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Home My WebLink About07-22-15 YPC PacketF'O 11114 111111111 E COMMUNITY DEVELOPMENT DEPARTMENT Joan Davenport, AICP, Director Planning Division 129:NortL ,Secon I Street, tad Floor Yakima, ashin, toll 9890 w74)°i,,t�Wyakiin.awaW (,),)I,erri) i::r6l1. Nanning City of Yakima Planning Commission PUBLIC HEARING City Hall Council Chambers Wednesday July 22, 2015 3:30 p.m. - 5:00 p.m. YPC Members: Chairman Dave Fonfara, Vice -Chair Scott Clark, Al Rose, Bill Cook, Patricia Byers, Ron Anderson, Carmen Mendez Citi Planning Staff; Joan Davenport (Community Development Director/Planning Manager); Jeff Peters (Supervising Planner); Valerie Smith (Senior Planner); Robbie Aaron and Trevor Martin (Assistant Planners); Rosalinda Ibarra (Administrative Assistant); and Lisa Maxey (Department Assistant) Agenda I. Call to Order II. Roll Call III. Staff Announcements IV. Audience Participation V. Approval of the Meeting Minutes for June 24, 2015 VI. CONTINUED PUBLIC HEARING: Airport Safety Overlay (TXT#003-15, SEPA#020-15) Additional Information will be posted on-line at 1t1 wnrIT rw r ti *a� , sa r vice lannrn agenda- pl4111ftin - al�li n VII. Other Business VIII. Adjourn Next Meeting: July 27, 2015 1 SIGN -IN SHEAT City of Yakima Planning Commission City Hall Council Chambers Wednesday July 22, 2015 Beginning at 3:30 p.m. Public Hearing PLEASE WRITE LEGIBLY 114 vt l/�Soot�tl,J.Co o ..... ..—...----- ... ............................... _............................................... _u ..... ........................... ....... ............................ ...................._ ............................... ........ ................... .. .... ............. __ .........._ .. _...... ............................ . ............. .... Page 1 07/22/2015 YPC Hearing FOR "t HE RECORD / FILE 4 200 South Third Street; Yaldm Washington 989M (509).575-6030 Fa)c (509)575-6160 UIViripla 1. 1. July 13, 2015 TO: Yakima Planning Commission Joan Davenport, AICP, Director, Community Development Department FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Yakima Air Terminal —Safety Zone Overlay —Regulatory "Takings" Analysis Issue Presented: A question was presented at the July 8, 2015 meeting of the Planning Commission concerning whether the proposed Airport Safety Overlay Zone constituted — or could constitute — an inverse condemnation of affected property owners' property rights. In particular, could the density and development restrictions contained in the Overlay Zone so restrict an adjoining owner's rights to develop his or her property that such restrictions result in a taking of private property requiring payment of just compensation? SummaAnswer: Under federal and state court decisions, the imposition of the proposed Overlay Zone restrictions would not eliminate all economic use or viability of the subject property, and would not constitute a "taking" requiring payment of just compensation. Discussion: A caveat up front: intensive, it is important to note principles developed and applied facts in each case. Because any analysis of "takings" claims is particularly fact that the following discussion is a discussion of general by the courts as they were called upon to address specific The law of "takings" finds its roots in two sources: the 5th Amendment of the United States Constitution (as applied to the states through the 14th Amendment), and the state constitution. In essence, the 5th Amendment to the U.S. Constitution provides that no private property shall be taken for public purpose except upon payment of just compensation. Article I, Section 16 of the Washington State Constitution provides: SECTION 16 EMINENT DOMAIN. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made.... Memorandum - Airport Safety Overlay Zones July 21, 2015 Page 2 An article prepared by Municipal Research & Services Center (MRSC) does a fine job summarizing the applicable principles: The subject of governmental "takings" of private property has become a prominent issue in the past two decades as state and local governments have started seriously confronting the issue of urban sprawl and its effect upon the quality of life - urban and rural - and the environment. A consequence of confronting this issue has been an increase in governmental regulation of private property, which, in turn, has resulted in a burgeoning property rights movement. The purpose of this page on regulatory takings is to present information on the attempt to strike a balance between the public and private interests in the use of land that is represented in the concept of takings. Both the federal and Washington State constitutions provide that the government may not take private property unless it is for a public use and just compensation is paid. Just compensation is considered to be the fair market value of the property at the time of the taking. A government may "take" property in two basic ways: (1) by physically appropriating the property, such as for a right- of-way; or (2) by regulating or limiting the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use. In the first instance, the government typically institutes eminent domain proceedings, also