takings clause in Washington

2015Ed. 2d 868 ( 1982); ( 3) a regulation destroys one or more of the fundamental attributes of ownership ( the right to possess, exclude other, and to dispose of property), Presbytery ofSeattle v. King County, 114 Wn.2d 320, 330 , 787 P. 2d 907 , cert. denied, 498 U.S. 911 ( 1990); or (4) the regulations were employed to enhance the value of publicly -held property, Orion Corp. v. State, 109 Wn.2d 621, 651 , 747 P. 2d 1062 ( 1987), cert. denied, 486 U. S. 21 In its opening brief, WVII argues only that the superior court should not have dismissed the takings claim because the County did not specif

2015Ed. 2d 868 ( 1982); ( 3) a regulation destroys one or more of the fundamental attributes of ownership ( the right to possess, exclude other, and to dispose of property), Presbytery ofSeattle v. King County, 114 Wn.2d 320, 330 , 787 P. 2d 907 , cert. denied, 498 U.S. 911 ( 1990); or (4) the regulations were employed to enhance the value of publicly -held property, Orion Corp. v. State, 109 Wn.2d 621, 651 , 747 P. 2d 1062 ( 1987), cert. denied, 486 U. S. 21 In its opening brief, WVII argues only that the superior court should not have dismissed the takings claim because the County did not specif

2015Washington State Constitution article I, section 16 states that "[ n] o private property shall be taken or damaged for public or private use without just compensation having been first made." Under existing Washington and federal law, a police power measure can violate article I, section 16 of the Washington State Constitution or the Fifth Amendment of the United States Constitution and thus be subject to a takings challenge when ( 1) a regulation affects a total taking of all economically viable use of one' s property, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 , 112 S. Ct.

2015Washington State Constitution article I, section 16 states that "[ n] o private property shall be taken or damaged for public or private use without just compensation having been first made." Under existing Washington and federal law, a police power measure can violate article I, section 16 of the Washington State Constitution or the Fifth Amendment of the United States Constitution and thus be subject to a takings challenge when ( 1) a regulation affects a total taking of all economically viable use of one' s property, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 , 112 S. Ct.

2022Because we affirm the trial court’s conclusion that Ordinance 126081’s ban on interest is preempted by state law, we need not reach this takings claim. 12 In Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 361 , 13 P.3d 183 (2000), abrogated by Chong Yim v. City of Seattle, 194 Wn.2d 651 , 451 P.3d 675 (2019), the Supreme Court held that the Washington State Constitution is more protective than the federal constitution on the basis “that ‘private use’ under amended article I, section 16 is defined more literally than under the Fifth Amendment, and that Washington's inte

2006Furthermore, the continuing viability of the court’s holding in Robroy is questionable after our Supreme Court’s decision in Manufactured Housing Communities v. State, 142 Wn.2d 347 , 13 P.3d 183 (2000). ¶19 In Manufactured Housing, the Supreme Court analyzed the right of first refusal in the context of a takings claim and concluded that a law giving mobile home park tenants the right of first refusal over a sale of their park constituted an unconstitutional taking by the legislative body enacting the law. 142 Wn.2d at 374-75 .

2022However, the State does not argue that we should decline to address the takings claim, and therefore we do not address this issue. 20 No. 55915-3-II The second type of taking is analyzed using a flexible, balancing test adopted in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 , 98 S. Ct. 2646 , 57 L.

2022However, the State does not argue that we should decline to address the takings claim, and therefore we do not address this issue. 20 No. 55915-3-II The second type of taking is analyzed using a flexible, balancing test adopted in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 , 98 S. Ct. 2646 , 57 L.

2002Governmental actions may be subject to the takings clause (1) for failure to substantially further a legitimate governmental purpose, including failure to establish a direct and proportional nexus between the action and accomplishing the claimed purpose, see, e.g., Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 836-37 , 107 S. Ct. 3141 , 97 L.

2002Governmental actions may be subject to the takings clause (1) for failure to substantially further a legitimate governmental purpose, including failure to establish a direct and proportional nexus between the action and accomplishing the claimed purpose, see, e.g., Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 836-37 , 107 S. Ct. 3141 , 97 L.

2015Ed. 2d 868 ( 1982); ( 3) a regulation destroys one or more of the fundamental attributes of ownership ( the right to possess, exclude other, and to dispose of property), Presbytery ofSeattle v. King County, 114 Wn.2d 320, 330 , 787 P. 2d 907 , cert. denied, 498 U.S. 911 ( 1990); or (4) the regulations were employed to enhance the value of publicly -held property, Orion Corp. v. State, 109 Wn.2d 621, 651 , 747 P. 2d 1062 ( 1987), cert. denied, 486 U. S. 21 In its opening brief, WVII argues only that the superior court should not have dismissed the takings claim because the County did not specif

1993Robinson v. Seattle, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34 , 830 P.2d 318 , cert. denied, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 *615 U.S. 1022, 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990).

