Thun v. City of Bonney Lake

Decision Date08 November 2011
Docket NumberNo. 40717–5–II.,40717–5–II.
Citation265 P.3d 207,164 Wash.App. 755
CourtWashington Court of Appeals
PartiesKarl J. THUN and Virginia Thun, husband and wife; and Thomas Pavolka; Virginia Leslie Revocable Trust and William and Louise Leslie Revocable Trust, Plaintiffs/Appellants, v. CITY OF BONNEY LAKE, a municipal corporation, Defendant/Respondent.


Warren J. Daheim, Margaret Yvonne Archer, Attorney at Law, Tacoma, WA, for Appellants.

Kathleen J. Haggard, Dionne & Rorick LLP, Michael Charles Walter, Keating Bucklin McCormack Inc PS, Seattle, WA, for Respondent.

Daniel Alexander Himebaugh, Attorney at Law, Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, amicus counsel for Pacific Legal Foundation.WORSWICK, A.C.J.

[164 Wash.App. 756] ¶ 1 The ripeness doctrine ensures that regulatory takings claims are not litigated before they are fully developed at the local level. Because land use decisions involve a great deal of government discretion, courts must be careful not to weigh in on a dispute until the government has had an opportunity to render a final decision regarding the use of the land in question. Although we recognize that cases may be ripe when further administrative proceedings would be futile, we hold that takings plaintiffs Karl and Virginia Thun, Thomas Pavolka, Virginia Leslie Revocable Trust, and William and Louise Leslie Family Revocable Trust (Thun) 1 have not shown futility, or ripeness, here. Accordingly, we affirm summary judgment in favor of the city of Bonney Lake (City).


¶ 2 Thun owns 37 acres of land in the city of Bonney Lake. This land was originally zoned C2 (commercial), permitting 20 housing units per acre. On September 13, 2005, a developer submitted a site plan application for a 575–unit condominium building on Thun's property. Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wash.2d 242, 248, 218 P.3d 180 (2009). On the same day, the City rezoned approximately 30 of Thun's 37 acres as RC–5 (residential/conservation), permitting only one housing unit per 20 acres. 2 City officials have no discretion to vary this density. Bonney Lake Municipal Code (BLMC) 14.110.010(A)(3). The City denied the permit for the condominium building under the new zoning ordinance, and a hearing examiner ruled that the developer's rights under the previous zoning ordinance had not vested. Abbey Rd., 167 Wash.2d at 248, 218 P.3d 180. The developer appealed this decision, eventually reaching the Washington Supreme Court, which agreed that the developer's rights had not vested because the site plan application was not a valid building permit application. Abbey Rd., 167 Wash.2d at 259–60, 218 P.3d 180. As of the date of oral argument in this case, May 10, 2011, Thun had not submitted a valid building permit application to develop his land.

¶ 3 While the Supreme Court case was pending, Thun filed this lawsuit against the City, claiming that the rezone was an unconstitutional taking under article I, section 16 of the Washington Constitution. The City moved for summary judgment, arguing that Thun's takings claim was not ripe for review. The City contended that to show ripeness, Thun was required to submit a building permit application to clarify exactly what could be built on his land under existing regulations.

¶ 4 Thun responded that he did not need a permit application to show ripeness because the effect of the challenged regulation was clear and the City had no discretion to grant a variance. Thun also submitted the declaration of developer Giles Hulsmann to support Thun's argument that developing the land was not economically feasible under the RC–5 zoning. Hulsmann prepared two preliminary site plans under the RC–5 zoning, one showing smaller clustered lots and the other showing large lots covering the entire property. Hulsmann's plans assumed that 30 of Thun's 37 acres were covered by the rezone and assessed the cost of developing only the 30 RC–5 acres. Hulsmann asserted that the land's high development costs made development unfeasible under either plan, “with or without compatible neighborhood commercial uses on the commercial piece.” 3 Clerk's Papers at 495. In a deposition, the City's planning director testified that clustered development or large lots would be a reasonable, economically viable use of the land, without offering any facts to support this assertion. The superior court granted summary judgment and dismissed Thun's complaint.


I. Standard of Review

¶ 5 We review a grant of summary judgment de novo. Briggs v. Nova Servs., 166 Wash.2d 794, 801, 213 P.3d 910 (2009). Summary judgment is appropriate where, viewing all facts and resulting inferences most favorably to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Briggs, 166 Wash.2d at 801, 213 P.3d 910; CR 56(c).

