Unconstitutional Regulatory Takings

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Unconstitutional regulatory takings is a description of a legal scenario where a local jurisdiction violates the Washington State Constitution by extinguishing all reasonable economic use. The regulation must address a public need, the regulation must be necessary to meet that need, and the burden must be fair. This is a hotly contested area of state and national law.


  • As usual, the MRSC has a summary of takings law
  • Eminent domain is an authority among Counties and Cities under state law.
    • 8.08 RCW - Eminent domain by counties
    • 8.12 RCW - Eminent domain by cities
    • 8.25 RCW - Additional provisions applicable to eminent domain proceedings
    • Amendment 5 US Constitution - "nor shall private property be taken for public use, without just compensation."
    • RCW 36.70A.020(6) - "Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions."
    • Article 11, section 11 grants cities and counties the police power authority to protect the public health, safety, and welfare.
    • Pennsylvania Coal Co. v. Mahon (1922): "A regulation does not, however, go "too far" so as to require compensation for a takings when it merely decreases property value or prevents property owners from doing exactly what they want with their property. As long as a regulation allows property to be put to productive economic use, the property has value and the regulation will not be deemed to deny all reasonable economic use of the property; there is no regulatory taking in that situation. Property owners do not have a constitutional right to the most profitable use of their property."
    • the courts have also used a "substantive due process" test to analyze the burdens imposed by land use regulations - a regulation must not only have a legitimate public purpose, but it must also use means that are reasonably necessary to achieve that purpose and that do not impose an unfair burden on affected property owners.
    • Grossman et al 2006 provides an indepth analysis for how to avoid unconstitutional takings.