2005, 06-28 Regular Meeting Minutes MINUTES
City of Spokane Valley
City Council Regular Meeting
Tuesday,June 28, 2005
Mayor Wilhite called the meeting to order at 6:00 p.m., and welcomed everyone to the 69th meeting
Attendance: City Staff:
Diana Wilhite, Mayor Dave Mercier, City Manager
Rich Munson, Deputy Mayor Nina Regor, Deputy City Manager
Dick Denenny, Councilmember Cary Driskell, Deputy City Attorney
Mike DeVleming, Councilmember Ken Thompson, Finance Director
Mike Flanigan, Councilmember Marina Sukup, Community Development Director
Steve Taylor, Councilmember Neil Kersten,Public Works Director
Gary Schimmels, Councilmember Mike Jackson, Parks and Recreation Director
Chris Bainbridge, City Clerk
INVOCATION: Councilmember Taylor gave the invocation.
PLEDGE OF ALLEGIANCE Mayor Wilhite led the Pledge of Allegiance.
ROLL CALL City Clerk Bainbridge called roll; all Councilmembers present.
APPROVAL OF AGENDA It was moved by Councilmember Schimmels, seconded, and unanimously
agreed upon to approve the agenda as presented.
INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS Mayor Wilhite acknowledged
members of Boy Scout Troop#321, attending in partial fulfillment of their Community Merit Badges.
COMMITTEE,BOARD, LIAISON SUMMARY REPORTS:
Councilmember Schimmels: reported that he attended the Comprehensive Plan meetings last week and
heard an excellent presentation, but unfortunately, attendance was low; he encouraged everyone to attend
the upcoming July meeting.
Deputy Mayor Munson: stated that he attended the Association of Washington Cities (AWC) Conference
last week and he was re-elected to the Board of Directors; that the Board is examining its role in pushing
for legislation to financially assist cities by stopping the issuance of unfunded mandates.
Councilmember Flanigan: explained that he attended the recent Public Health District discussion of the
Board of County Commissioner's decision to not move forward with a mosquito control district.
Councilmember Denenny: said that he also attended the AWC Convention; and he attended a meeting on
Thursday regarding the TMDL (total maximum daily load) Use Analysis with the Environmental
Protection Agency (EPA), Department of Ecology (DOE), providers, and others and that there is now a
link on our website to a discussion of the task force work.
Councilmember DeVlemin!: informed everyone about Vera Water and Power's efforts to restore
customer power as a result of last week's storm; that he continues work on the 911 Board and last week's
storm gave the opportunity to further test the 911 system; and it was found that the overflow of phone
calls were incorrectly directed to the Fire Department.
MAYOR'S REPORT:
Mayor Wilhite reported that she also attended the AWC convention where the issue of unfunded
mandates was the main topic; and she also attended a performance of the Mormon Tabernacle Choir.
PUBLIC COMMENTS Mayor Wilhite invited public comments for matters not on the agenda.
Council Meeting: 06-28-05 Page 1 of 7
Approved by Council: 07-12-05
Clark Hager, 11717 E. Lenora Drive: said he was impressed with the prayer from Councilmember Taylor;
and that this week the Supreme Court took away some personal property rights, and he hopes in the future
that if that issue comes up before our city, that we stand tall on behalf of the citizens to keep our nation
free.
Brian Woods, 2009 N Long, Greenacres: regarding the wastewater treatment facility; that Spokane Valley
can't fund the facility; that we contract with the County, and the County claims they now have more
capacity; but the projected capacity is fake; that King County three times underestimated capacity and is
currently engaged in a lawsuit about capacity, and we should learn from their mistakes; builders are
giving away our potential rights if these faith estimates are wrong; mentioned the inflationary rates, and
policies and costs of extra expenses for 260 parcels; and that the County is taking away the individual's
right to subdivide their own property, and he doesn't want the City to do the same thing.
Richard Harmon, East Mission, Greenacres: regarding impact fees, he feels Council needs to look at this
topic to make sure roads, sewers, parks, and schools get and keep up with growth; that he realizes the
School District will be asking for impact fees; that there will likely be some opposition to this but he
believes it serves all citizens to examine and implement where and as needed; that impact fees are not an
extra tax but a mechanism to bring everything up to par; that everything was working fine before the big
development was started,but now we find we are short on schools, sewers, parks, streets, everything; and
that developers need to be responsible for their share of infrastructure; and he wants Council to look at
this so citizens don't get hurt from this development.
Sue Bracken, 18508 E Riverway Avenue: said there should be equal attention to citizens and developers;
that she has attended several planning meeting and sees more staff members than members of the public;
she suggested perhaps getting some groups to put together one-page sheets on the various aspects of city
government so people would know how to interact with city; and that she hopes we will find ways to
purchase land for parks, and ask developers to contribute to the cost for that; and that everyone is
responsible for making this a good city.
James Pollard, 17216 E Baldwin, Greenacres: regarding impact fees; said that he read a letter the City
received from the Builder's Association; and also the paper from the Brookings Institution which shows
positive impacts of those fees; that that different conclusions could be drawn by looking at either study;
and he gave an example of a City in Georgia where those fees worked.
Mary Pollard, 17216 E Baldwin Avenue: spoke regarding the noise ordinance not being adequate for
construction that occurs in residential neighborhoods; and suggests the currently allowed approved times
are not reasonable; and would like to see the stakeholders get together to come up with a reasonable
ordinance on times and days for construction, instead of allowing construction to start at 5:30 or 6 a.m.;
and suggests there is a need for guidance and enforcement.
1. CONSENT AGENDA Consists of items considered routine which are approved as a group. A
Councilmember may remove an item from the Consent Agenda to be considered separately.
(Note: Council may entertain a motion to waive reading and approve Consent Agenda.)
a. Approval of the Following Vouchers:
Voucher List 06-10-2005,vouchers 6957-6996, total amount$57,810.94
b. Approval of Council Study Session Meeting of June 7, 2005
c. Approval of Regular Council Meeting Minutes of June 14, 2005
d. Approval of Payroll of June 15, 2005 of$126,016.94
e. Approval to Increase 2005 Law Enforcement Agreement FTE Count to 101.767
f. Approval of and Authorization of City Manager or Designee to Execute CH2M Hill Contract
for Valley Corridor Environmental Study
g. Approval 8th Avenue Overlay Project
It was moved by Councilmember Flanigan, seconded, and unanimously agreed upon to waive the reading
and approve the Consent Agenda.
Council Meeting: 06-28-05 Page 2 of 7
Approved by Council: 07-12-05
NEW BUSINESS
2. Second Reading Proposed Helmet Ordinance—Cary Driskell
After City Clerk Bainbridge read the ordinance title, it was moved by Councilmember Denenny and
seconded by Councilmember Flanigan to approve Ordinance 05-020 with the amendment to Section E
defining persons to read "includes those individuals of five years of age and under the age of 16."
Deputy City Attorney Driskell explained that there have been no changes since the first reading. Deputy
Mayor Munson said there is a problem, although not quantified, as to the number of incidents that result
in head traumas, and questions if perhaps the better route would be an aggressive education program,
including possible funding of helmets through the Sheriff's Office, and suggests placing that issue on a
future study session for further consideration, rather than pass a helmet law. Mayor Wilhite invited
public comment.
The following spoke in opposition to the helmet ordinance, most of whom stated it is up to the individual
(or the parents) to decide whether to wear a helmet
1. Stacey Schelrf, 14216 E Wellesley; mother of Samantha Schelrf
2. Myra Gann, 1119 S Dishman Road
3. Laura Creach, 14102 E Fourth
4. Neil Hanson, 11621 E 34th
5. Karen Hanson, 11621 E 34th
The following spoke in favor of the helmet ordinance to protect the public against severe head injury
and/or death:
1. Dr. Kim Thornberry, Spokane Health District
2. Margaret Mortz, 3420 S Ridgeview Drive
3. Bill Gothmann, 10010 E 48th Avenue
4. Nancy Hill, 4821 N Sunnyvale
5. Peggy Hodges, Coordinator for Spokane County Traffic Safety Commission, 1026 W Broadway
6. Al Fisher, 13808 E Valleyway
Officer Kim Thomas, W. 1100 Mallon, Spokane City Police Officer gave information and history
concerning the Spokane City Helmet ordinance; that since the ordinance was passed in August 2004,
September and October saw usage rates of 73%; and April and May of this year show 85% usage rate,
and that goes along with what the State shows with other municipalities that have these ordinances; and
that of the collisions during the year 2003, 57% of those were adults; 2004 collisions had 58% adults; and
of the 2005 collisions so far, 50%were adults.
John Boyd, 4024 S Forest Meadow Drive: spokane concerning mixing bicycles and vehicle traffic; and
stated that he would feel safer riding on a sidewalk than in a bike lane; and suggested making our area
more bike-friendly by having more places for bicyclists to lock up their bikes.
City Manager Mercier mentioned that Councilmember Denenny's proposed change in the ordinance
prompts the need for further language change in order to maintain internal consistency, and suggested
Council consider deleting A and C on the bottom of page 3 regarding penalties, and to then renumber the
remaining provisions. Mr. Mercier also mentioned that Chief Walker was delayed in returning from out-
of-town training,but that Chief Walker had previously testified in support of the educational components
and of the need for helmets particularly for kids.
Councilmember Denenny suggested adding the friendly amendment to the motion as suggested by Mr.
Mercier; Councilmember Flanigan as seconder concurred. Councilmember Denenny said that he feels
there is a need to address this for children as an aid to parents in emphasizing the need to wear helmets,
and compared this issue to the current use of seatbelts and how it was previously accepted to allow
children to stand up in the back of cars. Councilmember Flanigan said his goal is to pass an ordinance for
children under 16 and hopes if successful, the children will be a role model for the parents to wear
Council Meeting: 06-28-05 Page 3 of 7
Approved by Council: 07-12-05
protective helmets. Councilmember DeVleming feels such an ordinance would not be enforced on a
regular basis, that education is critical, but questions passing an ordinance the police won't enforce and
the prosecutor's office won't prosecute. Councilmember Taylor thanked everyone for speaking tonight,
stated that he feels this law will not help promote the responsibility of parents in raising their children,but
he would urge an educational promotion of the importance of wearing a helmet. Deputy Mayor Munson
also stated he feels the issue should be one of personal responsibility and that he will vote against the
ordinance. Councilmember Schimmels said this is a common sense safety issue and he support the
ordinance. Mayor Wilhite added that she would not support the ordinance as she doesn't want children to
run and hide if not wearing a helmet, but that she would promote bicycle safety, and would like to assist
in providing helmets for those who can't afford them.
Roll Call Vote on the motion to approve Ordinance 05-020 with the amendment to Section E defining
persons to read "includes those individuals of five years of age and under the age of 16, and deleting A
and C on the bottom of page 3 regarding penalties, and to then renumber the remaining provisions." In
Favor: Councilmembers Denenny, Flanigan, and Schimmels. Opposed: Mayor Wilhite, Deputy Mayor
Munson, and Councilmembers DeVleming and Taylor. Abstentions: None. Motion fails.
Mayor Wilhite called for a short recess at 7:20 p.m.; and reconvened the meeting at 7:29 p.m.
3. First Reading Proposed Moratorium Ordinance—Marina Sukup/Cary Driskell
After City Clerk Bainbridge read the title, it was moved by Mayor Wilhite and seconded by
Councilmember Taylor, to accept the Planning Commission recommendation to deny the request.
Community Development Director Sukup gave the background of this issue as noted on her June 28,
2005 Request for Council Action form; and that the requested moratorium is against development of
densities of more than one house per acre until interim zoning is adopted. In response to a question from
Deputy Mayor Munson, Ms. Sukup explained that if Council agrees to a moratorium, the construction
will continue for those who already have permits. Mayor Wilhite invited public comment.
The following spoke in favor of granting the moratorium:
Gail Sherrodd, 17315 E Montgomery, Greenacres: said that she is not against development; but feels this
is being done hastily, and she wants to halt development for a short time while they strategize regarding
planning for increased traffic and school impacts, and that they want to take the time to plan a quality City
with a quality lifestyle.
Nancy Miller, 18124 E Mission: said that they submitted a petition with an additional 174 signatures, and
the intent is to allow time to complete a neighborhood plan; and that a transportation draft was included as
proof of the neighborhood's progress, and that information was not acknowledged.
Brian Woods, N 2009 Long Road: stated reasons for a moratorium are planning, studying and protecting,
and he cited several RCWs that provide legal authority for cities to enact a moratorium; that he wants
studies for implementation of impact fees for parkland acquisition and parkland and open space; and
wants to see collaborative planning and that current residents should not bear the brunt of the cost of
development.
Jim Pollard, 17216 Baldwin, Greenacres: said the entire north side of the neighborhood is shoreline
protection; that the map shows that Greenacres is located over the most desirable part of aquifer; and that
not all areas are the same.
Diane Johnson, Greenacres: said this would not be a taking; that it is vital not to give away for free all that
should be protected; they need adequate time to plan, and urged Council to examine the Supreme Court
ruling submitted earlier by Mary Pollard.
Sue Bracken, 18508 E Riverway Avenue: said that the GMA requires early citizen participation in
drafting the Comprehensive Plan; that the more public participation the better; and the need is justified by
the need to pursue further study on impact fees for parks, etc.
Council Meeting: 06-28-05 Page 4 of 7
Approved by Council: 07-12-05
Kurt Parker, N 18116 Greenacres Road: said there is a need for a moratorium to prevent nonconforming
policies; that Spokane County created a large amount of nonconforming uses without provisions for
mitigation bringing harm to many neighborhoods.
Mary Pollard, 17216 E Baldwin Avenue: recapped the petition process started more than a year ago; that
they realized they needed a re-zone based on what happened in the Ponderosa area; and explained
"Principle 3" as stated in her handout.
