A basic concept of American law is the fact that the government may not take private property without just compensation. A subset of this rule addresses the conflict between the government’s ability to exercise its police power to regulate conduct on private property and the prohibition against “taking” property.

Washington developed its regulatory takings jurisprudence in the vacuum prior to the U.S. Supreme Court’s decisions defining the scope of protection afforded by the United States’ Consti-tution against regulatory takings. By doing so, Washington has a takings analysis that is somewhat different than the federal analysis.

The Washington Constitution provides that no private property shall be taken or damaged for public or private use without just compensation. Art. 1, Sec. 16.

In addressing a regulatory takings claim, the court uses a threshold test to determine whether a true taking has occurred or whether the government action was merely a deprivation of substantive due process.1 The court uses this threshold analysis to insure that the legislature is not “intimidated” with financial liability from regulatory takings claims.2

The Threshold Test
In making the threshold analysis, the court looks at two distinct issues.

1. whether the regulation “protects the public interest in health, safety, the environment, or fiscal integrity” or goes beyond prevention of a harm and “imposes on those regulated the requirement of provided an affirmative public benefit;”3 and
2. whether the regulation “destroys or derogates any fundamental attribute of ownership: the right to possess exclusively, to exclude others, and to dispose of property.”4

If either of the two issues is established, the court proceeds to the second level of the takings analysis.5 If, however, neither issue is established, no constitutional taking has occurred.6

In applying the takings threshold test, the court considers the impact the regulation has on the entire parcel, not just a particular portion of the parcel.7

The Takings Test Once the threshold test has been satisfied, the court undertakes the true takings’ analysis. The court again looks to two issues to determine whether a taking has occurred.

1. whether the regulation, “substantially advances legitimate state interests;” and
2. whether the regulation denies economically viable use of the property. 8

Note that, if the regulation does not substantially advance a legitimate state interest, the government action “automatically constitutes a taking.”9 How-ever, a regulation that fails under the first prong of the threshold analysis can advance a legitimate state interest.10 Based on the case law, it seems that even if a regulation exceeds the proper extent of police power there is no per se taking if the regulation addresses problems within the proper scope of government action.

The court has allowed two types of analysis for the second prong of the takings test: a facial challenge and an “as applied” challenge.

A facial challenge requires the property owner to show that the regulation takes any property subject to the ordinance or statute.11 The landowner must show the regulation denies all economically viable use of any parcel of regulated property in order to constitute a taking.12 Further, in order to prevail on a facial challenge, the landowner must show that the mere enactment of the regulation deprives the property owner of all economical value.13

An “as applied” challenge requires the consideration of three factors:

The economic impact of the regulation on the property;

1. the extent of the regulation’s interference with investment-back expectations, and
2. the character of the government action.14

There is little Washington case law addressing the “as applied” challenge. The purpose of this analysis is to determine “whether the regulation was unduly oppressive to this landowner.”15

In determining whether the economic impact of the regulation is unduly oppressive, the court looks to “knowledge of the uses to which property can legally be put.”16

Under the second element, one way of establishing the investment-backed expectation is to look at the vested rights doctrine to determine the rights at the time the development rights were vested in the landowner.17

The third element examines the relationship between the government action and the burdens imposed on the property. The Court will find a taking when the government action amounts merely to a “cost-shifting device” under the guise of a regulation that is not calculated to compensate for development impacts.18

This article only discusses Washington cases. Keep in mind that federal cases on regulatory takings can also apply and should be consulted when evaluating or litigating a regulatory takings case.

1. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990).
2. Id. See also Orion Corp v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. den., 486 U.S. 1022, 108 S.Ct. 1996, 100 L.Ed.2d 227 (1988).
3. Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992).
4. Id.
5. Id.
6. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990).
7. Id.
8. Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992).
9. Sintra Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992), citing Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990). See also Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992).
10. Sintra Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992). Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992).
11. Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992).
12. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990).
13. Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993). However, the Guimont decision seems to place the facial challenge into the threshold test.
14. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990). See also ASARCO, Inc. v. Dept. of Ecology, 145 Wn.2d 7y50, 43 P.3d 471 (2002).
15. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990).
16. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990).
17. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990).
18. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P. 2d 907, cert. den., 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d. 238 (1990). See also Unlimited v. Kitsap Co., 50 Wn. App. 723, 750 P.3d 651, rev. den. 111 Wn.2d 1008 (1988).