¶ 6 The sole question presented is whether Thun's takings claim was ripe for review. As the material facts are undisputed, this is a legal question. We employ de novo review of legal questions decided on summary judgment. M.W. v. Dep't of Soc. & Health Servs., 149 Wash.2d 589, 595, 70 P.3d 954 (2003).

II. Regulatory Takings Claim

¶ 7 Article I, section 16 of the Washington Constitution provides, “No private property shall be taken or damaged for public or private use without just compensation having first been made.” Under this section, the state effects an unconstitutional regulatory taking when it enacts a regulation that goes “too far” in infringing the plaintiff's property rights. See, e.g., Orion Corp. v. State, 109 Wash.2d 621, 646, 747 P.2d 1062 (1987) ( Orion II). There are two types of takings claims, “facial” and “as applied.” Peste v. Mason County, 133 Wash.App. 456, 471, 136 P.3d 140 (2006), review denied, 159 Wash.2d 1013, 154 P.3d 919 (2007).

¶ 8 To make out a “facial” takings claim, the plaintiff must first meet the threshold inquiry to show that the regulation destroys a fundamental attribute of property ownership. Peste, 133 Wash.App. at 471–72, 136 P.3d 140 (citing Guimont v. Clarke, 121 Wash.2d 586, 605, 854 P.2d 1 (1993) ( Guimont I)). This threshold is satisfied by showing that the regulation constitutes a physical invasion of the property by the government or by showing that the regulation denies all economically viable use of the property. Guimont I, 121 Wash.2d at 602, 854 P.2d 1. “A facial challenge in which the court determines a regulation denies all economically viable use of property ‘should prove to be a relatively rare occurrence.’ Guimont I, 121 Wash.2d at 606, 854 P.2d 1 (quoting Presbytery of Seattle v. King County, 114 Wash.2d 320, 335, 787 P.2d 907 (1990)).

¶ 9 If the plaintiff cannot show that the regulation destroys a fundamental attribute of property ownership, he must bring an “as applied” takings claim. Peste, 133 Wash.App. at 472–73, 136 P.3d 140. To make such a claim, he must show that the challenged regulation goes beyond preventing a public harm to confer a public benefit, or infringes on (rather than destroys) a fundamental attribute of ownership. Guimont v. City of Seattle, 77 Wash.App. 74, 81, 896 P.2d 70 (1995) ( Guimont II), review denied, 127 Wash.2d 1023, 904 P.2d 1157 (1995). If the regulation confers a public benefit or infringes on a fundamental attribute of ownership, we analyze whether the regulation advances a legitimate state interest.4 Guimont II, 77 Wash.App. at 81, 896 P.2d 70. If it does not, there has been a taking. Guimont I, 121 Wash.2d at 604, 854 P.2d 1.

¶ 10 If the regulation advances a legitimate state interest, we balance the public interest against the economic impact on the landowner. Guimont I, 121 Wash.2d at 604, 854 P.2d 1. We consider the three Penn Central5 factors to analyze the economic impact on the landowner: (1) the regulation's economic impact on the property, (2) the extent of the regulation's interference with investment-backed expectations, and (3) the character of the government action. Guimont I, 121 Wash.2d at 604, 854 P.2d 1. An unconstitutional taking has occurred if the economic impact on the landowner outweighs the public benefit conferred. Guimont II, 77 Wash.App. at 81, 896 P.2d 70. This is known as a “partial taking” because, while there may remain a number of uses for the plaintiff's land, the government has nevertheless gone too far in restricting the property owner's rights. See Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 326, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (noting that the United States Supreme Court has not adopted per se rules in partial regulatory takings claims, but instead relies on a fact-dependent analysis of the Penn Central factors).

¶ 11 A plaintiff need not show ripeness to bring a “facial” takings claim because such a claim alleges that the challenged regulation constitutes a taking of any land to which it is applied. See Guimont I, 121 Wash.2d at 606 n. 8, 854 P.2d 1. But Thun brings an “as applied” takings claim, alleging that because of the high development costs on his land, the City's rezone constitutes a regulatory taking of his particular parcel. As such, he must show that his claim is ripe for review.

III. Ripeness
A. In General

¶ 12 In federal courts, the doctrine of ripeness seeks “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The question of ripeness “turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’...

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