Alice Beattie, 7324 E Montgomery: said there was significant lack of studies for physical and
environmental discussion in the Planning Commission decision; and the larger picture of community
values was ignored; that they did not receive treatment equal to that of Rotchford Estates and Ponderosa;
and those neighborhoods didn't have to pay the fee; that she wants a study for impact fees for parks and
open spaces; and that the Planning Commission should answer to the Council and not vice versa.
Dick Harmon, 17610 E Mission, Greenacres: spoke of his understanding of the boundaries of the
neighborhood and of a difference of those boundaries as shown on the map; of concerns about the initial
petition being ignored by City Hall for about three months; that they are trying to keep the neighborhood
livable; and that they have legally met the criteria for a temporary moratorium for development based on
the need to allow planning and for environmental purposes.
Clark Hager, 11717 E Lenora Drive: said he is proud of the hours of care and service Mary Pollard has
devoted to the citizens of Spokane Valley; and they have done a remarkable job on this and other issues;
he wants to make certain damage is not created in the community; and he recommends granting the
moratorium.
Those speaking against granting the moratorium included Dave Crosby, not as chair of the Planning
Commission, but as President of the Spokane Association of Realtors, 2607 N Bowdish Road, and he
urges Council to take the time to determine if an emergency exists; and that housing drives the economy;
and if we shut that down, it will move elsewhere. Bill Gothmann, 10014 East Avenue, and member of the
Planning Commission; he presented his reasons to deny the petition as per his June 28, 2005 handout,
stating there is no threat to the public's health, safety or welfare and therefore no reason to grant a
moratorium. Mayor Wilhite invited further public comment; no further comments were offered.
During Council discussion, Public Works Director Kersten responded that yes, any development would
have to comply with the new stormwater ordinance regarding use of stormwater drywells and the
requirement for swales; and also that new regulations would be applicable to new development. Further
Council discussion included the Planning Commission addressing the concerns, that there is no
emergency, and the previous zone change has provided some relief.
Vote on the motion to accept the Planning Commission recommendation to deny the request: In Favor:
Unanimous. Opposed:None. Abstentions:None. Motion carried.
4. First Reading Proposed Ordinance,Hearing Examiner—Cary Driskell
After City Clerk Bainbridge read the ordinance title, it was moved by Councilmember DeVleming and
seconded by Councilmember Taylor, to suspend the rules and approve Ordinance 05-021. Deputy City
Attorney Driskell explained that as there are no longer any pending or potential appeals, Council could
spend more time if they desired; and added that the draft is unchanged from when first presented. Mayor
Wilhite invited public comment.
Clark Hager, 11717 E Lenora Drive: spoke about issues and people getting in trouble from moving
forward too quickly; and he recommended passing this ordinance in the correct manner. Mayor Wilhite
invited further public comment; no further comments were offered.
Council Meeting: 06-28-05 Page 5 of 7
Approved by Council: 07-12-05
City Manager Mercier also mentioned that Hearing Examiner Mike Dempsey is present should Council
want that additional resource. Councilmember DeVleming stated this ordinance appears to be
straightforward and he would like to see the process become available as soon as possible. In response to
Council question, Mr. Dempsey said he assisted in drafting the rules along with Attorney Driskell and
other attorneys who work in land use area, and that the ordinance is based on Spokane County's
ordinance but refined and improved; and not having the rules in place created a few procedural problems
with the past hearing; that the ordinance is straight-forward and he also recommends adoption as quickly
as possible. Vote by Acclamation: In Favor: Councilmembers Schimmels, Taylor, Flanigan, Denenny
and DeVleming. Opposed: Mayor Wilhite and Deputy Mayor Munson. Abstentions: None. Motion
carried.
5. First Reading Proposed Ordinance, STV 02-05 Street Vacation—Marina Sukup
After City Clerk Bainbridge read the ordinance title, it was moved by Councilmember DeVleming and
seconded to advance ordinance for STV 02-05 vacation to a second reading. After Community
Development Director Sukup went through the PowerPoint presentation; Mayor Wilhite invited but
received no public comment. Vote by Acclamation:In Favor: Unanimous. Opposed: None. Abstentions:
None. Motion carried.
6. First Reading Proposed Ordinance, STV 03-05 Street Vacation—Marina Sukup
After City Clerk Bainbridge read the ordinance title, it was moved by Deputy Mayor Munson and
seconded by Councilmember Flanigan, to advance ordinance for STV 03-05 vacation to a second
reading. Community Development Director Sukup went through her PowerPoint presentation, stated that
the representative engineer is present, and that the Planning Commission, as usual, held a hearing and
recommends approval. [Councilmember DeVleming left the room at 8:39 p.m. and returned at 8:41 p.m.]
Mayor Wilhite invited public comment; no comments were offered. Vote by Acclamation: In Favor:
Unanimous. Opposed:None. Abstentions:None. Motion carried.
7. Proposed Resolution Stating Intent to Adopt Initiative and Referendum—Cary Driskell
It was moved by Councilmember DeVleming and seconded by Councilmember Taylor, to adopt
Resolution 05-012. After Deputy City Attorney Driskell explained the powers of initiative and
referendum and of the timeline and procedure to enact those powers, Mayor Wilhite invited public
comment.
Clark Hager, 11717 E Lenora Drive: thanked Council for giving him a few minutes; said that this is what
was promised to the citizens previously and which was not given when the community was governed by
the County; and he gave the Clerk over 200 signed petitions urging passage of the initiative and
referendum process.
Dick Behm, 3626 S Ridgeview Drive: thanked Clark Hager for his work on this issue and urged Council
passage.
Dr. Phillip Rudy, 10720 E Fruithill: gave a brief history of the right of petition under Adams
Administration and said he supports this process.
It was moved by Deputy Mayor Munson, seconded, and unanimously agreed upon to extend the meeting
to 9:10 p.m.
Others speaking in favor of the resolution included Bob Blum 12722 East 15th_who supports the process
to give citizens additional resources; Tony Lazanis: who said this is a way to force the council to do the
right thing with the assistance of the citizens; Margaret Mortz, 3620 S Ridgeview Drive: who said this is a
good means of checks and balances and is an increase in citizen freedom; Chuck Hafner, 4710 S
Woodruff: said this is another element to aid in making this a good city; Ray Perry, 2020 N Eli, who
expressed his hope that the measure be approved unanimously; Mary Pollard, 17216 E Baldwin: who
echoed the sentiment that this would be a good check and balance for the City and an aid to help
Council Meeting: 06-28-05 Page 6 of 7
Approved by Council: 07-12-05
Councilmembers do their job. Mayor Wilhite invited further public comment; no further comments were
offered. Vote by Acclamation: In Favor: Unanimous. Opposed: None. Abstentions: None. Motion
carried.
It was moved by Deputy Mayor Munson and seconded by Councilmember Flanigan to extend the meeting
to 9:30 p.m. Vote by Acclamation: In Favor: Mayor Wilhite, Deputy Mayor Munson, and
Councilmembers Schimmels, Taylor, Flanigan, and Denenny. Opposed: Councilmember DeVleming.
Abstentions:None. Motion carried.
8.Proposed Resolution Stating Intent to Adopt Referendum—Cary Driskell
Mr. Mercier said the passage of the previous item now renders this item moot.
9.Proposed Resolution Authorizing 1.0 FTE Right-of-Way Construction Inspector—Nina Regor
Councilmember Taylor said he sees no emergency to move forward on this item tonight and therefore he
moved, seconded by Councilmember Denenny, and it was unanimously agreed upon to remove this item
tonight and bring the issue back at a future council meeting.
' 10. Motion Consideration: Community Development Block Grant Program Decision — Marina
Sukup
It was moved by Deputy Mayor Munson, and seconded, to adopt option #1 to defer entitlement status and
authorize the City Manager to execute a cooperation agreement with Spokane County to continue
participation in the Spokane County consortium. Community Development Director Sukup gave a brief
overview of the three options, and added that Mr. Crowley is here should Council have any questions for
him. Council briefly discussed and stated a preference for option #1. Mayor Wilhite invited public
comment; no comments were offered. Vote by Acclamation: In favor: Unanimous. Opposed: None.
Abstentions:None. Motion carried
PUBLIC COMMENTS Mayor Wilhite invited public comment; no comments were offered.
ADMINISTRATIVE REPORTS: [no public comment]
11.Animal Control Update—Nancy Hill
After Spokane County Regional Animal Protection Service (SCRAPS) Director Nancy Hill gave her
PowerPoint presentation update, there ensued council discussion and questions concerning the level of
service and what it accomplishes, on SCRAPS campaign to have citizens license their pets, and Ms. Hill's
comments on the professionalism displayed by members of her staff and of Ms. Hill's and her staff's
attempt to make the operation as cost effective as possible.
12. Outside Agencies' Presence at CenterPlace—Mike Jackson
In the interest of time, it was Council consensus to defer this item to another meeting.
There being no further business, it was moved by Councilmember Flanigan, seconded, and unanimously
agreed upon to adjourn. The meeting adjourned at 9:30 p.m.
-:. /t,(xikA..44V.) 4\A),_..6t.,
Diana Wilhite,Mayor
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_.Christine,Bainbridge, ity Clerk
Council Meeting: 06-28-05 Page 7 of 7
Approved by Council:07-12-05
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PUBLIC COMMENT SIGN-IN SHEET
SPOKANE VALLEY CITY COUNCIL MEETING
DATE: June 28,2005
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SPOKANE VALLEY CITY COUNCIL MEETING
Date: June 28, 2005
Citizen comments on item included on this agenda (see list below).
Please include your name. address and telephone number for the record. Your time will be limited to three(3 minutes)
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NEW BUSINESS AGENDA TOPICS:
2. Second Reading Proposed Helmet Ordinance—Cary Driskell
3. First Reading Proposed Moratorium Ordinance—Marina Sukup/Cary Driskell
4. First Reading Proposed Ordinance, Hearing Examiner—Cary Driskell
5. First.Reading Proposed Ordinance, STV 02-05 Street Vacation—Marina Sukup
6.First Reading Proposed Ordinance,STV 03-05 Street Vacation—Marina Sukup
7. Proposed Resolution Stating Intent to Adopt Initiative and Referendum—Cary Driskell
8. Proposed Resolution Stating Intent to Adopt Referendum—Cary Driskell
9. Proposed Resolution Authorizing 1.0 PTE Right-of-Way Construction Inspector—Nina Regor
10. Motion Consideration:Community Development Block Grant Program Decision—Marina Sukup
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PUBLIC COMMENT SIGN-IN SHEET
SPOKANE VALLEY CITY COUNCIL MEETING
DATE: June 28,2005
CITIZEN COMMENTS ON ITEMS NOT JIY ON TO WHY'S AGEN A. Please
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SPOKANE VALLEY CITY COUNCIL MEETING
Date: June 28, 2005
Citizen comments on item-: included on this agenda (see list below).
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NEW RUMNESS AGENDA TOPICS:. " CA • ' .• c\1 AtOc�l ToE4vnti r)/a(DC. MISS(OA( no-ta
2.Second Reading Proposed Helmet Ordinance—Cary Driskell
3.First Reading Proposed Moratorium Ordinance—Marina Sukup/Cary Driskell
4. First Reading Proposed Ordinance, Hearing Examiner—Cary Driskell
5. First Reading Proposed Ordinance,STV 02-05 Street Vacation—Marina Sukup
6. First Reading Proposed Ordinance, STV 03-05 Street Vacation—Marina Sukup
7. Proposed Resolution Stating Intent to Adopt Initiative and Referendum—Cary Driskell
8. Proposed Resolution Stating Intent to Adopt Referendum—Cary Driskell
9.Proposed Resolution Authorizing 1.0 FTE Right-of-Way Construction Inspector—Nina Rcgor
10.Motion Consideration:Community Development Block Grant Program Decision—Marina Sukup
•
Bicycle Helmets
Bill Godunann
June 28,2005
In a previous email, I described how vehicle accidents resulted in fatal skull fractures for
my great grandfather, age 42, and my father, age 26. Both left widows and children to
struggle without them.
I note that when the Council considered this issue a few weeks ago, there were concerns
• about taking rights away from citizens. I wish to address this issue.
If I were the only person in the City, it would make no difference whether I drove on the
left side, had junk in my yard, or polluted the air with noise. However, when there is
more than one person in a City, a society develops and my actions affect others. As a
result, for the good of the whole, we pass ordinances that take away my personal
freedoms.
Since any such ordinance is a compromise between the freedom of the individual and the
good of the whole, I suggest that we ask ourselves four critical questions. Let me ask
these questions concerning the helmet ordinance.
What is the cost of not adopting the ordinance?
1. More children will lose their dads and moms.
2. More parents will lose their children.
3. Fewer people will use helmets.
4. Our police and fire responders will have to respond to more skull fractures and
deaths.
5. Our society will bear a greater financial cost through Social Security survivor
•
benefits, hospitalization expenses, and rehabilitation expenses.
What are the benefits of not adopting the ordinance?
1. Parents can save $20 per child who rides.
2. Parents who ride can save$30 each.
3. Riders will save five or ten seconds of time for each bike ride.
What is the cost of adopting the ordinance?
1. Adults will have to pay $30 or more for each helmet. (There are some free
helmets available).
2. Parents will have to buy a helmet for$20 or more for each child
(although there are free helmets available).
3. Police will have to take their time to cite offenders.
4. Offenders may be fined.
What are the benefits of adopting the ordinance?
1. Children's lives will be saved.
2. Adult lives will be spared.
3. Society will have to bear less cost because of fewer injuries.
4. Police and fire responders will have to attend fewer accidents and have to
endure less traumatic situations.
