. App. 759 (2004) - The court upheld the county's ban on social cardrooms as applied to an existing cardroom, finding that the prohibition was not a taking. The court held that the prohibition did not destroy the economic viability of the property. The court also held that the prohibition did not violate substantive due process: the prohibition was for a legitimate public purpose, it was reasonably necessary to achieve that purpose, and it was not unduly oppressive (it did nothing more than regulate the activity responsible for the harm created by the activity).


Ban on social cardrooms as applied to an existing cardroom is upheld.

Edmonds Shopping Ctr. Assocs. v. City of Edmonds, 117 Wn. App. 344 (2003) - A city ordinance banning cardrooms as applied to an existing, permitted cardroom was deemed by the court to be a reasonable exercise of the city's police power. The court held that the ordinance neither destroyed a fundamental attribute of ownership nor imposed a private burden for a public benefit. The court also rejected a substantive due process claim by concluding the ordinance achieves a legitimate public purpose and was not unduly oppressive on the property owner.


Road requirement lacks rough proportionality.

Burton v. Clark County, 91 Wn. App. 505 (1998), review denied, 137 Wn.2d 1015 (1999) - A requirement that a developer build a road across his property that would eventually connect with a road to be built in the future on adjacent property was invalidated as a takings. The county's requirement lacked "rough proportionality" to the nature and extent of the impact of the proposed development.


Stub road access dedication is taking.

Luxembourg Group v. Snohomish County, 76 Wn. App. 502, review denied, 127 Wn.2d 1005 (1995) - The county denied a subdivision application because the applicant would not agree to dedicate a stub road access to a landlocked neighboring property as a condition for approval. The court determined that the dedication requirement would not remedy any problem caused by the applicant's proposed subdivision. The court held that a dedication requirement that would not remedy any problem caused by the subdivision effects an unconstitutional taking of property without compensation.


Last Modified: October 09, 2017