Daily Development for
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS; "BACKGROUND
PRINCIPLES:" The Public Trust
Doctrine is included as a "background principle of State law" under
Lucas and precludes a taking argument, even when 100% of the plaintiff's value
has been destroyed by a regulatory control, when the affected property is
subject to the public trust responsibility of the State due to the fact that it
consists of tidelands that are part of the navigable waters of the state.
10121 Esplanade Properties, LLC, v. City of
In 1991 Esplanade acquired certain tidelands property for $40,000. The property, as characterized by the court,
consists of first class tideland, is under water roughly half of the day
"during which time it resembles a large sand bar." Esplanade proceeded to seek approval to build
nine waterfront homes to be constructed on platforms supported by pilings.
The homes would have been near to a large city park and marina.
Probably a good investment if there wasn't the little problem of the City's
permit process.
The City determined that on-site parking was required, but that there could
be no parking constructed over water in a residential development.
Esplanade appealed this decision to the Washington Supreme Court, which
upheld the decision on the grounds that single family residential activity was
not a water dependent or water related use (apparently
interpreting the local ordinance and state zoning laws.)
Esplanade then began the process of bringing a takings claim, and found its
way to this Ninth Circuit decision, which upheld a granting of partial summary
judgment to the City on Esplanade's claims based upon substantive due process
and regulatory takings.
As to the due process claim, the court reiterated a doctrine it has
established in prior cases that there can be no due process claim when the
complained of action is addresses issues covered specifically in Constitutional
text - such as the Just Compensation Clause. It rejected the notion that a recent U.S.
Supreme Court case had altered this rule.
On the takings issue, the court assumed that the plaintiff could demonstrate
that 100% of the value of plaintiff's property had been lost as a direct
consequence of the city regulation, but concluded that this is an acceptable
consequence for land use controls that are based upon "background
principles of state law" under Lucas.
Here the "background principle" in question was not the
nuisance doctrine - the most commonly stated basis for non-compensable
state land use regulation - but rather the Public Trust Doctrine.
The court noted that the tidelands of the state were part of the state's
public trust, and the state lacked the power to convey such lands other than
subject to the supervening and non-waivable authority
of the State to protect the public interest in the management of the State's
water resources. Here, the trust
consisted of a responsibility to protect the right of "navigation,
together with incidental rights of fishing, boating, swimming, water skiing,
and other recreational purposes. . . " The court
found this trust established both through the Washington Constitution and the
legislative declarations of the State.
Although the State had already sold off approximately 60% of
Esplanade argued that at the time it acquired the property the local zoning
ordinances would have permitted its development, and that consequently there
was no public trust issue here. The City
had already determined that the public trust could be preserved even with the
residential development Esplanade proposed.
Consequently, when the City withdrew from this determination, it
necessarily effected a taking.
But the court cited general state statutes that required protection of
shoreline water resources, that apparently, in the court's
view, controlled the discretion of the City in establishing zoning regulations
in this area.
Consequently, Esplanade's plans "never constituted a legally
permissible use."
Comment: Doesn't the court's
analysis prove too much? If indeed the
City lacked the authority to authorize Esplanade's operations, aren't similar
already approved developments up and down the
Has the court planted a land mine under all local zoning decisions, past and
future, along
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
Items in the Daily Development section
generally are extracted from the Quarterly Report on Developments in Real
Estate Law, published by the ABA Section on Real Property, Probate & Trust
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