5. Children will retain parents; parents will retain their children.
6. The number of those wearing helmets will go up dramatically.
For me, it's a slam dunk. The benefits of adopting such an ordinance far outweigh the
cost to all of us.
Bill C)othmann
/ f°4111. /64.111/44 -
BICYCLE 1-11_I MET LAW
*Courts have consistently upheld the right of the individual to decide how
to protect his or her own body from injury or death.
*Most experienced trauma surgeons believe that a cycle helmet gives only
very limited head protection. Studies have shown that they give only
marginal prevention of mild head injury and no effect on severe head
injury, or death.
*Only 8 cities in the whole United States have helmet laws that include
adults (excluding WA state which the SKC has been lobbying)
*United States Injury fatalities (2004) �LG`1V GD
3,482 drownings G 2Q�5
4,749 pedestrian '10,401-%130 bicycle 1111A Evl 'r
GW OFD
*Bell Helmet Mfg. Co. is paying the Safe Kids Lobbying group to conduct
these advocacy efforts to enact or enforce helmet use legislation in
Spokane Valley.
*Tlie lobby group uses health-care costs as a reason to impose these laws.
But the cost are quite low compared to the approx:
$100 billion for obesity
$150 billion for smoking
$135 billion for alcohol related health care
Where do you draw the line, What's next, fines for obesity or smoking?,
*Crime is up 3.1% in WA. Spokane is now#1 crime city in the state. T
feel we pay law enforcement to protect us from these crimes, not to be put
on babysitting duty by spending their time and my tax dollars with illegal
bicyclists.
*47% of bicyclists killed lived in 4 states; CA,NY ,FL&TX.
The lobby group says adults should have to be role models for children.
I say children need to learn that there is a difference between being a child
and an adult. Adults drive cars, children don't. Adults drink or smoke, do
these adults let their children drink.& smoke? T don't have children and I
am not responsible for being a role model for other people's children.
Education is the key, not legislation.
*This lobby group has many multimillion-dollar companies behind them.
We should ask them to put their money where their mouth is and instead of
putting it on the backs of law enforcement why don't they educate the
public with public.service announcements, if they actually care about
keeping kids safe.
-S. 1 lei rnl rres�a re.� W1 k t �
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City of Spokane Valley City Council,
I am against a mandatory helmet law for adults.
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6, Spokane Valley City Council Meeting 6 PM
Clark E. Hager, Sr. comments on the Initiative &
Referendum process
My name is Clark E. Hager, Sr. 11717 E. Lenora Dr.
Spokane Valley
Thank you for giving me these few minutes to give you
MY WORD about THE WORD given to the
citizens of the Valley by those, of us, fighting to
create our own Valley destiny by creating our own
city.
We promised those citizens we would fight to keep
our money here in the Valley, rather than subsidizing
the rest of the County between $10 to $15 million
dollars per year more than the value of the services we
were getting back from the County, as the Boundary
Review studies stated.
We promised them greater representation, than we
were getting, on the Boards and Commissions that
influenced our lives.
We promised them they would be able to control
their own destiny by getting the right to vote and
their basic rights to petition their government through
the Initiative and Referendum process - rights
•
dil:/04 eit4/e ear:
frt-c4
•
they did not have by being governed by a County that
' was not a HOME RULE CHARTERED County.
We have waited, patiently, for this City Council to
bring an Initiative and Referendum ordinance up on
the agenda, when we sadly discovered that it was not
granted to the citizens in the initial batch of ordinances
you passed. I, first, brought it to you attention last
November, in the hopes you would expeditiously, realize
the oversight and pass such an ordinance.
• Mayor, as you know, I have these petitions,
numbering in excess of 200, to present to you. They all
state:
I, the undersigned, urge Mayor Wilhite
and the City Council to pass the
ordinance granting our citizens their
basic right to petition our government
through the Initiative and Referendum
process.
I, now, present them to you, on their behalf, hoping this
will encourage you and the City Council will pass a
strong and complete ordinance, for our citizens'
benefit, on both the Initiative and Referendum.
Thank You! - Clark E. Hager, Sr. Spokane Valley citizen
I know there is a body of thought that says - you
elected me as your representative. Now, go away for
four years. If you don't like the way I'm doing my
job, as your representative, , you can kick my butt out
of office when I come up for re-election.
I don't subscribe to that philosophy. We are NOT
talking about citizen recall tights. They already have
those rights guaranteed by th'e State constitution.
The citizens are the OWNERS of our city
government. It is not incumbent on them to wait 4
years or 48 months, or 208 weeks, or 1461 days
for good government. They have every right to
expect to be involved in each of the 35,064 minutes
their representatives, and the staff, are in office. This
insures that their financial and governance is
performed in the most efficient, proper and ethical
manner for all the citizens' benefit.
That's where the :Initiative and Referendum process
plays a pivotal and checks & balances role.
Clark E. Hager, Sr.
Spokane Valley, Wa. Citizen
....6091,04116 toz 8/0 gir
•
Comments on Greenacres Moratorium Request
Bill Gothmann, Planning Commissioner
June 28, 2005
I wish to present my reasons for voting to deny the petition.
On November 18, 2004, the Commission was Oven the task of making a
recommendation to the Council concerning the Greenacres Petition for moratorium. I
have attached the original petition given the Commission. I should note that the text of
this original petition differs substantially from the text of the June 2 letter to the Council
from the North Greenacres Neighborhood Planning Committee Chair.
The Commission was given the following instructions from staff, including the Deputy
City Attorney:
"The Commission must decide if current zoning within the North Greenacres area
threatens the public's health, safety, or welfare"
The petition stated, "We are petitioning for a temporary moratorium against development
of densities of more than one house per acre until interim zoning is adopted."
Comments:
We just rezoned the area to R3.5. Thus, by our actions, we have already denied
the petition.
The petition goes on, "We are asking for a zone change that accommodates the recent
rights we had under SR-1.
Comment:
Growth management does not permit SR-1 (suburban residential) zones within an
urban area. Thus, we do not have the ability to fully grant the petition.
The next paragraph states the neighborhood's intent: "larger lot sizes, gardens, small
orchards, animals, and some truck farming." We understand the neighborhood's
concerns. i believe that this is an area with special characteristics we need to preserve.
They also state that they are"writing a neighborhood plan for adoption into the
Comprehensive Plan."
Comment:
Although the Comp Plan can include the goals and methods by which
neighborhoods can develop their plans, it should not include the neighborhood
plan, itself. In addition, this is not a"health, safety, or welfare" issue justifying a
moratorium.
•
North Greenacres is "concerned due to the near proximity of the river that our health and
safety will be compromised without a moratorium."
Comment:
I share their concern for the River. However, I believe that this is adequately
addressed through the Shorelines Management Act. Furthermore, this is a city-
.
wide issue for the Council to address—not a local neighborhood issue.
They express concern whether"the present waste management facility has the capacity to
effectively treat all the additional effluent from both the city and county new
developments ... ."
Comment:
Again, this is a city-wide issue for the Council to address. If there is to be a
moratorium on sewer connections, it should be for the whole city, not just for one
neighborhood.
Their final comment seeks a"resolution for establishing policy" concerning quality of
life issues. They specifically mention PUDs. I believe that our recent adoption of new
PIJD regulations addresses this issue.
In my view there were no threats to the public's health, safety, or welfare that would rise
to a level justifying a moratorium for the North Greenacres area. Thus, I had no choice
but to vote against the petition.
Bill Gothmann
' ' I
To the City of Spokane Valley City Council & Planning Dept.
We ,the undersigned ,are the resident landowners and primary stakeholders
of North Greenacres Community whose boundaries were defined in 1993 as
follows: North and West Boundary is the Spokane River and the South
Boundary is Mission Avenue and the East Boundary is Barker Road. The
Simpson Subdivision in the southeast corner is excluded. The owner
occupied plats represents the primary stakeholders who are committed to
preserving the traditions, customs and culture and economic stability of our
neighborhood.
WE ARE PETITIONING FOR A TEMPORARY MORATORIUM AGAINST
DEVELOPMENT OF DENSITIES OF MORE THAN ONE HOUSE PER ACRE
UNTIL INTERIM ZONING IS ADOPTED. WE ARE ASKING FOR A ZONE
CHANGE THAT ACCOMODATES THE RECENT RIGHTS WE HAD UNDER SR-1.
We the undersigned agree that this is an old established neighborhood dating
back 100 years, sharing a common culture. The keeping of larger lot sizes,
gardens, small orchards, animals, and some truck farming characterize the
historical foundations of this local area. Approximately 85% of parcels are
single family residences occupied by owners. We have a tradition of larger
parcels with over 50% of these parcels being larger than 1 acre as pursuant
to a study done in 1994 by Spokane County.
We are committed to the process of writing a Neighborhood Plan for
adoption into the Comprehensive Plan
Furthermore, we are concerned due to the near proximity of the river,
that our health and safety will be compromised without a moratorium.
THE ABILITY TO BRING SEWER PIPE OR PROPOSALS FOR NEW WASTE
MANAGEMENT FACILITIES DOES NOT MEET GMA CONCURRENCY.
UNLESS THE PRESENT WASTE MANAGEMENT FACILITY HAS THE
CAPACITY TO EFFECTIVELY TREAT ALL THE ADDITIONAL EFFLUENT
FROM BOTH CITY AND COUNTY NEW DEVELOPMENTS , IT POSES A
PUBLIC SAFETY HAZARD. (The danger as posed by the recent accident provokes
serious thought. This issue , by overwhelming evidence must be solved.)
WE are also seeking adoption of a resolution for establishing policy that
mitigates impacts that effect traditions, culture, and customs, economic
stability, and quality of life. (i.e. horse keeping and a PUD side by side)
Greenacres Moratorium Request Comments
lune 28, 2005
First let me begin by saying, should I be bold enough to think you might remember my face from the June 6,
council meeting,this is my opportunity to apologize for being politically incorrect.
I do admit, it was all I could do to keep from jumping up and yelling,"I Object".
Additional information supporting a May 2004 North Greenacres moratorium request had been hand
delivered to City Hall six days prior to that meeting. In that information, we reiterated our request for a
building moratorium and a petition with 174 signatures. The intention of that petition was, and is to allow
us the time needed to complete our neighborhood plan. A portion of that plan, a TRANSPORTATION DRAFT
was included as proof of the neighborhood's effort and progress. It was that information I expected to be
acknowledged and it was not.
In hindsight, it was obvious to me that no council member or support staff, present at that meeting, had
reviewed or seen the information.
I also thought it possible,that the information had never even been delivered, which leads me to believe a
very serious communication problem exists. Whether it's caused by the Neighborhood or by
miscommunication within City Hall, it needs to be corrected.
The City of Spokane Valley has a planning process for Greenacres that will result in land use densities
needed in line with the Growth Management Act. The Neighborhood acknowledges changes are coming. We
are a tight knit community. We also have a vision of what those changes should entail.
The Comprehensive plan makes reference to Neighborhood/sub-area planning. Because of that
acknowledgement, it would seem logical that the Planning Commission and the City Council would embrace
and accept, or at the very least, review the Community's efforts before allowing piecemeal development.
Piecemeal development of underutilized parcels is undermining the implementation of the overall effort we
will soon present to you in the form our North Greenacres Neighborhood Plan. New developments with 40
foot wide streets, curbed with sidewalks will perpetuate existing patterns of development and conflict with
the anticipated neighborhood/sub-area plan.
We are asking for a temporary, "period of time"delay in further sub-division approval until the Greenacres
Neighborhood plan can be adopted. Whether adopted in part or in full, at the very least, we will have a basis
on which to move forward.
The City of the Spokane Valley has come to fruition with the promise of responsive government for its
citizens. North Greenacres Neighborhood would be the first and representative neighborhood of that very
promise. As citizens of the new City of Spokane Valley, we are trying desperately to get through to our City
Council. Yes, personalities get in the way. Personalities should not interfere with sound planning practices.
If you walked into this room tonight with a predisposition to deny the temporary,"period of time"delay for
further sub-division approval, please give it further consideration and review all of the information we have
submitted.
Our vision is fading day by day as a result of lost and tabled requests.
Time is of the essence.
Once again,the citizens of North Greenacres are asking for a favorable ruling.
Thank You,
Nancy Miller
Greenacres Resident
Page 1 of 1
Chris Bainbridge
From: Sue Colman
Sent: Tuesday, June 28, 2005 8:27 AM
To: Cary Driskell; Chris Bainbridge
Subject: FW: moratorium ordinance on agenda for council June 28, 2005
•
Cary,
Mary has your name spelled incorrectly and I don't see your name Chris.
Thought I would e-mail this to both of you.
Sue
Sue Gorman
Administrative Assistant •
City of Spokane 'valley
11707 E. Sprague Avenue
Spokane Valrey, WA 99206
(Prone: 509-688-0180
FAX: 509-688-0194
sgolman(cr�.spokanevalley.orq
"When a team of dedicated individuals makes a commitment to act as one...the sky's the limit."
From: Mary Pollard [mailto:maryp @icehouse.net]
Sent: Monday, June 27, 2005 5:54 PM
To: Ddenneny @spokanevalley.org; Marina Sukup; Sue Golman; Mike Devleming; Gary Schimmels;
cdriscoll @spokanevalley.org; Richard Munson; Diana Wilhite; mflannigan @spokanevalley.org; Steve Taylor
Subject: moratorium ordinance on agenda for council June 28, 2005
•
Dear Honorable Mayor, Councilmembers, Ms. Sukup, Mr. Driscoll,
We have prepared a report regarding a temporary moratorium on building development. I've emailed the report.
Ms. Bainbridge is making copies of the two color maps of the aquifer that distinctive show what an important part
of the aquifer North Greenacres area is, as well as where the river intersects this same area.
