A recent ruling by the Washington Supreme Court makes it more difficult for parties to claim that government regulation has resulted in an unconstitutional “taking” of their property requiring compensation.

Both the federal and state constitutions provide that the government may not take private property unless it is for a public use and just compensation is paid. The Washington Supreme Court recently held in Chong Yim v. City of Seattle, No. 95813-1 (Wash. Nov. 14, 2019)(Yim I) that Washington adopts the federal definition of regulatory takings as set forth in Lingle v. Chevron U.S.A Inc., 544 U.S. 528 (2005) (Chevron). As such, state takings case law is no longer good law if it departs from the test set out in Chevron.

The court’s decision in Yim I makes it more difficult for parties to claim an unconstitutional “taking” of their property requiring compensation. It is no longer enough for property owners to show that government regulation destroyed a “fundamental attribute of property ownership.” That is no longer a category recognized under the law of per se regulatory takings.

Now, to prevail on a regulatory takings claim in Washington, property owners must show that the regulation:

1. Results in a physical invasion of property;
2. Denies the owner all economic use of the land; or
3. Fails the balancing test the U.S. Supreme Court set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

That test requires that the court must evaluate the following factors:

1. The economic impact of the regulatory action on the property;
2. The extent to which legitimate property use expectations exist and have been interfered with; and
3. The character of the governmental action (whether it furthers an important interest and could not have been accomplished by less intrusive means).

Case law on land use exaction takings is still good law where courts evaluate those claims under the federal cases of Nollan v. California Coastal Commission, 483 U.S. 825 (1987)(logical nexus requirement for exactions) and Dolan v. City of Tigard, 512 U.S. 374 (1994)(rough proportionality required for dedication of property).