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Greek v. Pierce County

United States District Court, Ninth Circuit

September 16, 2013

MEL and ALICE GREEK, husband and wife Plaintiff,
v.
PIERCE COUNTY, KARIE HAMILTON, CHRISTIAN FYNBOE, JOSEPH KOLP, and NATHALY KOLP, and their respective marital communities, and REAL PROPERTY DESCRIBED AS THAT PORTION OF CERTAIN

ORDER GRANTING MOTION TO DISMISS (Dkt. #11)

RONALD B. LEIGHTON, District Judge.

THIS MATTER is before the Court on Defendant Pierce County's Motion to Dismiss pursuant to Fed. R. Civ. P 12(b)(6). (Dkt. # 11). Plaintiffs Mel and Alice Greek seek to recover damages from the County for violations of the takings clauses of the United States and Washington state Constitutions.

At the heart of this case is an argument between the Greeks and the Hamiltons (their neighbors) as to whether a walkway dedicated in 1924 as part of a residential plat was intended to be private or public. The Hamiltons' (distant) predecessors-in-interest apparently believed that the walk was public and asked Pierce County to vacate (i.e., relinquish) its interest in the walk. The County did so by passing a vacation ordinance in 1948. According to the Greeks' Amended Complaint, in 2005, 57 years after the ordinance's passage, the Hamiltons constructed a fence on the walk, thereby obstructing the Greeks' use of a portion of it. The County's passage of the 1948 vacation ordinance is the sole factual basis for the Greeks' federal and state law takings claims against the County.

The Greeks allege that the County never owned an easement in the right-of-way because the walk was dedicated to the common ownership of all the private property owners within the plat. Regardless of whether this allegation is correct, the mere fact that, at the request of property owners, the County disclaimed any interest it held in the walk through the passing of the vacation ordinance does not give rise to a takings violation under state or federal law.

To plead a claim under the Fifth Amendment's Takings Clause, the Greeks must allege a government action that, as a matter of law, amounts to a physical occupation or regulation of their property. See Lingle v. Chevron, 544 U.S. 528, 538 (2005). The Greeks have done neither. The Greeks have not alleged regulatory action, and they point to nothing in the vacation ordinance that required that they permit physical occupation of the walk by the Hamiltons or any other property owner.

Nor have the Greeks pleaded a viable claim under the Washington Constitution's Takings Clause. To plead a state takings claim, the Greeks must allege government action that, as a matter of law, either (1) resulted in the acquisition of an interest in their property, (2) regulated the use of their property, or (3) was a public project which caused damage to their property. Ftizpatrick v. Okanogan County, 143 Wn.App. 288, 302-303, 177 P.3d 716, 723 (2008). The Greeks have not alleged any facts to show that any of these situations exists here. The Greeks do not allege that the County built the fence, or that the County proximately caused its construction. Moreover, the County's vacation ordinance could not have resulted in the acquisition of private property, because a vacation resolution instead removes a government-owned easement over private property. In other words, the vacation resolution did not create a government-owned property interest, it extinguished one.

The Greeks have not alleged a valid claim for a violation of the takings clause under either federal or state law. Therefore, the County's Motion to Dismiss is GRANTED.[1]

IT IS SO ORDERED.


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