Regulatory Takings Court Decisions
This page highlights key court decisions on regulatory takings from the Washington State Supreme Court, Washington State Court of Appeals, U.S. Supreme Court, and Ninth Circuit Court of Appeals.
For an overview of the federal and state laws that affect regulatory takings in Washington State, see our page on Property Rights and Regulatory Takings.
Washington State Supreme Court
Note on Yim v. City of Seattle
The 2019 court decision Yim v. City of Seattle (Yim I) clarified the test to be used to determine whether a regulatory taking has occurred under the Washington State Constitution. In Yim v. City of Seattle (Yim II), the court expressly overruled several state court decisions that applied more complicated analysis and appeared to impose a stricter standard of reviewing government regulations impacting private property than under federal law.
The cases impacted by the Yim I and Yim II decisions are listed in an appendix to the Yim II decision.
For a more detailed description and analysis of the decision, see the summary below and our blog post Yim I and Yim II Clarify Washington Regulatory Takings and Substantive Due Process Law.
A First in Time (FIT) ordinance requiring landlords seeking to fill a rental vacancy to provide notice of their rental criteria, screen completed applications in chronological order, and offer tenancy to first qualified applicant is constitutional.
Yim v. City of Seattle (2019) – Seattle adopted an ordinance (referred to as the First in Time (FIT) rule) requiring landlords seeking to lease dwellings to provide notice of their rental criteria, screen completed applications in chronological order, and offer tenancy to the first qualified applicants (with a few exceptions). Yim, along with other landlords, challenged the ordinance, arguing that it facially violated their state constitutional rights. Yim argued that the ordinance was a per se regulatory taking for private use, infringed on his substantive due process rights, and facially on his free speech rights. The superior court agreed, and the case was granted direct review to the Supreme Court. The Supreme Court reversed.
The Court first concluded that the FIT rule did not violate the U.S. Constitution Amendment 5 nor Washington Constitution Article I section 16. If the rule involved “excessive regulation,” it could be considered inverse condemnation, a “regulatory taking,” and in violation of the constitution. Yim argued that the regulation in this instance was a per se regulatory taking as the regulation destroyed a fundamental attribute of ownership, the right to exclude others and dispose of property. The Court responded, indicating that it applies a federal definition of regulatory takings, not an independent state definition.
Yim did not show that the FIT rule facially met the regulatory takings definition. The definition of regulatory taking can only be used in the initial determination of whether "'property has actually been taken." The public/private use distinction goes only to the appropriate remedy once a taking has been established—compensation or invalidation. There are two per se categories: one if the property owner suffers a permanent physical invasion of their property and the other if the owner has been completely deprived of all economical use. If the alleged regulatory taking does not fit into either category, the court will make a case-by-case determination. Yim’s arguments did not fall into either per se category; the case did not show that the FIT rule facially effects a regulatory taking (does not on its face require property owner to suffer a permanent physical invasion of his property or a permanent physical invasion of the property).
The FIT rule does not facially violate substantive due process. The rule is subject to a rational basis review, not a heightened standard of review. The law regulating the use of property violates substantive due process only if it "fails to serve any legitimate governmental objective," making it "arbitrary or irrational." Seattle’s FIT rule was adopted to mitigate implicit bias in tenancy decisions. The court recognized the importance of mitigating implicit bias; the plaintiffs did not show that implicit bias must be allowed to continue. The FIT rule also is rationally related to its purpose. The FIT rule is based upon a recognized best practice. The plaintiffs did not meet the heavy burden of showing the rule violates substantive due process as a matter of law.
The FIT rule does not violate the right to free speech. The rule is subject to “deferential scrutiny.” The law requires factual disclosures by commercial speakers. Review is differential because a person’s “constitutionally protected interest in not providing any particular factual information in his advertising is minimal. The advertiser’s rights are protected if disclosure requirements are reasonably related to the state’s interest in preventing deception. The FIT rule does not place any restrictions on what a landlord’s criteria will be or how they should be worded; the rule only requires that landlords disclose factual information about their own rental criteria. The city met its burden of proving the rule survives deferential scrutiny; the disclosure requirement does not unduly burden the plaintiffs’ free speech. The city proved that the rule addresses a harm that is potentially real, not purely hypothetical.
Open space set-aside.