2008“The taking or damaging of property to the extent that it is reasonably necessary for the maintenance and operation of other property devoted to a public use is a taking or damaging for a public use and subject to the provisions of article I, section 16, of the Washington State Constitution.” Dickgieser v. State, 153 Wn.2d 530, 535 , 105 P.3d 26 (2005). ¶37 The parties generally agree that a takings claim can lie for damages that are “necessarily incident to” or a “necessary consequence of” a public project.

2008"The taking or damaging of property to the extent that it is reasonably necessary for the maintenance and operation of other property devoted to a public use is a taking or damaging for a public use and subject to the provisions of *723 article I, section 16, of the Washington State Constitution." Dickgieser v. State, 153 Wash.2d 530, 535 , 105 P.3d 26 (2005). ¶ 37 The parties generally agree that a takings claim can lie for damages that are "necessarily incident to" or a "necessary consequence of a public project.

2008A plain reading of article I, section 16 mandates Brutsche be justly compensated. [2] I agree that "taking" or "damaging" does not occur in the constitutional sense where the damage is occasioned by a traditional use of the "police power," however this was not an exercise of the police power but rather an exercise of the power of eminent domain. ¶63 The majority rejects Brutsche's takings claim based primarily on Eggleston v. Pierce County, 148 Wash.2d 760 , 64 P.3d 618 (2003).

2008A plain reading of article I, section 16 mandates Brutsche be justly compensated. 15 I agree that “taking” or “damaging” does not occur in the constitutional sense where the damage is occasioned by a traditional use of the “police power”; however this was not an exercise of the police power but rather an exercise of the power of eminent domain. ¶63 The majority rejects Brutsche’s takings claim based primarily on Eggleston v. Pierce County, 148 Wn.2d 760 , 64 P.3d 618 (2003).

2008We strongly rejected our new majority’s opinion almost 90 years ago in Conger v. Pierce County, 116 Wash. 27, 33 , 198 P. 377 (1921) (rejecting the argument Pierce County was not liable for damages to private property because “the private individual . . . must suffer for the public good”).

2008We strongly rejected our new majority’s opinion almost 90 years ago in Conger v. Pierce County, 116 Wash. 27, 33 , 198 P. 377 (1921) (rejecting the argument Pierce County was not liable for damages to private property because “the private individual . . . must suffer for the public good”).

1993Ed. 2d 598 , 113 S. Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 , 100 L.

1993For the reasons set forth in my concurring opinion in Guimont v. Clarke, 121 Wn.2d 586 , 854 P.2d 1 (1993), I continue to believe that the takings analysis which we carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 , 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990) is good law.

2022Because we affirm the trial court’s conclusion that Ordinance 126081’s ban on interest is preempted by state law, we need not reach this takings claim. 12 In Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 361 , 13 P.3d 183 (2000), abrogated by Chong Yim v. City of Seattle, 194 Wn.2d 651 , 451 P.3d 675 (2019), the Supreme Court held that the Washington State Constitution is more protective than the federal constitution on the basis “that ‘private use’ under amended article I, section 16 is defined more literally than under the Fifth Amendment, and that Washington's inte

2006Furthermore, the continuing viability of the court’s holding in Robroy is questionable after our Supreme Court’s decision in Manufactured Housing Communities v. State, 142 Wn.2d 347 , 13 P.3d 183 (2000). ¶19 In Manufactured Housing, the Supreme Court analyzed the right of first refusal in the context of a takings claim and concluded that a law giving mobile home park tenants the right of first refusal over a sale of their park constituted an unconstitutional taking by the legislative body enacting the law. 142 Wn.2d at 374-75 .

2018“If the regulation does not destroy a fundamental attribute of ownership and does no more than protect the public health, safety, and welfare, then the regulation is not subject to a takings challenge.” Robinson v. City of Seattle, 119 Wn.2d 34, 50 , 830 P.2d 318 (1992).

2018“If the regulation does not destroy a fundamental attribute of ownership and does no more than protect the public health, safety, and welfare, then the regulation is not subject to a takings challenge.” Robinson v. City of Seattle, 119 Wn.2d 34, 50 , 830 P.2d 318 (1992).

2016“By making public property available for the building of the drainage facilities, the County may share in any potential liability, along with the developer, for damage to the Phillips’ property caused by the dispersal of water from the spreaders.” Phillips, 136 Wn.2d at 969 . ¶37 Thus, Phillips holds that a governmental entity is liable only for acts attributable to it, which do not include permitting and approval activities or assuming ownership of a system the design of which is subject to a takings challenge.

2016Halverson, 139 Wn.2d at 8 -9 (citing Phillips, 136 Wn.2d at 965-66 ).

1998The State, on the other hand, argues that in 1889, when the state constitution was adopted, citizens had little recourse for injuries to private property resulting from State action, see Brown v. City of Seattle, 5 Wash. 35, 38 , 31 P. 313 (1893), and that the Fifth Amendment’s takings clause *264 did not extend to the states until the Supreme Court’s ruling in Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 241 , 17 S. Ct. 581, 586 , 41 L.

