October 25, 2010

Court of Appeals: stream buffers took private property

By Court of Appeals: stream buffers took private property

Author: Brian T. HodgesImage025

Earlier this year, PLF stepped in to help Kipp and Marilyn Dunlap protect themselves against an uncompensated taking of their vacant residential lot in Nooksack, Washington (located just south of the Canadian border).  As you may recall, the Dunlaps purchased a quarter-acre lot with the dream of building their home there.  But a stream runs through the middle of the Dunlaps’ lot, and the city declared that land adjacent to streams constitutes an environmentally sensitive area must be kept as a no-touch buffer and is off limits to development.   

After a drawn-out attempt to have the regulations relaxed, the city stated that the only way it would consider granting the Dunlaps a variance to build 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.  The Dunlaps could not accept the city’s demands, so the city denied the variance – and with it, their right to build a house.

The Dunlaps sued the city, arguing that the city’s enforcement of its stream buffers constituted an uncompensated taking of private property for public use.  The trial court ruled in the Dunlaps’ favor, concluding that the city’s actions had a devastating impact on the Dunlaps’ fundamental property rights, resulting in a taking and requiring just compensation.

The city appealed, arguing that a local government’s environmental regulations should trump a landowner’s right build a home on a lot zoned for residential use (and coincidentally surrounded by dense residential development).  This is when PLF got involved and filed a brief in support of the Dunlaps, pointing out that in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court rejected the argument that government can regulate away constitutionally protected property rights. 

Simply put, when the government enacts regulations that destroy fundamental attributes of private property, it is liable for a total taking.  The reason for the regulation is irrelevant; it must pay for the property.  This morning, the Court of Appeals agreed with PLF, affirming the conclusion that the city’s enforcement of its stream buffers deprived the Dunlaps of all economically viable use of their lot.

For more information on this case, please visit PLF’s website.

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