The following link is the full report of the Supreme Court ruling that supports municipalities in utilizing temporary
moratoria as a planning tool and clearly states this cannot be construed as a "takings" by developers.
I also attached an executive summary of Paying for Prosperity of a 35 pg report on how Impact Fees actually are
the grease that keeps the economy going. It is a distinctive report since it is a longtitudinal study and measured
economic growth while utilizing impact fees. It is by the prestigious Brookings Institute. With all your reading I
believe this will be more helpful and you can read the larger work by using its link.
http://www.planning.org/amicusbriefs/pdf/tahoesierra.pdf
Please consider enacting the moratorium for North Greenacres Neighborhood.
Best Wishes,
Mary Pollard
Chair
North Greenacres Neighborhood
6/30/2005
June 28, 2005
Spokane Valley City Council
Re: North Greenacres Moratorium
Reasons for Moratorium: Planning, Studying, and Protecting
RCW 36.70.795 and 36.70A.390 provide for a city to enact a moratorium as a method by which
local government may preserve the status quo so that new plans and regulations will not be
rendered moot by intervening development.
A. Legal Authority for Cities to Enact Moratorium
A limited Moratorium does not constitute a "takings."
Principles for a Moratorium
B. Summary of Issues
1. Spokane Valley's Comprehensive Plan Process
2. Neighborhood Planning to resolve transportation, parks, etc
3. Citizen Involvement in Plans that effect Land Use, Zoning, Ordinances
4. Studies Needed to Adequately Address Infrastructure
i. Schools
ii. Parks
iii. Sewer and Waste Water Treatment Facilities
5. Impact Fees
6. Environmental
i. Area Geography
ii. Proximity to River
iii. Distance to Aquifer
iv. Natural Drainageways and Stormwater
v. Protection of River and Aquifer'
7. Decisions Cannot Be Arbitrary and Capricious
8. Transportation
i. Geographically isolated by river on two sides and freeway on the third.
ii. Access to area is usually limited to two roads
iii. Barker Bridge and Road will be under construction — Leaving only 1
road — Flora Rd.
iv. Neighborhood roads in poor condition — increased danger from
development and construction generated traffic.
North Greenacres Neighborhood requested this moratorium last August. This
development moratorium, reflected by 174 new signatures this June 2005, reiterated
the petition of last August 2004. The purpose of this petition was to allow full
participation in the development of the city's new Comprehensive Plan and adoption
of policies, studies and regulations. We are asking for studies for implementation of
impact fees, so they can be enacted by ordinance for parkland acquisition in our area,
as well as development of parkland and open space. Time is needed for the City to
1
complete their Park Master Plan. We also request school and transportation impact
fees studies be completed. If development continues without capturing this needed
revenue the necessary taxes could well force many residents to lose their homes.
Spokane Valley Public Works Department has commented that they would like to do
an area wide transportation study of the Greenacres area. We need to avoid a
piecemeal approach to planning. Projections of cost for new fire equipment, police
and the cost of staffing both of these agencies should be part of the impact fee study
since projected population has already been determined. We would like to see
collaborative planning with Pall stakeholders. We are also concerned about cost to new
homeowners but at the same time are committed to ensuring that the neighborhood
receive the necessary infrastructure.
Environmental Concerns Needing Study for Protection of Citizens
The entire north side of this neighborhood is Shoreline Protection and the adjacent uses
will impact all the areas within Shoreline Protection designation. We researched the
effect of development on the river, and found the following information through the
USGS. The ground elevation is 1990. The river's high elevation is 1960 and low
elevation is 1950 ft. That equates to a mere 30 to 40 feet of ground filtration between
the land surface and level of the aquifer.
The map we provided shows that Greenacres is located over the most desirable part
of the aquifer, (see maps), the highest level of transmissivity and the highest
specific yield of the aquifer. This has led to complacency in protecting our aquifer
and river. We have heard many of our concerns overlooked by oversimplification in
stating, The entire Valley is over the aquifer." All areas are not the same. We are
the deepest part of the aquifer and provide the greatest yield of water. We continue
to request that this area be treated with the same concern as you would a wellhead
because this area has the highest volume of trasmissivity. (Bolke and Vaccaro,
1981). This part of Greenacres also overlays the river and we have an exchange
between the aquifer and the river. From Barker to Sullivan, the river feeds the
aquifer. The natural topography of the land slopes downward toward the river
throughout this area. You can see Flora becomes a conduit to deposit all of the
storm water and road pollutant directly into the river. Historically, storm water was
cleaned as it ran through the natural drainageways. These are now being filled in.
On Baldwin, drywells are taking their place. Rather than being filtered through a
large area of gravel and fines, it will be a point saturation through the bottom of the
drywell. This creates an intensely concentrated point of pollutants including
pernicious chemicals that do not break down from bacteria. These are man made
chemicals. The swale areas have been compacted along with every other inch of the
property they prepared for roads and development.This should not happen. Yet,
we witnessed rigorous soil compaction of areas where swales are designated. Soil
compaction greatly reduces the function of the swale since it will not be able to filter
because it is too compacted. This will allow incubation of mosquitoes that carry the
West Nile Virus. This needs to be addressed. These all are serious public health
2
hazards. Many older properties that have been fallow fields have lost the oral log of
where the drainageways appear and will become problems for future owners.
Temporary Moratoria — An effective Planning Tool — not a taking
Most cities upon incorporation enact a one year moratorium in order to plan.
Business pressures didn't want that to happen and most residents were unaware.
We are drafting our first comprehensive plan and it is vital that we don't continue
to give away for free all that should have been protected as a future legacy for
our children.
The city's push to quickly adopt a plan without allowing adequate time for
research and planning is a disservice to the staff and citizens of this city. The
city cannot continue development under old practices and rules. This
compounds the problems and escalates shortsighted practices leading to lack of
revenue necessary for the infrastructure.
There are important principles that guide the need for a moratorium according to
the Supreme Court ruling that is attached.
Principle 1: Reasonable Moratoria allow the regulating body the necessary time
to study and formulate solutions to significant land use and environmental
problems affecting society.
The Supreme Court ruled in April 23, 2002 that property owners or developers
claims of regulatory "takings" were unfounded. The Tahoe Regional Planning
Agency (TRPA) authorized a temporary moratorium. The ordinance and
resolution banned development for a limited period, these regulations preserved
the bulk of the future developmental use of the property.
1. Temporary moratoria are fundamental to the planning process and are
traditionally recognized by courts and authorized by state statutes as
background principles of state law. Petitioners (Developing Interest)
conceded in their opening brief that planning or time out moratoria are
validly used by planning agencies to provide "breathing space" and
contend only that the "dubbed temporary moratorium", in this case was in
fact, a permanent substantive change in regulations. (Petitioners; Brief at
4-5)
•
3
Spokane Valley's Comprehensive Planning process is in fact a
permanent substantive change in regulation and land use.
Temporary moratoria constitute a normal delay in the planning process and
. cannot constitute a facial partial or temporary taking.
Spokane Valley will not face substantive legal risk since temporary moratoria is
an appropriate and effective planning tool. Interim development controls and
moratoria are fundamental to a rational, defensible planning process.
A Colorado court recognized that a temporary halt on development
activity during a period of study is not only reasonable, but also
ensures that government acts in a manner that is thoughtful and
deliberate, not arbitrary and capricious. Williams v. City of Central,
907P.2d701,706(Colo.Ct. App. 1995) This was upheld by the attached
Supreme Court decision.
Spokane Valley is writing their first Comprehensive Plan. GMA•requires early and
continuous citizen participation. Areas residents that have sought relief through
planning measures for their area should not continue to have to pay the cost
while catering to development interests. Residents in our area are facing
thousands of dollars in fencing improvements, increased taxes and bonds for
new schools due to development pressures. Parks are woefully underserved, the
City's Park Master Plan is not completed, nor is there money to purchase the
necessary parkland to adequately serve the public.
An enacting authority must diligently pursue completion of the planning process,
including studies, analyses, public participation, and the drafting of legislation.
The need for the moratorium is justified by the need to pursue further study of
the matter at hand. (i.e. Waste Water Treatment, impact fees, parks plan, SVCP
Process)
The significance of planning to zoning regulation was fully recognized when the
U.S. Department of Commerce issued the Standard State Zoning and Planning
enabling Acts in 1926 and 1928. There must be a reasonable standard to avoid
tyrannizing property owners.
The Comprehensive Plan is the essence of zoning. It is a rational process that
protects us from a "Gallup poll" or mob rule. 74 Mich. L. Rev. 799(1976 and
Geo-Tech Reclamation Indus v Hamrich, 886 F2d 662(4d' Cir. 1989)
4
Principle 2: The need for temporary planning moratoria is the prevention of
nonconforming uses or development inconsistent with the purposes and policies
of the planning legislation being formulated.
Spokane County created an enormous amount of nonconforming uses without
any provision for mitigation bringing harm and upheaval to many neighborhoods
and areas. While at a GMA meeting, some of the staff found amusing a
description of the likelihood of horses chewing on a neighboring home if there
was only a 5 foot setback. Yet, a few weeks later the city drafted an ordinance
without ensuring that abutting acreages would be protected with privacy fencing.
This was with full knowledge of harm it would potentially bring to many citizens.
This has accrued thousands of dollars in expense to protect landowners from
potential hazards that could bring lawsuits.
North Greenacres Neighborhood wisely asked for a moratorium while petitioning
for rezoning, to address the other mitigation measures needed and to take part
in the Comprehensive Plan process. North Greenacres Neighborhood is
concerned about the river and aquifer, as well as transportation. We asked for
time to address these concerns. Unfortunately, there wasn't a timely response.
It was truly a case of the stable being shut after the horses were let
out.
In fact, the Supreme Court describes it exactly in this manner.
"Any movement by the governing body of a city to zone would, no doubt,
frequently precipitate a race of diligence between property owners, and the
adoption later of the zoning ordinance would in many instances be
without effect to protect residential communities—like locking the
stable after the horse is stolen." Downham v. City Council of Alexandria, 58
F .2d 784, 788 (E.D. Va. 1932)
This was written during an age where common sense prevailed. North
Greenacres found that by the time the city council signed the rezone ordinance,
every development was vested and got under the zoning wire, as well as
increased the density of one development from 32 to 55.
As stated in Chicago Title and Trust Co. v. /Village of Palatine, 22 III App. 2d 264,
.160 N.E. 23 697, 700 (Ill. App. 1959):
"It would be utterly illogical to hold that, after a zoning commission had prepared a
comprehensive zoning ordinance or an amendment thereto, which was on file and open to public
inspection and upon which public hearings had been held, and while the ordinance was under
consideration, any person could by merely filing an application compel the municipality to issue a
permit which would allow him to establish a use which he either knew or could have known
would be forbidden by the proposed ordinance, and by so doing nullify the entire work of the
municipality in endeavoring to carry out the purpose for which the zoning law was enacted."
5
Our present draft comprehensive plan and land use map is open for examination
and public comment. Just as our rezone caused a run on vesting, we witnessed
a developer at one meeting trying to change zoning on his specific properties for
his own personal gain. Studies are necessary to keep this process from political
pressure of a monied interest.
Principle 3: Temporary Planning Moratoria is for facilitation of public debate
and input into the legislative process. Without this process regulations will likely
fail to protect the full range of community values and to accomplish the intended .
goals of the governing body. As stated by the Supreme Court of Minnesota, one
of the "persuasive reasons for permitting moratorium ordinances is to derive the
benefits of permitting a democratic discussion and participation by citizens and
developers in drafting long-range use plans." (A/mquist, 245 N. W. 2d at 826
(emphasis added).
Example 1:
The city would be addressing a larger planning and environmental concern in
insuring regulations for stormwater. Drainageway preservation needs to be
studied and enforced.
In discussion with City Manager, Dave Mercier, We asked, Who would be
responsible if stormwater provisions were inadequate and future homeowners
sued neighbors for water backing up on their property?" Who would be
responsible?" His response was, "This is a civil matter." This provokes serious
questions regarding ensuring public health and safety in the permitting and
oversight process of development, including ordinances that place the legal
responsibility with those who approve plans and them who design them. Bond
money should mandated and held by the city for a number of years. This would
allow time for drainage plan to show and ensure that it functions well in adverse,
worse case conditions. Damage to properties in worse conditions would have
recourse as city policy.
Example 2
The harm a minimum five foot setback ordinance creates was not considered in
light of all the places it would be used. It did not consider the full range of
community concerns and values. In fact, at the set back hearing I attended,
objections were treated as if we were foolish children to counter something the
wise county had already instituted. Spokane Valley seemed focused on a
uniform, one size fit all standard. This assumed there would be a home another
five feet from the property line, not livestock. Neighborhoods, such as ours,
deserve consideration. The County instituted the 5 foot setback to satisfy a
developer who wanted it. The developers and builders are at an advantage
since this is what they do on a daily basis. Most residents are busy with their
lives and rely on our elected officials to look at both sides of the coin.
6
A development Moratorium in support of a comprehensive land use planning
effort is precisely the type of delay associated with the "Process of Governmental
decision making" referred to in Agins and was the progenitor of the phrase used
in "First English'. "normal delays in the development approval process" are
not takings.
Unfortunately, the Planning Commission seems to be most distressed about
causing development delays and their subsequent costs. . Deliberations and
delays imposed on the neighborhood were much more costly due to lack of legal
protection. There was a significant lack of studies basic for fiscal and
environmental protection in making their decision. Our necessary input in the
larger planning process of the Comprehensive Plan and the larger picture of
community values was also ignored. The policies and goals adopted at the end
of the SVCP process will be moot points if the status quo is not preserved to
enable optimal planning, since this neighborhood's geography limits possibilities.