1998The State, on the other hand, argues that in 1889, when the state constitution was adopted, citizens had little recourse for injuries to private property resulting from State action, see Brown v. City of Seattle, 5 Wash. 35, 38 , 31 P. 313 (1893), and that the Fifth Amendment’s takings clause *264 did not extend to the states until the Supreme Court’s ruling in Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 241 , 17 S. Ct. 581, 586 , 41 L.

2011Seven years later, the United States Supreme Court announced in Dolan that the takings clause contains a “rough proportionality” test requiring the government to “make some sort of individualized determination that the required dedication [of private land] is related both in nature and extent to the impact of the proposed development.” Dolan, 512 U.S. at 391 . ¶46 Our Supreme Court has applied the Dolan “rough proportionality” test when analyzing the legality of a mitigation payment under RCW 82.02.020.

2002This takings claim is no more subject to ripeness requirements than was the takings claim asserted in Eastern Enterprises v. Apfel, 524 U.S. 498 , 118 S.Ct. 2131 , 141 L.Ed.2d 451 (1998), which concerned retroactive liability for health care benefits, or Nollan , which challenged an exaction on legitimacy principles, or Dolan v. City of Tigard, 512 U.S. 374 , 114 S.Ct. 2309 , 129 L.Ed.2d 304 (1994), which challenged an exaction as disproportionate.

2008“The taking or damaging of property to the extent that it is reasonably necessary for the maintenance and operation of other property devoted to a public use is a taking or damaging for a public use and subject to the provisions of article I, section 16, of the Washington State Constitution.” Dickgieser v. State, 153 Wn.2d 530, 535 , 105 P.3d 26 (2005). ¶37 The parties generally agree that a takings claim can lie for damages that are “necessarily incident to” or a “necessary consequence of” a public project.

2008"The taking or damaging of property to the extent that it is reasonably necessary for the maintenance and operation of other property devoted to a public use is a taking or damaging for a public use and subject to the provisions of *723 article I, section 16, of the Washington State Constitution." Dickgieser v. State, 153 Wash.2d 530, 535 , 105 P.3d 26 (2005). ¶ 37 The parties generally agree that a takings claim can lie for damages that are "necessarily incident to" or a "necessary consequence of a public project.

2008A plain reading of article I, section 16 mandates Brutsche be justly compensated. [2] I agree that "taking" or "damaging" does not occur in the constitutional sense where the damage is occasioned by a traditional use of the "police power," however this was not an exercise of the police power but rather an exercise of the power of eminent domain. ¶63 The majority rejects Brutsche's takings claim based primarily on Eggleston v. Pierce County, 148 Wash.2d 760 , 64 P.3d 618 (2003).

2008A plain reading of article I, section 16 mandates Brutsche be justly compensated. 15 I agree that “taking” or “damaging” does not occur in the constitutional sense where the damage is occasioned by a traditional use of the “police power”; however this was not an exercise of the police power but rather an exercise of the power of eminent domain. ¶63 The majority rejects Brutsche’s takings claim based primarily on Eggleston v. Pierce County, 148 Wn.2d 760 , 64 P.3d 618 (2003).

2003Of course it is cheaper for government to steal property than to pay for it, but the takings clause is there precisely to challenge government’s propensity to achieve its “desire by a shorter cut than the constitutional way of paying for the change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 , 43 S. Ct. 158 , 67 L.

2003Of course it is cheaper for government to steal property than to pay for it, but the takings clause is there precisely to challenge government’s propensity to achieve its “desire by a shorter cut than the constitutional way of paying for the change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 , 43 S. Ct. 158 , 67 L.

1993Robinson v. Seattle, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34 , 830 P.2d 318 , cert. denied, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 *615 U.S. 1022, 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990).

1993For the reasons set forth in my concurring opinion in Guimont v. Clarke, 121 Wn.2d 586 , 854 P.2d 1 (1993), I continue to believe that the takings analysis which we carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 , 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990) is good law.

1993Robinson v. Seattle, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34 , 830 P.2d 318 , cert. denied, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 *615 U.S. 1022, 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990).

1993For the reasons set forth in my concurring opinion in Guimont v. Clarke, 121 Wn.2d 586 , 854 P.2d 1 (1993), I continue to believe that the takings analysis which we carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 , 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990) is good law.

1993Robinson v. Seattle, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34 , 830 P.2d 318 , cert. denied, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 *615 U.S. 1022, 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990).

1993Robinson v. Seattle, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34 , 830 P.2d 318 , cert. denied, ___ U.S. ___, 121 L.Ed.2d 598 , 113 S.Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621 , 747 P.2d 1062 (1987), cert. denied, 486 *615 U.S. 1022, 100 L.Ed.2d 227 , 108 S.Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320 , 787 P.2d 907 , cert. denied, 498 U.S. 911 , 112 L.Ed.2d 238 , 111 S.Ct. 284 (1990).