Presbytery of Seattle v. King County

• Decision Date: 15 March 1990
• Docket Number: No. 56111-7,56111-7
• Citation: 114 Wn.2d 320,787 P.2d 907
• Parties: , 21 Envtl. L. Rep. 21,010 PRESBYTERY OF SEATTLE, a Washington corporation, Petitioner, v. KING COUNTY, Respondent.
• Court: Washington Supreme Court

Page 320

114 Wn.2d 320

787 P.2d 907, 21 Envtl. L. Rep. 21,010

PRESBYTERY OF SEATTLE, a Washington corporation, Petitioner, v. KING COUNTY, Respondent.

No. 56111-7.

Supreme Court of Washington En Banc.

March 15, 1990.

Reconsideration Denied May 17, 1990.

Montgomery, Purdue, Blankinship & Austin, John D. Blankinship, Gale D. Barbee, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Ann Schindler, Sr. Deputy, Seattle, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

A well respected commentator on land use law, Professor Richard L. Settle of the University of Puget Sound Law School, recently wrote that "[r]egulatory taking doctrine is the most perplexing area of American land use law." ¹ By our opinion herein, we deal with that subject, elaborate upon our opinion in Orion Corp. v. State, 109 Wash.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996, 100 L.Ed.2d 227 (1988), and clarify this court's recent opinion in Allingham v. Seattle, 109 Wash.2d 947, 749 P.2d 160 (1988).

In this case, the owner of property containing wetlands appeals the dismissal of its inverse condemnation ² action based upon the owner's failure to exhaust its administrative remedies.

In 1978 the Presbytery of Seattle purchased a single family home located on approximately 4.5 acres of land in Federal Way for $60,000. The financing documents indicate the property was purchased for the construction of a church.

In 1979 the Presbytery informed the Federal Way Planning and Development Commission that in 1980 it intended to begin construction of a church. However, for financial reasons, that building plan fell through. The Presbytery continued to rent out the existing home located on the property and has never filed an application for a development permit for the property.

Part of the Presbytery's property contains a "wetland". ³ King County's wetland planner submitted an affidavit which stated that prior to the enactment of the 1986 ordinance, which is here challenged, both the State Environmental Policy Act of 1971 (SEPA) ⁴ and King County's Sensitive Area Ordinance ⁵ would have been applied to any development application since wetlands are protected by both acts. The record before us indicates that in 1981 King County conducted an inventory of wetlands and concluded that the wetlands involved in this case, Hylebos Wetland No. 18, was a "class 1" wetland. ⁶ The County provided affidavits to show that this wetland is in excess of 12,000 years old, is one of the last major wetlands in the Federal Way area and is of major environmental significance to King County. It also contains one of the few old growth cedar bogs still in existence in the Pacific Northwest. For purposes of this appeal, the parties concur that Wetland No. 18 comprises approximately one-third of the Presbytery's property. ⁷

In 1986 the County enacted ordinance 7746 (hereafter the 1986 Wetland Ordinance). The ordinance includes prohibitions on creation of new construction within the wetland boundaries and creates a buffer zone around the wetland (which may be increased if endangered species exist within the buffer) and a native growth protection easement. It is the Presbytery's argument that the ordinance prohibits the development of a substantial portion of its property and thereby effects a taking of property without just compensation. The Presbytery's inverse condemnation action alleges that the County's wetland regulations prevent it from using its land for a church or for any other economically reasonable or profitable use.

At the request of the Presbytery's attorney, a consultant studied the impact of the regulations on the property. He noted the property is zoned S-E-P which usually allows 1.2 dwelling units per acre. He drew a map of a subdivision containing five lots of the required size. He then concluded that three or possibly four of the five lots are destroyed for any use other than open space by the 1986 Wetland Ordinance.

The manager of the County's Building and Land Development Division responded that this consultant's opinion was based on the erroneous assumption that the entire parcel of property consisted of dry, buildable land. The County further stated that such a subdivision could violate not only the 1986 Wetland Ordinance, but also SEPA and King County's Sensitive Area Ordinance. The County declares that although no application has as yet been made for the construction of a church, pursuant to the zoning code a church and parking lot could potentially be built on the property.