called condemnation. In the second instance, the government can be sued for a taking. A suit alleging a taking is also called an "inverse condemnation" action. The state constitution at article 11, section 11 grants cities and counties the police power authority to protect the public health, safety and welfare. Pursuant to that authority, a city or county may regulate the use of property. They may regulate property for purposes such as abating nuisances, enforcing building and health codes, zoning and planning, and environmental protection. However, both federal and state courts have recognized that government regulation can go "too far" so as to have the same effect on a property owner as if the government had actually physically appropriated the land. The U.S. Supreme Court first recognized such regulatory takings in 1922. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (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. In Washington State, the courts have also used a "substantive due process" test to analyze the burdens imposed by land use regulations. Both the federal and state constitutions provide due process protections through the Fourteenth Amendment and article 1, section 3 respectively. Substantive due process basically requires that a land use regulation be imposed reasonably and fairly. Under this test, 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. So, under Washington law, a land use regulation may be challenged either as an unconstitutional taking or as a violation of substantive due process, or Memorandum - Airport Safety Overlay Zones July 21, 2015 Page 3 both. A regulation is a taking if it violates the constitutional requirement of compensation when private property is taken for a public use, while a substantive due process violation occurs when a regulation exceeds the constitutionally permissible scope of the police power. Unlike the remedy for a takings, the remedy for a substantive due process violation is invalidation of the regulation. The U.S. Supreme Court has recognized the authority of a municipality to enact zoning laws. Euclid v. Ambler Realty, 272 U.S. 365, 387-88, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Planning and zoning undertaken pursuant to police power do not constitute a taking requiring compensation. As the Supreme Court noted, if an ordinance "is otherwise a valid exercise of the town's police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional," although at some point a regulation may become so onerous as to constitute a taking requiring just compensation. See, ACHIEVING AIRPORT -COMPATIBLE LAND USES AND MINIMIZING HAZARDOUS OBSTRUCTIONS IN NAVIGABLE AIRSPACE, Airport Cooperative Research Program, Legal Research Digest 14 (Gwen Chisholm Smith)(April 2012)(hereafter "Law Review Article"), at page 14. In Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), the plaintiff contended that the City's registration of its property as an historical property eliminated its ability to build a higher structure into the property's airspace. The Supreme Court held that the imposition of historical structure status, while preventing such future use of the property's airspace, did not constitute a "taking" requiring payment of just compensation. As summarized by the writer of the Law Review Article at pages 16-17: The Court rejected out of hand the argument that the appellants could segment their property rights and argue that the loss of each must be treated separately, noting that such a rule would have prevented the Court from ever upholding restrictions on development of air rights. Having established that the lack of a just compensation requirement in the Landmark Law did not render the law invalid, the Court then considered the question of whether the interference with appellant's property was such as required an exercise of eminent domain and just compensation. To that end, the Court examined the specific impact of the Landmark Law on the Grand Central Terminal. The Court found that the Landmark Law did not interfere with any present uses of the Terminal, thus not interfering with the primary expectation concerning use of the property. Moreover the record did not support the conclusion that appellants would be denied any right to occupy the airspace above the terminal. The Court also noted the availability of transferable air rights to nearby property owned by the appellants. The Court held that there was no taking, in that the regulatory restrictions were reasonably related to promotion of the general welfare, and the regulation allowed appellants reasonable beneficial use of their property, with the opportunity to enhance the site and other related properties. The Ninth Circuit Court of Appeals has also upheld local zoning restrictions and denied "takings" claims using the Penn Central analysis. In Laurel Park Cmty., LLC v. City of Tumwater, 698 F.3d 1180 (9th Cir. 2012), the Court held that manufactured home park zoning was not a taking. The City of Tumwater had enacted two ordinances for the purpose of preserving the existing stock of manufactured home parks within the city by limiting the uses of properties containing manufactured home parks and located in a newly -designated manufactured home park zoning district. Applying the Penn Central factors, the court upheld the city's ordinances against a regulatory takings challenge by manufactured home park Memorandum - Airport Safety Overlay Zones July 21, 2015 Page 4 owners. The court concluded that the ordinances had minimal economic effect on the plaintiffs, that the impact on their investment -backed expectations was highly speculative, and that the ordinances did not force plaintiffs to continue operating their properties as manufactured home parks. See also, Guggenheim v. City of Goleta, 638 F.3d 1111 (9th Cir.2010) (weak investment -backed expectations). In Conner v. City of Seattle, 153 Wash. App. 673 (2009), review denied, 168 Wn.2d 1040 (2010), the court of appeals held that the Seattle Landmarks Preservation Board rejection of a proposal to develop a designated historical landmark property by constructing on short -platted lots within the property three contemporary homes, each larger than the landmark house, did not constitute a taking. No fundamental attribute of property ownership was destroyed, and the proposal was rejected in order to safeguard the public's interest in the historic environmental features of a designated landmark. The court also rejected a substantive due process challenge. In Thun v. City of Bonney Lake, 164 Wash. App. 755 (2011), review denied, 173 Wn.2d 1035 (2012), the city rezoned approximately 30 acres of Thun's 37 -acre property. Thun brought suit against Bonney Lake claiming that the rezone was an unconstitutional taking. Although the court rejected the rule that partial takings plaintiffs must show denial of all reasonable beneficial use of their land to demonstrate ripeness, the court held that Thun did not demonstrate ripeness in this case. The court determined that, under the facts here, the permitted uses of the property are not yet reasonably known. Because further administrative proceedings would be helpful to clarify the size and permissible uses on the parcels at issue, the case was not ripe. B. Conclusion. In light of the above court decisions, it is clear that there is no "regulatory taking" where the zoning regulation is a reasonable regulation tailored to safeguard or promote a legitimate police power function, and where the regulation does not preclude all economically viable use of the affected landowner's property. Pursuant to state statutes, airports are "essential public facilities" which cannot be precluded by zoning regulations or comprehensive plans from locating within a city. RCW 36.70A.200. Additionally, RCW 36.70.547 provides: �CW 36.70.547 eneral aviation airports — Siting of incompatible uses. e Every county, city, and town in which there is located a general aviation airport that is operated for the benefit of the general public, whether publicly owned or privately owned public use, shall, through its comprehensive plan and development regulations, discourage the siting of incompatible uses adjacent to such general aviation airport. Such plans and regulations may only be adopted or amended after formal consultation with: Airport owners and managers, private airport operators, general aviation pilots, ports, and the aviation division of the department of transportation. All proposed and adopted plans and regulations shall be filed with the aviation division of the department of transportation within a reasonable time after release for public consideration and comment. Each county, city, and town may obtain technical assistance from the Memorandum - Airport Safety Overlay Zones July 21, 2015 Page 5 aviation division of the department of transportation to develop plans and regulations consistent with this section. Moreover, we have been presented with no indication that any affected property owner will be denied all viable economic use of his or her property by adoption of the proposed Airport Safety Zones. In these circumstances, I do not find any grounds for assertion of a "takings" claim based on inverse condemnation. wN +1 S raft Airport Safety Overlay Zone Revision 1/12/2015 0 2,800 5,600 1� 4 11,200 Feet Slum,: Earl, DoLorml, NAVTEQ, T,,Tm, Interroop, incre—ot P Corp, GEBCO USGS, FAO, NPS, NRCAN __j Jailor, METI. Set China (Hong Kong), lowtopo, and ffi. GIS U— Comm.. roty Legend Aiell Safe,, 0,oll, Irr. Y, D I I City Lilit, Drill Gap Cie 1 -hill Yakima,DBO.Zoning Zoning Category SR Surl-n nrlid.ulw R Single Family A R-2 Two Family RB 'ly Ifta FIR" . .......... .. t J1 11 wl -31 PMr .—I Ellin— MEN, B-2 L-1 S..uo. jnjjff§HS Hi.tri..l Scc snool C.r—wro Cout., 1,1 LCC Large Convenience Col., CBD Central Bos i .... Dlswt CentralGC .. ... .. .. General C ... e,,i,l .. . . .. .......... .PAIIV iii yl pit-dal W eto LI"d,,I,I,l . ...... M-2 Heavy Ind RD R.,,.n.1 D—olor- . . / .. . ... "4 AS Airport S,pp,� ............ ... . ... . .. . � . ............... �"f,�,,,,� . . .. ... ... ... f."- . .......... ' 7 777777 77777777/7777/17nfjq wN +1 S raft Airport Safety Overlay Zone Revision 1/12/2015 0 2,800 5,600 1� 4 11,200 Feet Slum,: Earl, DoLorml, NAVTEQ, T,,Tm, Interroop, incre—ot P Corp, GEBCO USGS, FAO, NPS, NRCAN __j Jailor, METI. Set China (Hong Kong), lowtopo, and ffi. GIS U— Comm.. roty