January 11, 2012

Who should decide whether a Washington property owner has suffered a taking?

By Brian T. Hodges Senior Attorney

In Laurel Park Community, LLC v. City of Tumwater, several manufactured home park owners challenge a city ordinance that essentially prohibits them from using their property for anything but a manufactured home park.  PLF filed an amicus brief supporting the park owners last fall, which we told you about at the time.

Now the case has taken an interesting turn.  The Ninth Circuit recently received briefing on whether it should ask the Washington Supreme Court to issue an opinion clarifying the rules that govern regulatory takings under the Washington Constitution.  This process is called certification, and it is usually invoked when a federal court must decide a case based on an issue of state law that has not been clearly settled by the state’s highest court.

The park owners’ certification motion emphasizes that the district court which originally ruled on the case did not evaluate the owners’ claim that the city’s ordinance constituted a taking under Washington law.  This, they argue, was error.  We made the same point in our brief.  The city, for its part, acknowledges that the district court failed to address the state takings claim, but argues that it does not matter because federal and Washington takings law are basically the same, and the park owners already lost their case under federal law.

Not so fast.  There are important differences between federal and Washington takings law, say the park owners, and the Ninth Circuit cannot decide the case without clear guidance on the appropriate rules for adjudicating the owners’ claim under the state constitution.  One significant difference is that history shows Washington courts are more likely than federal courts to invalidate regulations that have the effect of transferring property from one private party to another in cases where the regulations still have some purported public benefit.  Another difference is Washington law is explicit that a taking occurs when a regulation destroys or derogates a “fundamental attribute of property ownership,” such as the rights of possession, exclusion, disposal, or economically viable use.

If the court grants the motion to certify, Laurel Park may become a very important case.  This is because the Washington Supreme Court’s opinion would probably have to comprehensively review Washington takings law and set out all the ways a property owner may challenge a regulation as a taking under the Washington Constitution in order to answer the Ninth Circuit’s question.

We are eagerly awaiting the Ninth Circuit’s ruling on certification.  PLF has participated in almost all of the most important takings cases in Washington over the past twenty years, so we have a lot to tell the Washington Supreme Court about how property owners may prove a taking under the Washington Constitution.

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