August 8, 2012

Laurel Park oral argument today

By Brian T. Hodges Senior Attorney

The Ninth Circuit Court of Appeals will hear oral argument today in Laurel Park Community, LLC v. City of Tumwater.  As readers will recall, the issue in this case is whether a city ordinance that prohibits mobile home park owners from using their property for almost anything but a mobile home park constitutes a taking, or violates the park owners’ right to due process.  The ordinance is a problem for the park owners, who believe they should be allowed to change the use of their property, especially if operating a mobile home park becomes economically infeasible.

Our amicus brief argues that the ordinance is a taking because it singles out a few park owners to shoulder the entire public burden of providing for affordable housing.  That’s inconsistent with Armstrong v. United States, in which the Supreme Court famously remarked that the constitutional “guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens, which in all fairness and justice, should be borne by the public as a whole.”  The basic idea is that the government must compensate individuals when it takes their property to ensure that those individuals will not bear the entire cost of the public use for which their property is being taken.

We also argued that the city’s ordinance runs afoul of Washington due process precedent because it unreasonably bars conversion of the property by outlawing economically viable alternative uses.

One interesting sidenote: There is a pending motion to certify this case to the Supreme Court of Washington to resolve issues relating to the scope of Washington takings law.  Should the Ninth Circuit grant the motion, Laurel Park would become the second takings case the Washington Supreme Court has been asked to decide in the course of a week.  The other case is Lemire, which the Court agreed to take up.

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