August 24, 2010

City claims that environmental regulations should trump constitutionally protected property rights

By City claims that environmental regulations should trump constitutionally protected property rights

Author: Brian T. Hodges

Image025 Kipp and Marilyn Dunlap bought a vacant residential lot in Nooksack, Washington with the dream of building their home there.  But the city had other ideas. 

You see, Nooksack slough runs through the middle of the Dunlaps’ lot, and the city declared that land adjacent to streams constitutes an environmentally sensitive area that is off limits to development without a variance.  The city stated that the only way it would consider granting the Dunlaps a variance would be if they redesigned their home to be triangular in shape, raised on stilts, and have a floor area no more than 480 square feet.  The city would not allow the Dunlaps to put in a yard, garden, or even a fence.  In essence, the city demanded that the Dunlaps abandon their dream of building a home and instead live in Baba Yaga’s hut.

220px-IzbasmertiThe Dunlaps could not accept the city’s demands, so the city denied the variance.  The Dunlaps sued for inverse condemnation.  The trial court ruled in their favor, concluding that the city’s actions had a devastating impact on the Dunlaps’ fundamental property rights, resulting in a “total taking” under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 

The city appealed the trial courts decision, arguing that a local government’s environmental regulations should trump a landowner’s exception that he could build a home on a lot zoned for residential use (and coincidentally surrounded by dense residential development).  PLF filed a brief in support of the Dunlaps, pointing out that the city’s argument has already been rejected by the U.S. Supreme Court and Washington courts.

Image022 It is now nearly a decade since the Dunlaps first asked for permission to build their home.  Their land remains vacant and unusable.  But this may soon end.  On September 14, 2010, Division I of Washington’s Court of Appeals will hear arguments in Dunlap v. City of Nooksack.  You can follow developments in this case here.

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