Both parties moved for summary judgment. The County moved to dismiss on the grounds that the Presbytery had never applied for a building permit and, therefore, had failed to exhaust its administrative remedies. The County argued that it would not be futile to require exhaustion because the property could still be used for building a church, the purpose for which it had been purchased. The County also noted that its Sensitive Area Ordinance allowed for development of wetlands if application of the wetland ordinance "would deny all reasonable uses of a property". ⁸

The trial court granted the County's motion to dismiss based on the landowner's failure to exhaust its administrative remedies. The Court of Appeals affirmed in an unpublished opinion. ⁹ We herein consider the two issues we have determined to be dispositive and affirm both the Superior Court and the Court of Appeals.

ISSUES

ISSUE ONE. Does a land use regulation which prohibits development of a portion of an undivided parcel of property constitute a "taking" of the portion which must remain undeveloped?

ISSUE TWO. Did the Superior Court and the Court of Appeals correctly apply the exhaustion doctrine to the Presbytery's inverse condemnation action?

DECISION

PREFATORY NOTE. The issues presented in this case are interrelated and cannot be analyzed as separate and distinct inquiries. It is impossible to analyze the exhaustion doctrine and its futility exception without first having a clear understanding of the tests to be utilized for regulatory takings and substantive due process violations. In considering factual futility, it is necessary to determine whether the governmental body can provide a solution to the land use problem which would avoid the conclusion of an unconstitutional taking or a due process violation. Any case which considers the futility exception to the exhaustion requirement must view it in the context of the constitutional definition of a regulatory "taking". Therefore, this opinion commences with a consideration of recent state and federal case law regarding constitutional limitations on land use regulations.

ISSUE ONE.

CONCLUSION. A land use regulation which prohibits development of one portion of an undivided parcel of property does not necessarily constitute a "taking" of the portion which must remain undeveloped. Mere regulation on the use of land has never constituted a "taking" or a violation of due process under federal or state law. The problem in any given case is to determine when such a regulation exceeds constitutional bounds. In order to determine whether such a regulation would be unconstitutional either as a "taking" or as a violation of substantive due process, it is necessary to follow the proper tests for inverse condemnation and for substantive due process violations due to excessive land use regulation.

The United States Constitution, U.S. Const. amend. 5, provides in relevant part,

nor shall private property be taken for public use, without just compensation.

The Constitution of the State of Washington, Const. art. 1, § 16, provides in pertinent part:

No private property shall be taken or damaged for public or private use without just compensation having been first made ... ¹⁰

The "tests" for over-regulation have until recently proved somewhat of a quagmire of constitutional theory vacillating between substantive due process and "takings" theory. Both this court and the United States Supreme Court have in the past struggled with the difficult determination of where a mere regulation ends and a "taking" commences.

In 1987 the United States Supreme Court attempted to alleviate the confusion in a trilogy of land use regulation cases. Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). In that same year we also decided Orion Corp. v. State, 109 Wash.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996, 100 L.Ed.2d 227 (1988) (Orion II), which attempted to reconcile past federal and state cases involving regulatory (land use) "takings". Orion II utilized and coordinated United States Supreme Court authority, case law of this court and scholarly comment to begin to devise a comprehensive formula for use in determining the constitutionality of land use regulations.

DETERMINATION OF WHETHER TO UTILIZE A "TAKING" ANALYSIS

OR A DUE PROCESS ANALYSIS

In this state, a land use regulation which too drastically curtails owners' use of their property can cause a constitutional "taking" or can constitute a denial of substantive due process. ¹¹ These two constitutional theories are alternatives in cases where overly severe land use regulations are alleged. It is critical that these two grounds be separately considered and independently analyzed because the remedies for each of these types of constitutional violation are different.

To determine which of these two constitutional tests to utilize, the threshold inquiry a court must make is whether the challenged regulation safeguards the public interest in health, safety, the environment or the fiscal integrity of an area. ¹² A regulation which does that is to be contrasted with one that goes beyond preventing...