Isla Verde Int'l Holdings, Inc. v. City of Camas (2002) – The challenged subdivision conditions included a 30% "open space" set-aside and the requirement of a secondary limited access road into the proposed development for emergency vehicles. The court held that the open space set-aside condition violated RCW 82.02.020 and did not address the takings argument, but it upheld the secondary access road requirement against a substantive due process challenge.
Subdivision dedication roughly proportional.
Sparks v. Douglas County (1995) – The court determined that a nexus existed between the requirement of short plat approval of a dedication of rights-of-way for road improvements and the county's interest in the promotion of road safety. The court also determined that the exactions demanded by the county were roughly proportional to the impact of the proposed development under Dolan v. City of Tigard (1994) because they were the result of an individualized analysis conducted by the county.
No taking, but substantive due process rights violated.
Note that this decision was overruled in part by Yim v. City of Seattle (2019).
Guimont v. Clarke (1993), cert. denied (1994) – Owners of mobile home parks sought a declaration invalidating the Mobile Home Relocation Assistance Act and a permanent injunction against enforcement of the Act. The court determined that no unconstitutional taking of property without just compensation occurred because the regulation did not deny property owners all economically-viable use of their property. However, the court determined that the regulation was unduly oppressive and therefore violated the property owners' substantive due process rights.
Substantive due process test.
Note that this decision was overruled in part by Yim v. City of Seattle (2019).
Presbytery of Seattle v. King County (1990) – An owner of property containing wetlands sought damages under the theory of inverse condemnation after the county adopted an ordinance that prohibited new construction within wetland boundaries and buffer zones. The court held that, for purposes of determining whether application of a land use regulation effects an unconstitutional taking of property, the inquiry must be directed to the entire parcel of property. To determine whether a regulation violates substantive due process, the court used the three-pronged due process test: (1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner.
Ripeness of takings challenge.
Estate of Friedman v. Pierce County (1989) – Property owners challenged designation of their property as open space. The court held that exhaustion of administrative remedies is necessary before a court can properly determine a takings claim. A regulatory takings claim is not ripe for court review until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.
Remedies for excessive police power regulation.
Note that this decision was overruled in part by Yim v. City of Seattle (2019).
Orion Corp. v. State (1987), cert. denied (1988) – A corporation owning tidelands within a designated estuarine sanctuary claimed under various theories that the state and a county had taken its property by regulating its use under the Shoreline Management Act. In remanding the case for factual determinations, the court noted that the primary problem caused by an excessive police power regulation is that it requires the landowner to shoulder an economic burden, which in justice and fairness the public should rightfully bear. Landowners can be protected from the unfair burden by invoking either the constitutional guaranty that property will not be deprived without due process of law, or the constitutional requirement of just compensation whenever the state exercises its power of eminent domain to take private property for public use. The crucial difference lies in the remedy to be applied: invalidation or the payment of just compensation.
Washington State Court of Appeals
Court upheld updated Shoreline Master Program that included buffer and public access provisions.
Olympic Stewardship Foundation et. al. v. Western Washington Growth Management Hearings Board (2017) – In order to assert the unconstitutional conditions doctrine as established in Nolan, Dolan, and Koontz, a party must first establish that a constitutional right is being infringed upon. The Nolan/Dolan tests cannot be applied to a facial taking claim. Here, the challenge was to buffer and public access provisions in a new Shoreline Master Program. No individual land use permit was at issue.
Flood management ordinance upheld.
Cradduck v. Yakima County (2012) – Under its flood management ordinance, the county did not permit the plaintiff to replace a mobile home on a lot within her mobile home park located in a designated floodway. Although the trial court rejected the plaintiff's regulatory takings claim, it granted her substantive due process claim. The court of appeals reversed the trial court's substantive due process holding, concluding that the county flood management ordinance and the statute under which it was adopted (ch. 86.16 RCW) support legitimate public purposes, use means that are reasonably necessary to achieve those purposes, and are not unduly oppressive on the landowner.
Ripeness of takings claim.
Thun v. City of Bonney Lake (2011), review denied (2012) – The city rezoned approximately 30 acres of Thun’s 37-acre property. Thun brought suit against Bonney Lake, claiming that the rezone was an unconstitutional taking. Although the court rejected the rule that partial takings plaintiffs must show denial of all reasonable beneficial use of their land to demonstrate ripeness, the court held that Thun did not demonstrate ripeness in this case. The court determined that, under the facts here, the permitted uses of the property are not yet reasonably known. Because further administrative proceedings would be helpful to clarify the size and permissible uses on the parcels at issue, the case was not ripe.