(Please note North Greenacres Neighborhood did not receive equal treatment of
Ponderosa/Rotchford Estates, nor even the consideration of the $1800 we had to
pay. The City Council gave Ponderosa/Rotchford Estates protection without fee.)
In Zilber v. Town of Moraga, the court upheld a moratorium for completion of an
open space preservation study and rejected the supposition that it was "a
taking." 692 F. Supp.1195, 1206 (N.D. Cal. 1988).
This certainly supports our request to ascertain the study and ability to have
impact fees collected for parks and open spaces. Impact fees cannot be a round
figure we take out of thin air, but require a valid study of what can be legally and
reasonably collected and an ordinance to collect them. Necessary background
data should be gathered, analysis and policies created. (Miller v. Bd.ofPublic
Works).
Law: Common Law System Distinguishes Itself from the European Civil Law by
recognizing that estates in land have present and future interest. (Ashville B.
Gulliver, Law of Future Interests at 73 (1959)
Supreme Court 14th Amendment Legal Opinion on what
Constitutes Property.
Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of
life, liberty, and property. These are fundamental rights which can only be taken
away by due process of law, and which can only be interfered with, or the
enjoyment of which can only be modified, by lawful regulations necessary or
proper for the mutual good of all. . . . This right to choose one's calling is an
• essential part of that liberty which it is the object of government to protect; and
a calling, when chosen, is a man's property right. . . . A law which prohibits a
7
large class of citizens from adopting a lawful employment, or
from following a lawful employment previously adopted,
does deprive them of liberty as well as property, without due
process of law." Slaughter-House Cases, 83 U.S. (16 Wall.) 36,
116, 122 (1873) (Justice Bradley dissenting).
Agricultural lifestyle - animal keeping - is lawful employment - it is what we
employ our time doing. We researched our zone and came to live here based on
that zoning. Non-conforming use should not render our lives useless nor be
discarded like a piece of paper. We have a right to transfer the future of what
we built to our heirs. Employing our time raising animals or crops, a chosen
profession or ad vocation is property. There is a loss of liberty. In order to
continue the diverse interests that enrich the lives of the citizens of the Spokane
Valley, there should be equal protection under the law. We recognize that we
are in transition. Ordinances can be made at any time. The city has
demonstrated their abject disregard for the suffering they have caused countless
people in this city by not bringing forward protective ordinances. It is all the
more distressing since it is an additional financial problem that must be
addressed by many of us. Our lives didn't change but we are forced to bear the
cost of protecting our immediate property from development by paying for
privacy fencing, adding trees for screening, etc. This is not an aesthetic problem
this is a serious health and safety issue as it becomes an inviting danger for
children to crawl into fenced pastures. Most of us have a fixed budget. Medical
costs are rising and continue to squeeze our budgets. The escalating housing
market has doubled the value of our properties but our uses have not changed.
We are not all engaged in trading up. We came to build our lives here not as a
real estate investment. This transition should not turn our lives upside down
when it can be prevented by policy and regulation:
Waste Water Treatment Facility
Spokane Valley is not able to fund the infrastructure of a sewer and a Waste
Water Treatment Facility. They contract with the County. Spokane County
claims they magically now have more capacity. The projected new plan for a
Waste Water Treatment Plant is a faith estimate. Things can still go awry. We
are supposed to plan responsibly. King County three times underestimated the
cost and capacity of Waste Water Treatment Facilities. There is a 2005 lawsuit
currently in progress over who had the most rights to capacity. They actually
used a lottery system to decide who was awarded the last 140 permits. Twelve
winners used up the remaining capacity— and of course the losers took it up in
court. We should learn from others mistakes.
8
At present, builders are encouraged to pay for building the sewer because they
believe it saves county dollars. In fact, they are giving away our potential
development rights and the ability of those on the 6 year plan to actually be
hooked up if their faith estimates are wrong. Spokane County and Spokane
Valley have an inherent responsibility to equally represent citizens of all financial
means. Average citizens low on the list for sewer service may end up without
the ability to hook up, if the promises of a new waste water treatment plant do
not materialize in time, and vested development rights are put ahead of those on
the "6 year plan." This smacks of a class system that rewards those with money
and ignores the average working class. We will also pay the future inflationary
rate of hook up and the county fee at a projected inflationary rate of more than
$600 than it would cost today. That is a discriminatory policy that is at a
cumulative cost of $15,600 of extra expenses for just 260 parcels. This is
average taxpayer dollars, not developer speculation dollars. The County is taking
away our individual right to be able to subdivide or develop our own property,
since we can't privately fund bringing sewer for one property. We can only
afford to do this is if we sell out to a developer.
County believes that the developer doesn't have to pay prevailing wage and can
put in sewer cheaper than the county. This is shortsighted because the lower
wage earner typically does not have benefits such as health insurance. These
same lower wages the community pays for since they must look for social
assistance and utilize our emergency rooms at a high price that we all pay for
because by law they must receive medical treatments if they come to a hospital.
Is that a savings?
This is the case we referred to earlier regarding shortsighted and incorrect
WWTP capacity projection. The lawsuit itself doesn't apply but the scenario
sounds very plausible if we do not exercise caution about protecting the river
and our aquifer.
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 53967-1-I
Title of Case: Robert A. Funk, et al., Appellants vs. City
of Duvall, Washington, et al. Respondents
File Date: 02/28/2005
SOURCE OF APPEAL
Appeal from Superior Court of King County
Docket No: 02-2-27905-8
Judgment or order under review
9
•
Date filed: 03/11/2004
Judge signing: Hon. Michael J Fox
JUDGES
Authored by Mary Kay Becker
Concurring: C. Kenneth Grosse
Faye Kennedy
The treatment plant was expected to last until the end of the century. As it turned out, however,
the plant as designed was insufficient to serve the needs of a growing city. Both the number of
households and the average use per household were greater than originally anticipated. And as
time went on, the City also had to begin dealing with pollution problems caused by the treatment
plant's discharge of effluent into the Snoqualmie River.
In conclusion, North Greenacres has demonstrated that we legally meet the
criteria for a temporary moratorium of development. This temporary moratorium
is based on the need for environmental protection, preserving the status quo to
allow planning, and that the implementation of community desires to be adopted
at the end of the comprehensive planning process can be a reality, not a moot
point. The temporary moratorium gives the city time to study impact fees and
clarify stormwater and natural drainageway preservation.
North Greenacres is unlike other areas over the aquifer as shown on the map.
We hope this captures the picture and helps in the decision making process.
Please grant a building moratorium for the North Greenacres Neighborhood.
Awl weifuL
Mary Po rd
Chair of North Greenacres Neighborhood
17216 E. Baldwin Ave.
Greenacres, WA 99016
maryp @icehouse.net
10
. .
4 '
. .
11730 R.42 E. R.43 E, 117'15' A.44 E. R.45 E. R.46 W. R.6 W. 117'00' R.5 W.
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No. 00-1167
IN THE
Supreme Court of the United States
TAHOE SIERRA PRESERVATION COUNCIL,INC., ETAL.,
Petitioners,
v.
TAHOE REGIONAL PLANNING AGENCY,ET AL,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
BRIEF OF AMERICAN PLANNING ASSOCIATION AND THE NATIONAL TRUST FOR
HISTORIC PRESERVATION
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
Robert H. Freilich*
E.Tyson Smith
Jason M. Divelbiss
Freilich,Meitner&Carlisle
4435 Main Street
Kansas City, MO 64111
(816) 561-4414
* Counsel of Record for Amici Curiae
. . •
- 11730 R.42 E. R.43 E. 11r15' R.44 E. R.45£. R.46 W. R.6 W. 117•01Y Ft,5 W.
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w
EXPLANATION
4
1 .
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I
- i-- w Less than 5 10 to 1 5 16 to 20
%I
o
Pr Specific yield, in percent
ro
0 .
o
7> Figure 31. Areal variations in specific yield of the Spokane aquifer.(From Bolke and Vaccaro,1981.)
o
.1 .
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...
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7 17.17,:ij
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Transmissivity,in feet squared per second
A
g
'111" Figure 29. Areal variations in transmissivity in the Spokane aquifer.(From Bolke and Vaccaro,1981.)
...
t.)
c e.
/- •-.,.
. .
No. 00-1167
rvT E
Supreme Court of the United States
TAHOE SIERRA PRESERVATION COUNCIL,INC.,ETAL.,
Petitioners,
v.
TAHOE REGIONAL PLANNING AGENCY, ET AL.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
BRIEF OF AMERICAN PLANNING ASSOCIATION AND THE NATIONAL TRUST FOR
HISTORIC PRESERVATION
AS AMIC1 CURIAE TN SUPPORT OF RESPONDENTS
Robert H.Freilich*
E. Tyson Smith
Jason M. Divelbiss •
Fxtilieh.Lehner&Carlisle
4435 Main Street
Kansas City, MO 64111
(816) 561-4414
* Counsel of Record for Amici Curiae
•
QUESTION PRESENTED
Whether the Court of Appeals properly determined that a temporary moratorium on land
development does not constitute a taking of property requiring compensation under the
Takings Clause of the United States Constitution?
•
2
QUESTION PRESENTED
Whether the Court of Appeals properly determined that a temporary moratorium on land
development does not constitute a taking of property requiring compensation under the
Takings Clause of the United States Constitution?
•
•
• 2
•
STATEMENT OF THE CASE
Amici adopt the statement of the case as set forth by Respondents_ However,the following points
are of particular significance to the matters set forth in this brief.
The Tahoe Regional Planning Agency(TRPA)adopted Ordinance 81-5,prohibiting development in
environmentally sensitive areas from August 1981 through August 1983, in order to carry out studies,adopt
carrying capacities,and adopt the regional plan required by the Amended Tahoe Regional Compact,Pub,L,
No. 96-551, 94 Stat. 233 (1988) (authorizing a thirty-month moratorium), When it became apparent that
final adoption of the new plan required additional lime,TRPA adopted Resolution 83-21,extending the two-
year moratorium for an additional eight months to April 1984, or a total of thirty-two months—only two
months longer than the statutory authorization.
On appeal to the Ninth Circuit, the principal question was "whether a temporary planning
moratorium,enacted by TRPA to halt development while a new regional land use plan was being devised,
effected[a facial]taking of each plaintif s property under the standard set forth in Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 112 5. Ct. 2886, 120 L. Ed. 2d 798 (1992)." Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 7 (9"n Cir. 2000).
Recognizing its critical importance to their taking claim,the Preservation Council petitioned the Ninth Circuit
to accept the "conceptual severance" argument when determining the relevant property interest allegedly
taken. The Council argued that the property interest to be considered is not the entire fee simple in the
• 12
property,but rather the"temporal`slice'of each fee that covers the time span during which Ordinance 81-5
and Resolution 83-21 were in effect." Id. at 774.
Recognizing the inconsistency of Petitioners argument with this Court--s well-established precedent,
the Ninth Circuit explained:
Property interests may have many different dimensions. For example,the
dimensions of a property interest may include a physical dimension(which
describes the size and shape of the property in question), a functional
dimension (which describes the extent to which an owner may use or
dispose of the property in question), and a temporal dimension (which
describes the duration of the property interest).
Id. Citing Penn Central,438 U.S. 104,98 S.Ct.2646,57 L. Ed. 2d 631 (1978)(rejecting"airspace"as
spatial severance); and Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470, 107 S. Ct.
1232,94 L. Ed.2d 472 (1987)(rejection of"spatial"conceptual severance);Andrus v.Allard, 444 U.S.
51, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979) (rejection of"functional" severance); Agins v. City of
Tiburon,447 U.S.255, 100 S.Ct.2138,65 L.Ed.2d 106(1980)(rejection of"temporal"severance),the
Ninth Circuit held:"It would make little sense to accept temporal severance and reject spatial or functional
severance." Tahoe-Sierra, 216 F.3d at 772-74.
To not reject the concept of temporal severance,we would risk converting
every temporary planning moratorium into a categorical taking. Such a
result would run contrary to the Court:s explanation that it is>relatively rare
that government>regulation denies all economically beneficial or productive
use of land.: Lucas,505 U.S.at 1015....[T]he relevant property interests
in the present case are the whole parcels of property that the plaintiffs own.
Id. at 777. The court also held that"given the importance and long-standing use of temporary moratoria,
courts should be exceedingly reluctant to adopt rulings that would threaten the survival of this crucial planning
mechanism." id. The court concluded that the temporary moratorium adopted by TRPA did not deny all
13
use or value of the property. "Given that the ordinance and resolution banned development for only a limited
period,these regulations preserved the bulk of the future developmental use of the property. This future use
had a substantial present value." Id. at 781. "This economic reality is precisely what differentiates a
permanent ban on development,even if subsequently invalidated,from a temporary one." Id. at 781 n.26.
Finally,this case comes to the Court in a posture of a facial taking. As the Court held in Keystone,
480 U.S. 470:
Because appellees' taking claim arose in the context of a facial challenge
... the only issue properly before ... this Court, is whether the `mere
enactment'of the Surface Mining Act effected a taking... petitioners thus
face a uphill battle ... because petitioners have not claimed,at this stage,
that the Act makes it commercially impracticable for them to [make a
profit].
Id. at 494-95.
