Dunlap v. Nooksack

 Victory for Pacific Legal Foundation

Courtesy of the  Common Sence Alliance  (CSA)  San Juan County

In October, Pacific Legal Foundation (PLF) won a major victory for property rights in Dunlap v. Nooksack, (Div 1 COA No. 63747-9-I). In summary, Division I of the Court of Appeals held that a city’s refusal to vary its stream buffers to allow property owners to build a house on residentially zoned property constituted a total taking under the US Supreme Court case of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

Because Lucas applied, the city’s reason for imposing the buffers was irrelevant (it couldn’t argue that the regulation was necessary for some public purpose). The only question that needed to be decided was whether the buffers denied all economically viable use of the property, and PLF won on that issue. The buffers violated the takings clause and just compensation is required.
This decision could go a long way in assisting the fight of property owners to oppose unreasonable buffers and other restrictions, but the decision is unpublished. Being unpublished means that no other courts could rely on the case as precedent.
CSA joined the PLF along with other organizations like CSA in filing a motion on 11-12-10 for partial publication of two legal decisions in the opinion:
1. The city argued that the case Orion v. State, 109 Wn.2d 621 (1987) established that local governments were immune from the takings liability when enforcing provisions of an SMP. The Court rejected this argument and agreed with PLF that the city will only be relieved of liability if it can prove that all of its decisions were mandated by the state (at which point the state will be liable).
2. The decision is the first time an appellate court has applied Lucas under the State Constitution and therefore provides what could be extremely important precedent for property owners across the state – especially where Ecology, Commerce, anti-growth activists and local governments are claiming that buffers can never be found to take private property.
The more interest that we can show in having this case published, the
 better the chances may be of having this decision become precedential

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