1 year ago

Washington’s “relevant parcel” analysis is pure shenanigans

By Brian T. Hodges Senior Attorney

Takings law is famous for its thorny inquiries. One of the prickliest is the so-called “relevant parcel” determination. In every regulatory takings case, the court must begin by identifying the nature of the property at issue—i.e., the “relevant parcel.” It sounds easy, and it should be, but it isn’t. In the decades since the Supreme Court, in Penn Central Transportation Co. v. New York City (1978), declared that a takings analysis focuses on the “parcel as a whole,” the lower courts have pondered the meaning of that phrase, resulting in conflicting rules and inconsistent judgments.

Luckily, the U.S. Supreme Court is set to address this issue later this year in Murr v. Wisconsin.

Sadly, while we were waiting on Murr, Washington courts ventured into the “relevant parcel” thicket to poor results.

To illustrate, I’m going to tell a silly story. Very silly. But sometimes the strategies taken by the government to avoid the Takings Clause demand nothing more than rank silliness.

Okay, so imagine that you’re a child with a bratty older brother. He’s always stealing your food—especially the tater tots. Your mom, tired of the squabbles, lays down the law, “I don’t want to be bothered unless he takes all of your tater tots, junior. When he does that, he’ll have to give you his allowance.” Girded by mom’s law—the Constitution of childhood— you fearlessly take your place at dinner table, twelve tots ready for feasting.

Well, your brother, besides being a brat, has the craft of a fairy-tale wolf. Without regard to mom’s law, he swipes all twelve tater tots.

“Moooooooooom,” you cry, “he took all my tots.”

You expect justice, quick and sure. You expect to be made whole for his misdeeds. But no, your brother raises a finger, signaling for delay as he pops a tot in his mouth. Then turning to your mother, he says between bites, “I most certainly didn’t take all his tots …”

You gasp, pointing at the empty plate.

He winks in response then continues, “Last week he had at least eight tots … and the week before he had seven. Considering those, I couldn’t possibly have taken all of his tots.” He punctuates his logic by popping the twelfth tot into his mouth.

Your mom, perhaps over-tired from her long shifts, ponders his arguments, then proclaims, “Your brother’s right … If my math’s correct, you’ve had at least twenty-seven tots in the past couple weeks. He only took twelve tonight. That’s less than half of your tots. I don’t see any way I can make your brother give up his allowance when he left so many tots on your plate.”

“But my plate’s empty …” You protest in vain. “I’ve got nothing to eat.”

Okay, so I told you it’d be silly. But what isn’t silly is that the same logic is being used to deprive Washington landowners of significant investments in property. That is precisely what happened in Kinderace v. City of Sammamish.  In that case, Elliott Severson purchased a parcel of commercial-zoned property located among other commercial development along a busy street. At the time he bought the land, there was ample space to build a small restaurant or store while respecting all critical area restrictions. But, over the course of a few years, the city ratcheted up its critical areas regulations to the point that his property was rendered useless. And when it came time to pay for having taken the property, the city refused, offering the tater tot excuse—that because Severson had been involved in developing neighboring properties in the past, he wasn’t deprived when the city refused to issue any approvals on his commercial-zoned (and taxed) property. The fact that he was left holding an empty plate didn’t matter.

That is not justice.

Yesterday, PLF filed a petition for review with Washington’s Supreme Court, asking it to determine whether the “relevant parcel” inquiry, as set out in Penn Central, allows the court to combine an owner’s interests in two legally distinct, but previously commonly-owned, adjacent parcels when determining the extent of property that a court should consider when reviewing a regulatory takings claim. The petition argues that the U.S. Supreme Court has never endorsed such an aggregative approach to determining one’s property rights. To the contrary, the Court has consistently criticized such an approach, which only operates to dilute the real impact of regulation on any given parcel. At the very least, the petition asks the Court to grant review and hold the case pending the U.S. Supreme Court’s resolution of Murr.

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