Preservation board rejection of a proposal to develop a designated historical landmark property did not constitute a taking.
Conner v. City of Seattle (2009), review denied (2010) – The court of appeals held that the Seattle Landmarks Preservation Board's rejection of a proposal to develop a designated historical landmark property by constructing on short-platted lots within the property three contemporary homes, each larger than the landmark house, did not constitute a taking. No fundamental attribute of property ownership was destroyed, and the proposal was rejected in order to safeguard the public's interest in the historic environmental features of a designated landmark. The court also rejected a substantive due process challenge.
Discusses "facial" and "as applied" challenges.
Peste v. Mason County (2006) – The court of appeals rejected a regulatory takings challenge to the county's denial of the plaintiff's rezone request following the county's adoption of comprehensive plan amendments and development regulations that resulted in his rural property being designated RR 20, with an allowed residential density of one dwelling unit per 20 acres. The plaintiff had requested that his property be rezoned to allow one dwelling unit per five acres. The court's opinion presents a comprehensive overview of how "as applied" and "facial" takings challenges to land use regulations are analyzed.
Nonconforming use ordinance is upheld.
City of Des Moines v. Gray Businesses (2005) – The owner of a mobile home park did not comply with an ordinance requiring that the owners of nonconforming uses file a site plan to legally continue their nonconforming uses, and the city notified the owner that the use was no longer allowable. The court of appeals held that the city's ordinance was a valid regulation, not a taking, because the "right" to use the property for a particular use is not a fundamental attribute of ownership. Rather, it is a contingent right that is dependent upon state law and local regulations such as business license requirements and zoning.
Ban on social cardrooms as applied to an existing cardroom is upheld.
Paradise Village Bowl v. Pierce County (2004) – The court upheld the county's ban on social cardrooms as applied to an existing cardroom, finding that the prohibition was not a taking. The court held that the prohibition did not destroy the economic viability of the property. The court also held that the prohibition did not violate substantive due process: the prohibition was for a legitimate public purpose, reasonably necessary to achieve that purpose, and not unduly oppressive (it did nothing more than regulate the activity responsible for the harm created by the activity).
Ban on social cardrooms as applied to an existing cardroom is upheld.
Edmonds Shopping Ctr. Assocs. v. City of Edmonds (2003) – A city ordinance banning cardrooms as applied to an existing, permitted cardroom was deemed by the court to be a reasonable exercise of the city's police power. The court held that the ordinance neither destroyed a fundamental attribute of ownership nor imposed a private burden for a public benefit. The court also rejected a substantive due process claim by concluding the ordinance achieves a legitimate public purpose and was not unduly oppressive on the property owner.
Road requirement lacks rough proportionality.
Burton v. Clark County (1998), review denied (1999) – A requirement that a developer build a road across his property that would eventually connect with a road to be built on adjacent property was invalidated as a taking. The county's requirement lacked "rough proportionality" to the nature and extent of the impact of the proposed development.
Stub road access dedication is taking.
Luxembourg Group v. Snohomish County (1995), review denied (1995) – The county denied a subdivision application because the applicant would not agree to dedicate stub road access to a landlocked neighboring property as a condition for approval. The court determined that the dedication requirement would not remedy any problem caused by the applicant's proposed subdivision. The court held that a dedication requirement that would not remedy any problem caused by the subdivision was an unconstitutional taking of property without compensation.
U.S. Supreme Court
Court upheld a regulation that required the merger of two substandard lots.
Murr v. Wisconsin (2017) – At issue in the case was a regulation that merges together and prohibits the separate sale or development of adjacent lots under common ownership when one of the lots does not contain a minimum amount of developable land. The landowners bringing the suit owned two adjacent lots, each of which contained less than the minimum amount of developable land. The landowners claimed that the regulation constituted a taking, as it deprived them of use of one of the lots, which they wished to sell in order to fund development on the second lot. The Court affirmed the lower courts, which had held that no taking occurred because, when the property was considered as a whole, the land owners retained “several available options” for use, and the market value of the property was not significantly affected.