See also, Yee v. City of Escondido, 503 U.S. 519, 533-34,112 S.Ct. 1522, 118 L.Ed.2d 153 (1992)
(citing Keystone). En sum, the Ninth Circuit found that even apart from the Petitioners' assertion of a
"temporal severance"theory,the"facial"taking argument of Petitioners must fail because sufficient evidence
was presented to show that the property had use and value during the moratorium so as to require an as-
applied,ad hoc factual determination under Penn Central,and Petitioners had waived all as-applied takings
claims.2
2 The Ninth Circuit did not consider whether the development moratorium effected a compensable taking under Penn
Central,438 U.S. 104(1978). The court explained:AlTlhe only question before us is whether the rule set forth in Lucas
applies B that is,whether a categorical taking occurred because Ordinance 81-5 and Resolution 83-21 denied the
plaintiffs all economically beneficial or productive use of landA Tahoe- Sierra,216 F.3d at 773. The TRPA only
appealed the District Courtts finding of a categorical taking under Lucas and the Tahoe-Sierra Preservation Council did
not appeal the court finding of no compensable taking under Penn Central. "And even if arguments regarding the
Penn Central test were fairly encompassed by the defendants=appeal,the Petitioners have stated explicitly on this
appeal that they do not argue that the regulations constitute a taking under the ad hoc balancing approach described
in Penn Central." Id
14
SUMMARY OF ARGUMENT
1. Temporary moratoria are fundamental to the planning process and have been traditionally recognized
by the courts and authorized by state statutes as background principles of state law. Petitioners
concede in their opening brief that"planning"or"time out"moratoria are validly used by planning
agencies to provide"breathing space"and contend only that the"dubbed"temporary moratorium in
this case was,in fact,a permanent substantive change in the regulations. (Petitioners'Brief at 4-5.)
Petitioners'facial taking claim must fail because it expressly recognizes that temporary moratoria do
not constitute a taking, the very question certified by this Court; or in the alternative, the grant of
certiorari should be dismissed as"improvidently granted."
2. Temporary moratoria constitute a"normal delay" in the planning process,and cannot constitute a
facial partial or temporary taking.
3. Both First English Evangelical Lutheran Church v. County of Los Angeles,482 U.S.304, 107
S.Ct.2378,96 L.Ed.2d 250(1 987)and Lucas support the Ninth Circuit's holding that temporary
moratoria do not effect a taking. First English limited temporary takings to invalidated permanent
restrictions lasting for a temporary period of time—specifically,that once a taking has been found,
the period between the time of the taking and the eventual invalidation and rescission of the offending
15
regulation would be a temporary taking. First English,482 U.S.at 321. Lucas is clearly limited to
those relatively rare circumstances where all economically viable use and all value is permanently
removed due to the regulatory impact of the challenged regulation. Lucas,505 U.S. at 1015,see
also Palazzolo v. Rhode Island, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001).
4. Apart from"normal delays,"takings analysis requires consideration of the entirety of the property,
including temporal,as well as spatial and use elements,Penn Central,438 U.S.at 130,Keystone,
480 U.S.470(1987). The Ninth Circuit properly found that,contrary to the arguments asserted by
Petitioners,the takings analysis looks at all components of the fee,Tahoe-Sierra,216 F.3d at 774-
79. Furthermore,reviewing courts should not conceptually sever these interests"into small temporal
pieces" any more than they would sever spatial interests (e.g., setbacks)or allowable uses(e.g.,
traditional zoning restrictions). Id. Rather,courts in a facial taking claim should look at all elements
to determine whether,in totality,"all economically viable use"has been permanently removed from
the property. Id, see also Lucas, 505 U.S. at 1012.
ARGUMENT
MORATORIA, REASONABLE IN DURATION, MEANS, AND ENDS, ARE
EUNDA17ENTAL TO ACHIEVING PROPER PLANNING AND LAND USE
REGULATION ION IN THE UNITED STATES
Interim development controls and moratoria are fundamental to a rational, defensible planning
process. Prior to Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926),
courts had recognized the necessity of temporary moratoria of building permit issuance pending planning
16
•
studies as a prerequisite to a valid planning and regulatory process. Miller v.lid ofPublic Works,234 P.
381, 195 Cal. 477 (Cal. 1925), cert. den.,273 U.S. 781 (1926).3 Courts since that time have recognized
that a temporary halt on development activity during a period of study is not only reasonable,but also ensures
that government acts in a manner that is thoughtful and deliberate,not arbitrary and capricious. Williams v.
City of Central,907 P.2d 701,706(Colo.Ct.App. 1995). Regulatory agencies across the country have
used temporary moratoria and interim development controls as a legitimate means of creating breathing space
while necessary background data could be gathered,analyses conducted,and policies assessed. Patrick J.
Rohan,ZONING AND LAND USE CONTROLS, §22.01[11 (1998).
The reasonableness of a moratorium is measured by both the length of its duration and its relation to
the underlying studies supporting change in the regulations. Thus,an enacting authority must diligently pursue
completion of the planning process, including studies, analyses, public participation, and the drafting of
legislation.Id. at§22.02[2]. The need for the moratorium is justified by the need to pursue further study of
the matter at hand. Williams, 907 P.2d at 705. if, however, having established a legitimate need, the
government fails to pursue the necessary studies or to work diligently toward resolution of the matter,the
3 The significance of planning to zoning regulation was fully recognized when the U.S.Department of Commerce
issued the Standard State Zoning and Planning Enabling Acts in 1926 and 1928,respectively,including the
requirement that"Zoning be in accordance with a comprehensive plan."Professor Charles Haar has stated that one of
the important aspects of planning was to assure that property owners be protected by meaningful standards. "With
the heavy presumption of constitutional validity that attaches to legislation ... and the difficulty in judicially applying
a
`reasonableness standard,' there is danger that zoning[would]tyrannize individual property owners.'' Charles Haar,
In Accordance With a Comprehensive Plan,68 Harv.L.Rev. 1154-58(1955).
As the New York Court of Appeals stated in Udell v.Hans, 235 N.13.2d 897,901,21 N.Y.2d 463,288 N.Y.S.2d 888
(1968): "...the comprehensive plan is the essence of zoning. Without it there can be no rational allocation of land
use. It is the insurance that the public welfare is served and that zoning does not become nothing more than a Gallup
poll@ See also Daniel Mandelker,The Role of the Local Comprehensive Plan in Land Use Regulation,74 MICH.L.
Ray.799(1976);and Geo-Tech Reclamation Indus. v. Hamrick,886 F.2d 662(4th Cir. 1989)(land use regulation requires
comprehensive planning to avoid Amob rules).
17
substantive validity of the moratorium can be called into question. Id. c f.Almquist v. Town ofMarshan,
245 N.W.2d 819,826,308 Minn.52(Minn. 1976);and State ex rel.SCA Chemical Waste Serv., Inc. v.
Konigsberg, 636 S.W.2d 430, 434 (Tenn. 1982).
Moratoria have been set aside when the restraint has been determined to be accompanied by studies
unreasonable in scope, adopted in bad faith,or otherwise arbitrary or capricious. Mitchell v. Kemp, 575
N.Y.S.2d 337, 176 A.D. 2d 859 (N.Y. App. 1991)(moratoria unconstitutional on due process grounds,
where town gave no satisfactory reason for five-year delay in enacting permanent zoning ordinance);Q.C.
Const. Co. Inc. v. Gallo, 649 F. Supp. 1331 (D.R.I. 1986),af'd, 836 F.2d 1340 (1st Cir. 1987) (due
process violation where city imposed moratorium on sewer hookups but made no effort to study or remedy
problem giving rise to moratorium). Where the government enacts a moratorium with the intent of blocking a
specific development,with no legitimate,good faith interest in addressing a larger planning or environmental
concern, unlawful discrimination may be found. City of Monterey v. Del Monte Dunes, Ltd., 526 U.S.
687, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999);see also Williams, 907 P.2d at 705.
In this case, the studies undertaken by TRPA during the thirty-two-month moratorium were
specifically tied to the development of standards to slow the eutrophication of Lake Tahoe and to meet the
charge given TRPA under the Tahoe Regional Planning Compact to address this problem within a thirty-
month period. Tahoe-Sierra Preservation Council, 216 F.3d at 781-82 (accepting the district court's
finding of fact that"TRPA worked diligently to complete the regional plan as quickly as possible"). Thus,
even under an as-applied analysis,the taking claim should fail.
Three important principles underlie the need for temporary moratoria. Robert H.Freilich,Interim
Development Controls: Essential Tools for Implementing Flexible Planning and Zoning,49 J.URBAN
18
L. 65, 77-80(1971)(cited by the Ninth Circuit below,Tahoe-Sierra,216 F.3d at 777). First,reasonable
moratoria allow the regulating body the necessary time to study and formulate solutions to significant land use
and environmental problems affecting society. Elizabeth A.Garvin&Martin L.Lehner,Drafting Interim
Development Ordinances: Creating Time to Plan,LAND USE LAW AND ZONING DIG.,June 1996,at 3.
The range of planning and public policy objectives that may necessitate a moratorium on
development include the timing and phasing of development to the provision of adequate public facilities and
infrastructure. See Golden v. Ramapo Planning Bd., 285 N.E.2d 291, 334 N.Y.S.2d 138,30 N.Y.2d
359 (N.Y. 1972), app. dismissed, 409 U.S. 1003 (1972) (upholding timed and phased multi-year
development controls to assure that adequate public services will be provided in accordance with a long-tam
capital improvement plan); Schenck v. City of Hudson Village, 114 F.3d 590 (6th Cir. 1997);
Construction IndustryAss;n v. City of Petaluma,522 F.2d 897,909(9th Cir. 1975)(both upholding City
•
numerical allocation of development permits over multi-year phasing programs based on comprehensive and
intensive growth studies and capital improvement analysis);see also Robert H.Freilich,FROM SPRAWL TO
SMART GROWTH:SUCCESSFUL LEGAL,PLANNING,AND ENVIRONMENTAL SYSTEMS(I 999);see generally,
Timothy J. Dowling Reflections on Urban Sprawl, Smart Growth and the Fifth Amendment, 148 U.
PA. L. REV. 873 (2000).
Petitioners themselves concede the validity of "a planning or time out moratorium of the kind
sometimes used by planning agencies to provide needed breathing space."Petitioners'Brief at 4-5. By this
extraordinary admission, Petitioners concede that if this case involved a temporary moratorium, the
moratorium would have been valid. Furthermore,Petitioners assert that: "although dubbed temporary it was
19
•
actually a substantive regulation rather than a procedural planning device and it made a dramatic change in
TRPA's land use plan."See id. at 5.
This Court,however,did not accept this case on a challenge to a permanent regulation. The question
presented asks,"whether the Court of Appeals properly determined that a temporary moratorium on land
development does not constitute a taking of property...." Tahoe-Sierra,2001 WL 69237(U.S.). The case
should be dismissed on the basis that certiorari was improvidently granted,or alternatively,the order of the
Court of Appeals should be affirmed,since Petitioners concede that a temporary moratorium would be valid
and hence not a taking.
Temporary moratoria also constitute a valid response to imminent public health and safety threats.
Indeed, it was such a concern for the immediate safety of the public that prompted Los Angeles County to
enact an interim ordinance prohibiting development within a flood protection area to protect from loss of life,
a temporary moratorium that was eventually upheld on remand from this Court even though all use was
prohibited during the thirty-month period. First English,482 U.S.304(1987),on remand,210 Cal.App.
3d 1353, 258 Cal.Rptr. 893 (Cal. App. 1989), cert. denied,493 U.S. 1056(1990); see also Cappture
Realty Corp. v. Bd of Adjustment, 133 N.J. Super. 216, 336 A.2d 30 (N.J. Super. App. Div. 1975)
(upholding a temporary moratorium on construction within designated flood prone areas while flood control
studies were completed); Orleans Builders& Developers v. Byrne, 186 N.J. Super.432,453 A.2d 200
(N.J.Super.App.Div. 1982)(upheld eighteen-month moratorium to facilitate environmental protection for
the vast area of the New Jersey Pine Barrens). In the case sub judice, the TRPA's thirty-two-month
moratorium was for a duration directly tied to the task before it,specifically,to adopt environmental carrying
capacities and to develop a new regional plan, Tahoe-Sierra. 216 F.3d at 767-68.
20
In each of these circumstances,government was confronted with a planning,environmental,or public
safety threat of considerable magnitude and immediacy. In each case, the government found that a
temporary halt on development was necessary to accomplish legitimate planning purposes precedent to the
eventual regulation. David Heeter, Interim Zoning Controls:Some Thoughts on Their Uses and Abuses,
2 MGMT. &CONTROL OF GROWTH 409, 411 (S. Scott Ed. 1975).
The second principle underlying the need for temporary planning moratoria is the prevention of
nonconforming uses or development inconsistent with the purposes and policies of the planning legislation
being formulated. When developers expect that a regulating body is studying a particular planning or
environmental issue,and,in fact,may adopt regulations to address that issue,there inevitably will be a rush to
secure building permits under current regulations. Rohan at §22.01[1]. See also SCA Chemical, 636
S.W.2d at 436-37("SCA Chemical ...was engaged in a race to avoid the more stringent zoning and permit
requirements ... contained in the new ordinance"). One of the first courts to address temporary moratoria
summed up the problem as follows:
[A]ny movement by the governing body of a city to zone would,no doubt,
frequently precipitate a race of diligence between property owners,and the
adoption later of the zoning ordinance would in many instances be without
effect to protect residential communities--like locking the stable after the
horse is stolen.
Downham v. City Council of Alexandria, 58 F.2d 784, 788 (E.D. Va. 1932).4
Courts have recognized the illogical result that would accrue were regulatory bodies simultaneously
authorized to control and limit the private use of land,but prohibited from imposing temporary prohibitions on
a In fact,as the Ninth Circuit opinion points out,a race of diligence occurred prior to the adoption of the Tahoe
Regional Planning Compact of 1980. Tahoe-Sierra,216 F.3d at 777,n.15.
21
• use during the development of those controls and limitations. As stated in Chicago Title and Trust Co. v.
