Court’s failure to review Thun opinion leaves many questions unresolved

Last week, the Supreme Court of Washington decided not to review the appellate opinion in Thun v. City of Bonney Lake.  The Thun case arose out of the city’s denial of property owner Karl Thun’s application to develop condos on his property in Bonney Lake, Washington.  Thun sued the city under the theory that the denial amounted to a taking of his property without just compensation.  From the beginning, the city argued that Thun’s claim was not “ripe,” and therefore the court was barred from issuing a decision in Thun’s favor.  The city won that argument at the trial court, and the Washington Court of Appeals affirmed the trial court’s decision late last year.

We are disappointed that the case will go no further because PLF supported Thun’s petition for review by filing an amicus brief urging the Court to take the case.  Now that review has been denied, it is important to consider the issues the Court decided not to address:

(1) The court of appeals’ opinion does not apply the U.S. Supreme Court’s “final decision” rule for ripening a takings claim, as that rule was expressed in a PLF case called Palazzolo v. Rhode Island.

(2) The court of appeals’ opinion misapplies basic elements of takings law, leading to confusion about the differences between various takings rules.

(3) The Washington Supreme Court refused to reconsider old case law suggesting that a property owner must show a “total” taking in order to ripen a claim that the government has taken less than all of his property.

Let’s look at these problems one at a time.

First, the Thun opinion indicates that Washington courts hesitate to recognize Palazzolo, the case that established that a takings claim is ripe once the claimant has obtained a final decision showing that the permissible uses of the property are known to a reasonable degree of certainty.  Instead, the appellate decision in Thun seems to require property owners to engage in an extensive process for “exhausting their remedies” before filing a takings claim, even when that means submitting multiple applications for economically infeasible projects no one wants to build.  Not only is this an expensive and impractical rule, it sets Washington law in conflict with federal constitutional precedent that should control.

Next, the Thun decision perpetuates a critical mistake in Washington takings law that will continue to confound property owners in the future.  The appellate opinion conflates the “posture” of a takings claim with the legal theories for analyzing the claim.  What does that mean?  Well, a takings claim can be brought as a “facial” challenge or an “as applied” challenge.  A facial challenge alleges that the mere enactment of a regulation constitutes a taking.  And an as applied challenges alleges that the application of a regulation to a particular piece of property amounts to a taking.

The court’s opinion confuses facial and as applied challenges with “categorical” and “partial” takings claims, which are separate theories upon which a taking may be based.  For example, a regulation that causes a physical invasion of property creates a “categorical” taking because it is considered to be a taking without any deeper inquiry into economic impact or other factors.  On the other hand, a regulation (not causing a physical invasion) that destroys only some of the property’s value might constitute a “partial” taking, depending on the regulation’s character and economic impact in light of the property owner’s investment-backed expectations.

The Thun opinion mistakenly equates “facial” takings challenges with “categorical” claims, such that the court does not leave room for the possibility that a property owner may allege a facial partial takings claim.  The court also conflates “as applied” challenges with “partial” takings claims, seemingly foreclosing a property owner from bringing an as applied challenge under any of the categorical takings theories.  This could prove problematic for takings claimants in future cases.

Finally, the Washington Supreme Court missed an opportunity to fix language in some of its older takings cases intimating that a property owner may not ripen a partial takings claim unless the owner can show that the government denied him all reasonable use of his property.  Of course, this rule makes no sense because it says that, in order to prove a claim for partial deprivation of value is ripe, a property owner must first show that he has been deprived of all value.

It’s disappointing to see that the Washington Supreme Court does not believe the issues in Thun merit review.  We are confident that the errors created or exacerbated by the Thun opinion will be repeated in future land use cases.  When that happens, PLF will be there fighting on behalf of property owners for constitutional, reasonable, and practical rules.  We will not stop until that goal is achieved.