The Court laid out a series of factors that should be considered in such circumstances to decide if the property should be considered as a whole. These factors include the treatment of the land under state and local law, the physical characteristics of the land, and the prospective value of the regulated land. By looking at these factors, courts can decide if a reasonable landowner would anticipate that their property would be treated as one parcel or as separate tracts. Once a court has made this determination, it has established the “denominator” to be used in its takings analysis.
Supreme Court denied review of California Supreme Court decision upholding inclusionary housing ordinance.
California Bldg. Industry Ass'n v. City of San Jose, Calif. (2016) – The California Supreme Court upheld the city’s inclusionary housing ordinance requiring that 15% of new houses in development be offered at affordable housing prices. The Court held that the regulation did not involve an exaction of land or dedication of money to the public, and did not constitute an unconstitutional taking. The U.S. Supreme Court denied certiorari. Note that Justice Thomas wrote in a concurrence that the Supreme Court has yet to resolve the important issue of whether a municipality can do legislatively what it can’t do administratively, but determined this was not the case to do so.
Unconstitutional conditions doctrine.
Koontz v. St. Johns River Water Management District (2013) – In a five to four decision, the Court held a government’s demand for property from a land use permit applicant must satisfy the Nollan/Dolan requirements even when it denies the permit; and the Nollan/Dolan requirements apply to monetary exactions. Because the government denied the permit, there is no takings claim, but rather an "unconstitutional conditions claim predicated on the Takings Clause." However, "so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition."
Government-induced flooding is not automatically exempt from takings claim.
Arkansas Game and Fish Commission v. United States (2012) – The Court held unanimously that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. The Court, however, did not conclude that there was a taking in this case, and it remanded the decision to the Federal Circuit for further proceedings under the Penn Central factors for assessing regulatory takings.
Rejected Agins two-part test.
Lingle v. Chevron U.S.A. Inc. (2005) – This case, which involved a challenge to legislation that limits the rent oil companies may charge dealers leasing company-owned service stations, is significant because it repudiates the test outlined in Agins v. Tiburon (1980). The Court held that the Agins "substantially advance[s]" formula is not an appropriate test for determining whether a regulation effects a Fifth Amendment taking. That test requires an inquiry in the nature of a due process test, which reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights or how any regulatory burden is distributed among property owners.
Temporary taking.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning (2002) – The Tahoe Regional Planning Agency imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area. The Court held that this was not a per se taking and that there is no per se rule regarding the issue of whether a temporary land use restriction (even if a complete denial of all use is imposed for a finite and reasonable period), such as a moratorium, can constitute a taking.
Acquiring property after adoption of challenged regulation.
Palazzolo v. Rhode Island (2001) – The plaintiff owned property that included land protected as "coastal wetlands" on which development was greatly limited, and the plaintiff acquired the property after the restrictions had been enacted. The Court held that acquisition of title after the effective date of a regulation does not automatically bar a regulatory taking claim. Because the property retained some value, the Court rejected a Lucas-based takings claim, but it remanded the case for a determination of whether a takings occurred using the Penn Central three-factor balancing test.
Rough proportionality test is inapplicable to a permit denial.
City of Monterey v. Del Monte Dunes (1999) – The city denied a permit application for an oceanfront development based on environmental impacts and access issues. The developer claimed that the city's permit denial had deprived it of all economic use of its property. The Court recognized the right to a jury trial in a regulatory takings case, and it upheld a $1.45 million jury award to the landowner based on loss of economically viable use of its property. The Court characterized the Dolan test of rough proportionality as inapplicable to a takings claim based on denial of a development permit.
Rough proportionality required for dedication.
Dolan v. City of Tigard (1994) – The city conditioned a permit approval on the dedication of property for storm drainage and for a pedestrian/bicycle pathway. The Court held that a dedication of property as a condition of development permit approval must be roughly proportional to the impact of a proposed development.
Total taking.
Lucas v. South Carolina Coastal Council (1992) – A state law prohibited the plaintiff from building residential structures on two beachfront lots. The court held that, if a regulation results in either a "physical invasion" or a "total taking (a denial of all economic use of the land)," the owner has suffered a per se taking and is entitled to just compensation regardless of the public interest advanced in support of the restraint, unless the government can identify "background principles of nuisance and property law" that prohibit the uses the owner intends under the circumstances in which the property is presently found.
Nexus requirement for exaction.