Village of Palatine, 22 III. App. 2d 264, 160 N.E.2d 697, 700(Ill. App. 1959):
It would be utterly illogical to hold that, after a zoning commission had
prepared a comprehensive zoning ordinance or an amendment thereto,
which was on file and open to public inspection and upon which public
hearings had been held,and while the ordinance was under consideration,
any person could by merely filing an application compel the municipality to
issue a permit which would allow him to establish a use which he either
knew or could have known would be forbidden by the proposed
ordinance, and by so doing nullify the entire work of the municipality in
endeavoring to carry out the purpose for which the zoning law was enacted.
See Walworth County v. Elkhorn, 27 Wis.2d 30, 133 N.W.2d 257(Wis. 1965);Miller,234 P.at 388
(Cal. 1925).
The third principle underlying temporary planning moratoria is the facilitation of public debate and
input into the legislative process. Unless the development industry, landowners impacted by development
activity, and public interest groups have participated in the planning process, regulations likely will fail to
protect the full range of community values and to accomplish the intended goals of the governing body. As
stated by the Supreme Court of Minnesota, one of the "persuasive reasons for permitting moratorium
•
ordinances[is]to derive the benefits of permitting a democratic discussion and participation by citizens and
developers in drafting long-range use plans." Almquist,245 N.W.2d at 826(emphasis added). See also
Collura v. Town of Arlington, 367 Mass. 881, 329 N.E.2d 733 (Mass. 1975) (noting that "with the
adoption of an interim [moratorium a developer] is made aware that a new plan is in the offing and is thus
able to participate in the debate over what that new plan should contain").
22
•
H. TEMPORARY MORATORIA CONSTITUTIC NORMAL DELAYS 111 THE
DEVELOPMENT APPROVAL PROCESS
In First English,this Court expressly recognized the validity of"normal delays"in the development
approval process. First English,482 U.S.at 321. Professor Frank Michelman of Harvard Law School,in
his review of First English,states:"the First English decision[does]not reach regulatory enactments,even
totally restrictive ones,that are expressly designed by their enactors to be temporary...." Frank Michelman,
Takings, 88 COLUM. L. REV. 1600, 1621 (1988). The subsequent history of First English confirms
Michelman's reasoning. Upon remand of First English, the California Court of Appeals found that the
thirty-month moratorium to prevent flooding was not a temporary taking,258 Cal.Rptr.893(1989),and this
Court denied certiorari,493 U.S. 1056 (1990). Numerous courts have relied on First English to hold
that temporary development moratoria do not amount to a taking of property. Sun Ridge Dev. v. City of
Cheyenne,787 P.2d 583(Wyo. 1990);Estate of Scott v. Victoria County,778 S.W.2d 585(Tex.App.
1989); Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. Ct. App. 1993).
The First English "normal delays"holding stems directly from A gins, 447 U.S.255,where it was
argued that aborted condemnation proceedings that lasted for a year effected a taking by interfering with the
owner's ability to sell or develop the land during the period. The pendency of the condemnation proceedings
inAgins had a greater restrictive effect than a temporary moratorium:it prevented the owners from selling as .
well as developing the property until the city determined the appropriate use for the property. The cnnctusion
that there was no taking in Agins directly supports the finding that there is no taking when the government
imposes a temporary moratorium on development. Agins specifically rejected the notion that the public
should be held liable for losses caused by delays"during the process of governmental decision making."Id at
23
•
263 n.9. A development moratorium in support of a comprehensive land use planning effort is precisely the
type of delay associated with the"process of governmental decision making"referred to in Agins and was the
progenitor of the phrase used in First English: "normal delays in the development approval process"are not
takings. First English, 482 U.S. at 321.
Consistent with this self-evident reading of Agins,a number of lower courts have rejected takings
challenges to development moratoria. In Zilber v. Town of Moraga,the Court rejected the claim that a
moratorium pending completion of an open space preservation study resulted in a taking, stating that the
claim was"akin to one rejected in Agins." 692 F. Supp. 1195, 1206(N.1).Cal. 1988). See also Williams,
907 P.2d at 704 (relying on Agins to reject claim that a development moratorium worked a taking, and
observing that "even if the ability to sell or develop... property is restricted during [a] moratorium, the
landowner is free to continue with sale or development once the regulation is lifted"). C.f.Kawaoka v. City
of Arroyo Grande, 17 F.3d 1227, 1237(9th Cir.),cert. denied,573 U.S.870(1994)(relying on Agins to
reject a substantive due process challenge to a development moratorium).
It is incumbent upon the governing body of any agency imposing a moratorium to limit its duration to
an amount of time that is reasonable and necessary. Rohan at §22.02[2]. As long as the delay is not
"extraordinary" in light of the severity and complexity of the problem, the duration of the otherwise valid
moratorium will constitute a"normal delay in the development approval process." First English,482 U.S.
at 321. The overwhelming weight of decisions by other federal and state courts supports the conclusion that
temporary moratoria in effect for reasonable periods of time similar to the duration of the TRPA restriction
do not result in a taking. See Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478 (D.
I.M. 1995) (thirty-month moratorium associated with effort to create national monument not a taking);
24
Smoke Rise, Inc. v. Washington Suburban Sanitary Comm'n,400 F.Supp. 1369(D.Md. 1975)(five-
year moratorium on sewer hookups does not render land"worthless or useless so as to constitute a taking");
Woodbury Place Partners, 492 N.W.2d 258 (Minn. Ct. App. 1992) (two-year moratorium on
development pending completion on interstate intersectional location study not a taking); Cappture, 336
A.2d 30(N.J.Super.App.Div. 1975)(four-year moratorium imposed on construction in flood-prone lands
not a taking);Friel v. Triangle Oil Co.,76 Md.App.96,543 A.2d 863 (Md.App. 1988)(twenty-four-
month interim ordinance not a take);Estate of Scott,778 S.W.2d 585(Tex.App. 1989)(two-year interim
ordinance not a taking);Matter of Rubin v. McAlvey, 29 App. Div. 2d 874, 288 N.Y.S.2d 519 (1968)
(two-year interim development ordinance valid);First English,258 Cal.Rptr.893(delay of thirty months
not unreasonable).5
III. NEITHER THE SUPREME COURT'S REMEDIAL DECISION IN FIRST ENGLISH,
NOR ITS DECISION IN LUCAS, INVOLVING PERMANENT CATEGORICAL
TAKINGS, UNI)ERMINES, MUCH LESS CONTRADICTS, THE CONCLUSION
THAT A TEMPORARY MORATORIUM ON LAND DEVELOPMENT DOES NOT
EFFECT A TAKING
The U.S. Supreme Court's decisions in First English,482 U.S.304(1987)and Lucas, 505 U.S.
1003(1992),did not create a new approach that would support the conclusion that a temporary moratorium
on development effects a taking.To the contrary,a careful reading of these decisions demonstrates that they
confirm the constitutionality of TRPA's moratorium.
5 See Orleans Builders,453 A.2d at 208(observing that"under decisional law in this state as well as in other
jurisdictions"moratoria"leading to formulation of a comprehensive system for the area's development which would
safeguard its environment"are not compensable),McCutchan Estates Corp. v. Evansville Vanderburgh County
Airport Auth.Dist.,580 N.1,.2d 339 and.Ct.App. 1991)(nine-month delay not extraordinary as a matter of law),Dufau
v. United States,22 Cl.Ct. 156(Fed.Cl. 1990)(sixteen-month delay not extraordinary as a matter of law).
25
A. First English
In First English,this Court granted review solely to address the issue of the appropriate remedyina
regulatory takings case.6 Accepting for the sake of argument plaintiffs allegations that the restrictions
effected a taking,482 U.S.at 313,the Court addressed the question"whether abandonment[of regulations]
by the government[after a judicial order finding a taking]requires payment of compensation for the period of
time during which [the] regulations" were in effect. Id. at 318. The Court answered this question in the
affirmative, holding that, assuming a government regulation works a taking in the first place, subsequent
rescission of the regulation does not foreclose a claim for compensation. "We merely hold that where the
govemment:s activities have already worked a taking of all use of property, no subsequent action by the
government can relieve it of the duty to provide compensation for the period during which the taking was
effective." Id. at 321.'
Temporary takings apply to the period of time between application of a permanent restriction and
subsequent invalidation,8 not the period during which a temporary measure is applied and is not a taking in
the first place. The obvious reach of First English is to compensate for permanent takings that last a
6 The fact that First English involved a temporary moratorium was irrelevant to the holding in the case. The
Petitioners:Petition for Certiorari is quite misleading in this regard. First English s only relevance to this case is the
dicta regarding>normal delays:. The decision in First English as to the remedy could easily have been made in any of
the cases where the court declined to accept jurisdiction by reason of ripeness. (San Diego Gas& Electric v. City of
San Diego,450 U.S.621, 101 S.Ct. 1287,67 L.Ed.2d 551 (1981);Agins,447 U.S.255(1980); Williamson County Reg'!
Planning Comm'n v. Hamilton Bank,473 U.S. 172,105 S.CL 3108,87 L.Ed.2d 126(1985),and MacDonald, Sommer&
Frates v. County of Yolo,477 U.S.340, 106 S.Ct 2561,91 L.Ed.2d 285(1986)). See Thomas E.Roberts,Moratorium
And Categorical Regulatory Takings: What First English and Lucas Say and Done Say,31 l avr:t.L.REP. 11037
(Sept,2001).
' See Corn v. City of Lauderdale Lakes,95 F.3d 1066, 1073 n.4(11th Cir. 1996),holding that First English is not
applicable to moratoria or other temporary actions;rather,First English is applicable only where the ordinance is
indefinite in duration and would expire only if declared unconstitutional or repealed.
26
temporary period of time,i.e.,regulations subsequently rescinded or declared invalid,but not to compensate
commonplace temporal regulations such as the TRPA:s thirty-two-month temporary moratorium,which have
not been held to be a taking in the fast place. Bozung&Alessi,Recent Developments in Environmental
Preservation and the Rights of Property Owners, "Moratoria as Regulatory Takings After First
English,"20 URB. LAW. 969, 1014-1030 (1988).
Thus,the First English ruling focuses exclusively on the appropriate remedy in a regulatory taking
case. The Court in First English did not establish that a restriction temporarily depriving a landowner of the
use of property constitutes a taking. Moreover,as the majority made clear, the Court was not addressing
"the quite different questions that would arise in the case of normal delays in obtaining building permits,
changes in zoning ordinances, variances, and the like." Id. at 321. This reading of First English is
confirmed by the California Court of Appeals'resolution of the takings issue on remand. Addressing for the
first time the actual merits of the takings claim,the Court of Appeals ruled that the County's interim ordinance
did not effect a taking. First English,258 Cal.Rptr.at 906. Emphasizing the fact that the ordinance was
temporary by design,the court concluded:
As an independent and sufficient grounds for our decision,we further hold
[that]the interim ordinance did not constitute a"temporary unconstitutional
taking even if we were to assume its restrictions were too broad if
permanently imposed on First English. This interim ordinance was by
design a temporary measureBin effect a total moratorium on any
construction on First Englislxs property while the County conducted a study
to determine what uses and what structures, if any,could be permitted on
this property consistent with considerations of safety.""We do not read the
U.S.Supreme Court's decision in First English as converting moratoriums
and other interim land use restrictions into unconstitutional 'temporary
8 The opinion presupposes that"temporary regulatory takings"means"regulatory takings which are ultimately
invalidated by the courts." First English,482 U.S.at 310.
27
takings' requiring compensation unless,perhaps, if these interim measures
are unreasonable in purpose,duration or scope."
Id
This Court denied the petition for certiorari filed by the owner in response to this decision. First
English, 493 U.S. 1056 (1990). Although the Court=s denial of certiorari is not precedential, it clearly
affected the ultimate result in First English.
Other courts have read First English similarly,and refused to hold that temporary moratoria effect a
temporary taking. Corn, 95 F.3d 1066, 1073 (First English not applicable to temporary moratoria);
Dufau, 22 Cl. Ct. 156 (1990) (following First English,and concluding that sixteen-month delay during
Clean Water Act section 404 processing is not a taking);Zilber, 692 F. Supp. at 1206. (relying on First
English to support conclusion that eighteen-month development moratorium is a"normal delay"that does not
result in a taking).
For Petitioners to read First English as establishing a new species of"temporary takings"that would
support a finding of a taking based on a"temporary"moratorium reflects a fundamental misreading of that
decision.
B. Lucas
In Lucas, this Court found a per se taking where a South Carolina coastal protection law
permanently barred a landowner from developing the property and reduced the market value of the property
to zero. Lucas,505 U.S. 1003. Nothing in the reasoning in Lucas suggests that the Court's ruling applies to
temporary restrictions on development. Indeed,the Court was quite clear in noting that its ruling was likely
to apply only in"rare"cases,a statement which contradicts the idea thatLucas could apply to the frequently
28
used moratorium tool. See Williams,907 P.2d at 706("Importantly,the Lucas court specifically noted that
categorical temporary takings were expected to be a rare event, occurring only under extraordinary
circumstances. 'Stop g•p'or interim zoning moratoria,however,play an important role in land use planning
and are commonly employed."). See also Palazzolo, 121 S. Ct. 2448 (confirming that Lucas is only
applicable in"relatively rare"circumstances).
The Lucas per se rule was held to be applicable only where property is permanently rendered
without use and thus valueless in perpetuity.9 Lucas, 505 U.S. at 1012 ("taking was unconditional and
permanent"); and 505 U.S. at 1018 ("the relatively rare situation where the government has deprived the
owner of all economically beneficial use"). See R. Meltz,D. Merriam and R.Frank, THE TAKINGS ISSUE:
CONSTITUTIONAL LIMITS ON LAND USE CONTROL AND ENVIRONMENTAL REGULATION, pp. 139-141
(Island Press 1999); D. Mandelker, LAND USE LAW 2.18 (4th ed. 1997); R. Freilich, h.'Garvin & D.
