Building a family home on his small, vacant residential lot in Edmonds, Washington, should be a relatively smooth process for Nathan Rimmer. The real estate professional has navigated land-use regulations and building codes in the Seattle area for the past 20 years.
Nathan submitted his permit application and building plans in early 2022 and should have had a permit in hand months later. But his plans were stymied by the City’s decision to hijack his permit—and his rights—to get more trees in the city for free.
The City recently adopted an ordinance that prohibits an owner from removing a tree—no matter whether it is a native species or just an ornamental plant. The ordinance will allow an owner to remove a tree only if it’s necessary to build a home and if the owner pays for replacement trees, or pays $1,000 per tree, if replacement is impossible. Depending on the tree’s size, the owner might have to plant more than one replacement tree.
A small ornamental dogwood tree, planted by the former owner, stands in the middle of Nathan’s lot—and stands in the way of his building permit. [Nathan and the tree are pictured above.] According to the City, the dogwood’s removal is worth two replacement trees.
Nathan cannot build a home without removing the tree. If he removes the tree, he must replace it with two additional trees, dedicate a conservation area for their perpetual protection, and record the details on his property title before the City will tell him whether or not it will approve his permit.
While a requirement to replace a tree may seem uncontroversial, the City’s demand goes much further by insisting that Nathan give the City an enforceable interest in his land, and that he provide a replacement value far in excess of the single tree that needed to be removed for his new home.
Troubled at having to meet a “forever tree” condition completely—one that is disproportionate to homebuilding—as a condition of learning whether the City will give him permission to build his family home, Nathan submitted several objections asking them to justify a 2:1 replacement ratio and inquiring why the City needs title to his residential property when asking for a replacement tree. More than a year later, the City still refuses to address his objections or issue a final decision on his permit application.
The City’s fee in lieu of planting new trees is no better. Indeed, even small fees can have a large impact on housing costs. The National Association of Home Builders estimates that a modest $1,000 fee will raise homes’ purchase price enough to drive more than 217,000 potential homebuyers out of the housing market altogether.
Nathan’s concerns are well-founded. The Supreme Court’s 1987 decision in Nollan v. California Coastal Commission struck down government demands for land in exchange for a permit as an “out-and-out plan of extortion.” The ruling, PLF’s first Supreme Court win, determined that all permit conditions imposed on land development must be related to actual harm caused by the development. And in the follow-up case, Dolan v. City of Tigard, the Court additionally held that government demands must be sufficiently proportional to the actual impacts of the proposed use.
While the government in Nollan was California, the precedent it set belongs to all property owners. The City of Edmonds cannot demand use of Nathan’s land in a way that’s irrelevant or disproportionate to the permit he’s seeking. The City’s demand is unconstitutional, invalid, and cannot stand in the way of a final decision on his application. Such a rule serves no purpose other than to further aggrandize local land use authority while trampling the Constitution.
Represented free of charge by Pacific Legal Foundation, Nathan fought back in state court to restore the right to use his own property free of unlawful conditions and end the extortionate practice of “forever tree” conditions for everyone else.
On January 31, 2024, the trial court ruled that the City of Edmonds violated Nathan’s constitutional rights by refusing to grant him a permit to build his home. The requirement to plant two new “replacement trees” is an unconstitutional condition on the use of Nathan’s property. The case will now proceed to determine how much damages the City will have to pay for having unlawfully withheld Nathan’s permit for over a year.
What’s At Stake?
- The right to build a home on your private residential property is fundamental. Governments shouldn't use the permit process to extort people out of their property and money when all they want to do is build a house on their own land. Doing so makes housing less affordable for everyone.
- Government cannot force people to acquiesce to ridiculous demands in exchange for simple development permits. If government wants to take someone’s private property in exchange for a permit, there must be a direct link between the development and a specific harm it would cause, and the demand must be proportional to that impact.