Nollan v. California Coastal Commission (1987) – When the granting of a land use permit is conditioned upon a physical invasion of private property (e.g., dedication of easement), the condition must substantially advance the same governmental purpose as the asserted justification for that condition. There must be a logical "nexus" between the negative impact of the project and the need for a public easement across the owners' property. The Court rejected the exaction of an easement along the beach, even though the Nollans' new beachfront house would make it more difficult for passersby to see the ocean from the road, because allowing people to walk on the beach was not related to restoration of the view from the road.
Temporary takings.
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) – The county adopted an "interim ordinance" that barred construction or reconstruction of buildings within an interim flood protection zone. The Court determined that "temporary" regulatory takings that deny landowners all use of their property are not different in kind from permanent takings for which the Constitution clearly requires compensation. Invalidation of the regulatory ordinance without payment of fair value for the use of the property during the period of the taking is a constitutionally-insufficient remedy.
Physical occupation of property.
Loretto v. Teleprompter Manhattan CATV Corp. (1982) – A state law required that landlords allow the installation of cable television on their property and limited the payment from the cable company to no more than an amount determined by a state commission to be reasonable. The Court ruled the statute unconstitutional, holding that a permanent physical occupation of real property is a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the property owner. The Court reasoned that, to the extent that the government permanently occupies physical property, it effectively destroys the owner's rights to possess, use, and dispose of the property.
Adopted two-part test.
Agins v. Tiburon (1980) – In a challenge to a city ordinance that limited development of the Agins' five-acre lot to between one and five homes, the Court adopted a two-part test for regulatory takings challenges. The application of a general zoning law to particular property is not a taking if the regulation substantially advances legitimate state interests and does not deny an owner economically-viable use of their land.
Establishes factors to consider in takings claim.
Penn Central Transportation Co. v. New York City (1978) – The New York City Landmarks Preservation Commission designated Grand Central Terminal as an historic landmark, and it denied an application to build a 55-story office building atop the terminal. In denying the claim for a taking, the court announced the rule that three relevant factors must be looked at to determine whether a regulatory taking has occurred: the character of the regulation, the economic impact on the landowner, and the extent of interference with investment-backed expectations.
Regulatory takings doctrine established.
Pennsylvania Coal Co. v. Mahon (1922) – A state law that forbade coal mining in a way that caused the subsidence of, among other things, any structure used as a human habitation was applied to property subject to a deed that allowed such mining and under which the grantee assumed the risk. In this case, the U.S. Supreme Court established the regulatory takings doctrine, holding that a mere restriction by government on the use of land, in the absence of any physical occupation or appropriation of land, can trigger a Fifth Amendment right to compensation. If a regulation "goes too far," it will be recognized as a taking.
Ninth Circuit Court of Appeals
Manufactured home park zoning is not a taking.
Laurel Park Cmty., LLC v. City of Tumwater (2012) – The city enacted two ordinances for the purpose of preserving the existing stock of manufactured home parks within the city by limiting the uses of properties containing manufactured home parks and located in a newly-designated manufactured home park zoning district. Applying the Penn Central factors, the court upheld the city's ordinances against a regulatory takings challenge by manufactured home park owners. The cout concluded that the ordinances had minimal economic effect on the plaintiffs, that the impact on their invetsment-backed expectations was highly speculative, and that the ordinances did not force plaintiffs to continue operating their properties as manufactured home parks.
No taking found; weak investment-backed expectations.
Guggenheim v. City of Goleta (2010) – The court held that the city did not owe just compensation to mobile home park owners for economic losses resulting from the enactment of a mobile home rent control ordinance. The court, considering the three Penn Central factors, found that the owners' investment-backed expectations were weak in that the mobile home park had previously been regulated under an identical county ordinance that had already been in effect when the property was acquired.
Penn Central analysis applied to generally-applicable regulation.
McClung v. City of Sumner (2008), cert. denied (2009) – The court addressed whether a legislative, generally-applicable development regulation that did not require the owner to relinquish rights in real property, as opposed to an adjudicative land use exaction, should be addressed under the Penn Central or Nolan/Dollan framework, the latter of which would require that the "essential nexus" and "rough proportionality" tests be applied. In this case, the generally applicable development regulation required that all new developments include 12-inch storm pipes. The court held that this requirement is subject to review under the Penn Central analysis, and that, under that analysis, the requirement did not effect a regulatory taking.