Martin, Regulatory Takings: Factoring Partial Deprivation into the Taking Equation, Ch. 8 in
TAKINGS(ABA,David Callies,ed. 1996). Justice Scalia,in Lucas, emphasized that the certiorari petition
squarely raised the question of whether regulatory prohibitions had rendered Lucas' beachfront land
permanently valueless. Lucas, 505 U.S. at 1007; and 505 U.S. at 1020 n.9. See K&K Const., Inc. v.
9 Treating use and value as synonymous for takings analysis is common sense,for if property retains value as
determined by the market,by definition it retains economically viable use through sale for market value. See Lucas,
505 U.S.at 1017("What is land but the profits thereof'?"(citation omitted)).
29
Dept. ofNat.Resources,456 Mich. 570,575 N.W.2d 531 (1998)(Lucas applies only where the property
owner is permanently deprived of all use and value looking at the property as a whole).10
The draconian prohibitions of the South Carolina Act were described as the "complete
extinguishment of his property's value"and a'permanent ban on construction insofar as Lucas'lots were
concerned,"Lucas,505 U.S.at 1009(emphasis added),and government has deprived a landowner of all
economically beneficial uses. Lucas, 505 U.S. at 1017-1018(emphasis added),and that"all"means"all."
Lucas,505 U.S.at 1016 n.7;505 U.S.at 1019 n.8. Justice Scalia refused to entertain the argument(raised
by the dissent)that"valueless"meant something less than a complete and total destruction of all use and value
or for a period of time less than permanent. Lucas,505 U.S.at 1020 n.9;505 U.S.at 1016 n.7;505 U.S.
at 1019 n.8. A similar rule applies in physical appropriation takings cases, Loretto v. Manhattan
Teleprompter CATV Corp.: "Our holding today is very narrow. We affirm the traditional rule that a
permanent physical occupation of property is a taking ....We do not, however, question the equally
substantial authority upholding a state's broad power to impose appropriate restrictions upon an owner's use
of his property." 458 U.S. 419, 44 I (1982)(emphasis in original).
"All value"as used in Lucas means that the regulation has permanently destroyed all value,both in a
physical and temporal sense. Lucas,505 U.S.at 1016 n.7, 1019 n.8. See Woodbury Place Partners,492
N.W.2d at 260-61 (two-year building moratorium not a Lucas per se take despite stipulated lack of all
economically viable use for two years). The Woodbury trial court had applied the Lucas per se test. The
Court of Appeals reversed, relying on both Lucas and Agins:
1° In Concrete Pipe, this Court, looking at the property as a whole,determined that where only a 59%deprivation •
occurred,the plaintiffs attempt to "shoehorn"the challenge into the Lucas per se claim would be rejected.Concrete
30
We interpret the phrase "all economically viable use for two years"as
significantly different from "all economically viable use"as applied in
Lucas. The two-year deprivation of economic use is qualified by its
defined duration. That the Woodbury property's economic viability was
delayed,rather than destroyed,is implicitly recognized in the language of the
stipulation.. "[Aj11 economically viable use from March 23,1988 to March
23, 1990" recognizes that economic viability exists at the moratorium's
expiration.
* * *
Delaying the sale or development of property during the governmental
decision-making process may cause fluctuations in value that, absent
extraordinary delay, are incidents of ownership rather than compensable
takings. Agins v. Tiburon, 447 U.S. 255, 263 n.9, 100 S. Ct. 2138,
2143 n.9, 65 L.Ed.2d 106(1980). (emphasis supplied).
Woodbury Place Partners, 492 N.W. 2d at 261-62.
If the regulation is temporary or if any use or any value remains, the Lucas per se rule does not
apply. See Palazzolo, 121 S. Ct.2448(rejecting a Lucas claim where small residual value has been left in
the property, remanding the case for a Penn Central review). In Penn Central,this Court identified three
factors to guide ad hoc factual inquiries: (1)the economic impact of the regulation;(2)the extent to which
the regulation interferes with investment-backed expectations; and (3) the character of the government
regulation. Penn Central, 438 U.S. at 124; Connolly v. Pension Benefit Guar. Corp.,475 U.S. 211,
225, 106 S.Ct. 1018,89 L.13d.2d 166(1986). In the present case,Petitioners do not argue,and on a facial
attack cannot argue,that the moratorium constituted aPenn Central take. Nor could they have succeeded
in doing so because the economic impact was minimal due to the temporary nature of the moratorium;
Petitioners could have had no investment-backed expectation that it could develop land in an environmentally
sensitive area free from reasonable,temporary delays;and the exercise of the TRPA police power to prevent
Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S.602,
31
•
•
environmental harm to Lake Tahoe caused by immediate development in sensitive areas is the highest form of
governmental action to protect health and safety. Keystone, 480 U.S. at 489-491;Lucas, 505 U.S. at
1023-1024; Trobough v. City of Martinsburg, 120 F.3d 262 (4th Cir. 1997).
So far as amici arc aware,no court yet to address the issue has ruled that a temporary moratorium
can result in a Lucas-type taking. Indeed,all the decisions are to the contrary. See Kelly v. Tahoe Reg?
Planning Agency, 855 P.2d 1027, 1033-34(Nev. 1993),cert. denied,510 U.S. 1041 (1994)(rejecting
takings challenge to temporary restrictions which, unlike the restrictions in Lucas,"temporarily limit,rather
than forever preclude development in environmentally sensitive areas"); Williams, 907 P.2d at 706
(moratorium on new development in gambling district did not effect a taking under Lucas);Santa Fe Village
• Venture, 914 F. Supp. at 483 (citing Lucas and First English, and rejecting claim that thirty-month
moratorium resulted in taking). Just four months ago, the Florida Supreme Court in Keshbro v. City of
Miami, 2001 WL 776555, (Fla.2001)held that temporary moratorium in the land use and planning arena
does,not constitute a Lucas take, citing the Ninth Circuit Court of Appeals opinion."
643-644(1993).
rl Keshbro did find that a nuisance abatement board order closing a multi-rental facility for illegal drug operation
constituted a Lucas taking for the one-year period of the closure,citing State ex rel.Pizza v. Rezcallah,702 N.E.2d 81,
89(Ohio 1998)(finding such closure orders to be in the same footing as"seizures"of property). Keshbro
distinguished such closures from temporary moratoria in the"land use and planning arena,where an entirely different
set of considerations are implicated from those in the context of nuisance abatement where a landowner is being
deprived of a property's dedicated use". Keshbro,Inc. v. City of Miami,2001 WL 776555,6(Fla.2001). These two
cases and one Washington intermediate court of appeals case differ from temporary moratoria because they find a
taking from the interference with the property owner's ability to lease his existing property,to gain physical access to
the land and buildings. Nevertheless these cases are also wrongly decided because they fail to properly analyze
Lucas'holding. See Zeman v. City of Minneapolis,552 N.W.2d 548(Minn.bane 1996)where the court held that a
temporary revocation of an apartment license to abate nuisances was not subject to the Lucas per se rule because the
apartment license was taken,if at all,only temporarily. 552 N.W.2d at 553 n.4. The court held that temporary nuisance
closures should be analyzed using Penn Central and concluded that since the ordinance furthered a legitimate state
interest in deterring criminal activity,it prevented a public harm and no taking resulted. 552 N.W.2d at 553-555.
32
IV. TAKLNGS ANALYSIS REQUIRES CONSIDERATION OF THE PROPERTY IN ITS
ENTIRETY,INCLUDING TIME AS WELL AS SPATIAL AND USE ELEMENTS,AND
TRPA'S ACTIONS DID NOT CONSTITUTE EITHER A FACIAL LUCAS PER SE
TAKE OR A FACIAL PENN CENTRAL TAKE
In Penn Central the Supreme Court explained that:
'Taking'jurisprudence does not divide a single parcel into discrete segments
and then attempt to determine whether rights in a particular segment have
been entirely abrogated. In deciding whether a particular governmental
action has effected a taking, this Court focuses both die character of the
action and on the nature and extent of the interference with rights in the
parcel as a whole.
Penn Central,438 U.S.at 130-31.'a Consistent with Penn Central,the Supreme Court declined to find a
categorical take in Andrus,444 U.S.51 (1979). The Court reasoned that"where an owner possesses a full
`bundle'ofproperty rights,the destruction of one'strand'of the bundle is not a taking,because the aggregate
must be viewed in its end ety." Id.at 65-66.t3 When a moratorium temporarily restricts use of property,the
rights in only one particular temporal segment have been restricted, not all rights. When the effect of a
moratorium is viewed in the context of an owner's entire property, it is apparent there has been no Lucas-
type taking.
Petitioners assert that viewing the parcel as a whole was rejected by this Court in First English.
They cite to the vigorous dissent of Judge Kozinski on the denial of the motion to rehear the case en bane,
where he accuses the majority of having adopted the statement made by Justice Stevens in dissent:
12 The Penn Central formalization for takings analysis has recently been strongly reaffirmed by this Court in
Palazzolo,just this past term, 121 S.Ct.2448(U.S.June 28,2001).
13 It is remarkable that at the beginning of the Twenty-First Century the fundamental scientific principle of our time,
Einstein's recognition that space and time arc the third and fourth dimensions of physical matter,would not be
regarded as a reality by the courts.
33
•
"Regulations are three dimensional;they have depth,width and length. . . . Finally,and for purposes of this
case, essentially, regulations set forth the duration of the restrictions." First English, 482 U.S. at 331
(Stevens, J., dissenting). Petitioners assert that the majority in First English rejected Justice Stevens'
reasoning: "In First English, this Court directly faced the question of whether the length of time made any
constitutional difference. The dissent thought it did(482 U.S.at 318). The majority,however,decided it did
not(482 U.S. at 321)." Petitioner's Brief at 21.
In fact,the First English majority did not reject Justice Stevens' dissent on this point at all—it did
not rule on this point or on the"parcel as a whole"theory. It rejected merely the dissent's proposition that
the remedy for takings was invalidation, not compensation. On the issue of temporary takings,the Court
could not have been more explicit Relying heavily on United States v. Dow,357 U.S. 17,78 S.Ct. 1039,
2 L. Ed. 2d 1109 (1958)(abandonment of condemnation proceedings already constituting a taking) and
three cases involving direct condemnation of leasehold interests for shorter periods of time,the Court held:
"Where this burden results from governmental action that amounted to a taking, the Just Compensation
Clause requires that the government pay the landowner for the value of the use of the land during this period,
C.f. United States v. Causby,328 U.S.at 261." First English,482 U.S.at 319. It was not time that was
critical to First English but whether the governmental action had already amounted to a taking. The property
at issue in the case sub judice retained value and there were a range of uses available,as well as all future
•
34
uses available after the thirty-two-month moratorium period. If a regulation is temporary,all reasonable use
has not been denied because all future uses remain.14
Finally, there are practical planning and administrative reasons for considering the entire property
when determining whether regulatory impact amounts to a taking. Reasonable regulation in pursuit of the
public interest will necessarily burden certain pieces of the owner's physical property. However,for courts •
to base their taking analysis on just the affected pieces would result in the irrational circumstance of
government having to compensate the property owner for the incremental impact of the regulation,regardless
of the overall remaining usefulness of the entire parcel. See Keystone,480 U.S. 470. The unworkable
application of this reasoning became apparent in Washington,when the state supreme court first held that a
greenbelt set-aside that limited the use of only a portion of certain properties amounted to an unconstitutional
taking. Allingham v. City of Seattle, 109 Wash.2d 947,948,749 P.2d 160(Wash. 1988),amended by,
757.P.2d 533 (Wash. 1988). Just two years later,recognizing the catastrophic nature of its prior holding,
the court reversed itself;recognizing that:
IN]either state nor federal law has divided property into smaller segments
of an undivided parcel of regulated property to inquire whether pieces of it
has been taken .... Rather, we have consistently viewed a parcel of
regulated property in its entirety. Federal case law has also specifically
refused to focus its inquiry upon a given portion of a regulated property. .
. .To the extent Allingham is inconsistent with the foregoing analysis,it is
hereby overruled.
14 Property interests under the common law explicitly deal with the length of time that an interest lasts. One of the
geniuses of the common law system distinguishing it from its European civil law counterparts was the early
recognition that estates in land have present and future interests. See Lewis Sines,Future Interests,Introduction 2-3
(1951)"In Anglo-American law there are two devices by which the owner of property projects his will into the future.
They are the trust and the future interest."The latter,for the most part,are alienable,assignable and inheritable,and
support standing for actions in executory interests and reversions following life estates and terms ofyears. Ashbel G.
Gulliver,LAW OF FUTURE INTERESTS,at 73(1959).
35
Presbytery of 5 auks v. King Count}. 1 l4 Wash.2d 320, 334-35, 787 P,2d 907 (1990)(emphasis in
original)(citations omitted),
Similarly, the temporal element of property ownership must also be viewed in the entirety. See
A rns, 447 U.S. at 258;Andrus,444 U.S.at 65-66. Unless the entire term of ownership is recognized as
the appropriate temporal denominator over which to measure the relative impact of the challenged regulation,
results as irrational as those recently recognized by the Washington Supreme Court will characterize takings
jurisprudence,and accordingly will diminish the traditional rights of state and local governments to regulate
land in a reasonable manner. Euclid, 272 U.S. 365 (1926),
CONCLUSION •
The grant of certiorari should be dismissed as improvidently granted,or in the alternative,the Ninth
• Circuit opinion holding that no categorical taking occurred under the Fifth Amendment should be affirmed.
.Respectfully submitted,
Robert H. FreiliC.h*
F. Tyson Smith
Jason M. Divelbiss •
Freilieh, Leitner Carlisle
4435 Main Street
Kansas City, MO 6411
(816) 561-4414
* Counsel of Record for Amici Curiae
. November 12, 2001
36