Court Upholds 9-Year-Old Neg Dec As Adequate Study
The Ninth Circuit U.S. Court of Appeals has rejected a takings claim and request for a jury trial filed by a property owner in Washington who disputed a zoning decision made under that state's Growth Management Act of 1990.
It was the Ninth Circuit's first takings decision since the U.S. Supreme Court voted 5-4 to uphold a takings decision and jury award of damages in May. In City of Monterey v. Del Monte Dunes at Monterey Ltd., 119 S. Ct. 1624, the high court broke new ground by allowing an aggrieved landowner to plead his case in front of a jury, which issued a $1.45 million damages award. (See CP&DR Legal Digest June and July, 1999.)
But the Ninth Circuit said Del Monte Dunes does not establish a right to a jury on every takings claim. The appellate court noted the "facts and procedural posture in Del Monte Dunes were extreme," and quite different from the case at hand.
Still, writing for the Ninth Circuit's unanimous three-judge panel, Judge M. Margaret McKeown noted, "Frankly, we have some difficulty parsing the distinctions laid out by the Supreme Court concerning when a jury trial is required. We find ourselves in uncharted territory with a map for related but different waters."
The Washington case was brought by the Buckles family, which owns 10 acres in unincorporated King County. The family purchased the property in 1974 and has occupied its single-family residence, guest house and barn since 1979. A salmon-spawning stream crosses the property. The land is in the midst of a large rural residential area, although some small commercial uses abut the Buckles' property and other neighboring properties were zoned industrial or commercial.
When King County began widespread rezoning pursuant to the Growth Management Act (GMA) in 1994, it proposed changing the Buckles' zoning from Residential with a one-acre minimum lot size, to Residential with five-acre minimums. The Buckles lobbied the King County Council and had the zoning changed to Rural Neighborhood, which allows limited commercial uses. But the King County Comprehensive Plan was challenged on numerous grounds, including a claim that the Buckles' last-minute rezoning violated the GMA's public participation requirements.
The Growth Management Hearings Board for Central Puget Sound, established by the GMA to decide appeals, ruled that the rezoning violated the public participation mandate. The hearings board sent the comprehensive plan back to the King County Council, which conducted public hearings and settled on the residential five-acre zoning for the Buckles' lot. The Buckles challenged that decision at the hearings board, but lost. They then filed substantive and procedural due process claims against King County and the hearings board members under the federal Civil Rights Act, 42 U.S.C. §1983. They later added a takings claim under the federal and state constitutions. Circuit Court Judge John Coughenour dismissed the suit against the hearing board members and issued summary judgement for King County.
On appeal, the Buckles argued that changing the zoning from commercial to residential was an unfair downzoning, and placed greater restrictions on them than on neighboring property owners who have commercial uses. They argued that the King County rezoning did not advance a legitimate county interest, was a taking without just compensation, and that a jury should decide the dispute.
But the Ninth Circuit said the Buckles ignored the facts. Their lot is part of a large tract zoned as residential and has never been used for commercial purposes, the court noted. Furthermore, the Rural Neighborhood zoning was never final and was the product of a GMA violation. "The county cannot ‘take' what the Buckles did not have. The zoning designation for limited business uses was never final and Buckles ended up exactly where they started — residential use," McKeown wrote.
The court cited landmark cases to determine that a taking did not occur. "A land use regulation does not constitute a taking if the regulation does not deny a landowner all economically viable use of the property and if the regulation substantially advances a legitimate government interest," McKeown wrote. She cited Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The Buckles did not suffer a loss because even their own appraiser valued the property at three times its 1974 purchase price. Furthermore, the court concluded, drawing a line at existing commercial uses in a rural area is a legitimate governmental activity.
As for a jury trial, the court said: "Under Del Monte Dunes, a plaintiff has the right to a jury trial on the ‘predominately factual question' of ‘whether a landowner has been deprived of all economically viable use of his property.'" Again, that was not at issue with the Buckles.
The Del Monte Dunes case was dissimilar in that the City of Monterey five times rejected proposals that appeared to comply with city-approved zoning for the property. In this case, the Buckles argued that their zoning was inconsistent with zoning on surrounding properties, the court said.
The court rejected the procedural and substantive due process takings claims and upheld the absolute immunity of hearings board members.
"If Board members were not protected by absolute immunity, we predict that many losing parties would turn around and sue the Board members in a damages action instead of appealing the Board's substantive decision to the Superior Court. … Permitting suits against the quasi-judicial decision makers would discourage knowledgeable individuals from serving as Board members and thwart the orderly process of judicial review," McKeown wrote.
Bruce Buckles v. King County, No. 98-35270, 99 C.D.O.S. 7504, 1999 Daily Journal D.A.R. 9542, filed September 10, 1999.
For Buckles: Richard M. Stephens, Groen & Stephens, Bellevue, Washington.
For King County, H. Kevin Wright and Darren Carnell, King County Prosecuting Attorney's Office, Seattle.