This page provides an overview of the federal and state laws that affect regulatory takings in Washington State.

Overview

The subject of governmental "takings" of private property has become a prominent issue in the past two decades as state and local governments have started seriously confronting the issue of urban sprawl and its effect upon the quality of life - urban and rural - and the environment. A consequence of confronting this issue has been an increase in governmental regulation of private property, which, in turn, has resulted in a burgeoning property rights movement. The purpose of this page on regulatory takings is to present information on the attempt to strike a balance between the public and private interests in the use of land that is represented in the concept of takings.

Both the federal and Washington State constitutions provide that the government may not take private property unless it is for a public use and just compensation is paid. Just compensation is considered to be the fair market value of the property at the time of the taking. A government may "take" property in two basic ways:

1. By physically appropriating the property, such as for a right-of-way.
2. By regulating or limiting the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use.

In the first instance, the government typically institutes eminent domain proceedings, also called condemnation. In the second instance, the government can be sued for a taking. A suit alleging a taking is also called an "inverse condemnation" action.

Authority to Regulate the Use of Property

The state constitution at article 11, section 11 grants cities and counties the police power authority to protect the public health, safety, and welfare. Pursuant to that authority, a city or county may regulate the use of property. They may regulate property for purposes such as abating nuisances, enforcing building and health codes, zoning and planning, and environmental protection. However, both federal and state courts have recognized that government regulation can go "too far" so as to have the same effect on a property owner as if the government had actually physically appropriated the land. The U.S. Supreme Court first recognized such regulatory takings in 1922. See Pennsylvania Coal Co. v. Mahon (1922):

A regulation does not, however, go "too far" so as to require compensation for a takings when it merely decreases property value or prevents property owners from doing exactly what they want with their property. As long as a regulation allows property to be put to productive economic use, the property has value and the regulation will not be deemed to deny all reasonable economic use of the property; there is no regulatory taking in that situation. Property owners do not have a constitutional right to the most profitable use of their property.

In Washington State, the courts have also used a "substantive due process" test to analyze the burdens imposed by land use regulations. Both the federal and state constitutions provide due process protections through the Fourteenth Amendment and article 1, section 3 respectively. Substantive due process basically requires that a land use regulation be imposed reasonably and fairly. Under this test, a regulation must not only have a legitimate public purpose, but it must also use means that are reasonably necessary to achieve that purpose and that do not impose an unfair burden on affected property owners. So, under Washington law, a land use regulation may be challenged either as an unconstitutional taking or as a violation of substantive due process, or both. A regulation is a taking if it violates the constitutional requirement of compensation when private property is taken for a public use, while a substantive due process violation occurs when a regulation exceeds the constitutionally permissible scope of the police power. Unlike the remedy for a takings, the remedy for a substantive due process violation is invalidation of the regulation.

Statutes and Constitutional Provisions

• U.S. Constitution Fifth Amendment - "[...] nor shall private property be taken for public use, without just compensation."
• Washington State Const. art. I, § 16 - Eminent Domain
• Ch. 8.08 RCW - Eminent domain by counties
• Ch. 8.12 RCW - Eminent domain by cities
• Ch. 8.25 RCW - Additional provisions applicable to eminent domain proceedings
• RCW 36.70A.020(6) - "Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions."

Recommended Resources

MRSC

• Regulatory Takings Court Decisions - 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.
• Eminent Domain - Provides an overview of the eminent domain laws that affect Washington State local governments.

Other

• WA Law Review: The Path Out of Washington's Takings Quagmire: the Case for Adopting the Federal Takings Analysis (2011) - The author of this law review article argues that the takings analysis adopted by the Washington courts is unnecessarily complex and confusing, and that the Washington Supreme Court should adopt the relatively straightforward takings analysis established by the U.S. Supreme Court.
• WA State Attorney General's Office: Advisory Memorandum - Avoiding Unconstitutional Takings of Private Property (2006) - Offers an in-depth review of takings principles, as well as recommending a process for evaluating proposed actions to avoid a takings. The City of Mukilteo created this DOE Warning Signals Checklist following the recommendations in this memorandum.
• Institute for Local Government: Property Rights and Land Use Regulation: A Primer for Public Agency Staff (2006) - Provides a legal overview of takings law, though with a focus on California, and provides a method to analyze and evaluate takings issues.
• WSAMA: The Koontz Case: Implications in Washington State (2013)
• WSAMA: Koontz: What it said, what it didn’t say, and the implications for us in Washington State (2013)