KARL J. THUN and VIRGINIA S. THUN, husband and wife; DANIEL POVOLKA, SALLY BAYLEY, THERESA BOOTH, and NANCY LEGAS, heirs of Thomas J. Povolka; LOUISE LESLIE and TERESA M. AFORTH, trustees of the William and Louise Leslie Revocable Trust; and VIRGINIA LESLIE and KAREN LESLIE, trustees of the Virginia Leslie Revocable Trust, Appellants,
CITY OF BONNEY LAKE, a municipal corporation, Respondent.
J. and Virginia S. Thun, Thomas J. Povolka, William and
Louise Leslie Revocable Trust, and Virginia Leslie Revocable
Trust (collectively Thun) filed a lawsuit against the City of
Bonney Lake (City), alleging that the City's adoption of
an ordinance rezoning the majority of Thun's property
constituted an unconstitutional regulatory taking. The trial
court granted the City's motion for summary judgment
dismissal of the case.
appeals, arguing that there is a genuine issue of material
fact regarding the purpose of the City's ordinance and
that the trial court misinterpreted the law in holding that
the ordinance did not confer a public benefit. We affirm
summary judgment dismissal of Thun's regulatory takings
owns approximately 36 acres of property near the city limits
of Bonney Lake. A majority of Thun's property is located
on a steep hillside that slopes into the Puyallup River
Valley. The slopes vary from 20 percent to 40 percent or
greater and pose a high landslide risk. Thun's property
was originally zoned C-2 (commercial), which permitted a
maximum of 20 residential units per acre.
2004, the Central Puget Sound Growth Management Hearings
Board ordered the City to revise its zoning designations to
comply with Washington's Growth Management Act (GMA). The
GMA requires each city to adopt development regulations that
provide open space areas between urban growth areas and that
protect critical areas, including areas susceptible to
erosion or sliding. RCW 36.70A. 160; former RCW 36.70A.060(2)
(1998); see former RCW 36.70A.030(5), (9) (1997).
The City identified a number of areas with zoning
designations that it deemed inconsistent with the GMA,
including Thun's property.
March 2005, Thun entered into a purchase and sale agreement
with a developer to construct a 575-unit condominium complex
on his property. On September 13, the developer submitted an
application to the City for a site development permit for the
condominium complex. That same day, the City adopted
Ordinance 1160 (Ordinance), which rezoned all but roughly 5.5
acres of Thun's property from C-2 to RC-5
(residential/conservation). Thun's proposed development
was not allowed under the rezone because RC-5 zoning
authorizes only one residential unit per five acres. The City
subsequently denied the developer's site development
permit application. Thun estimates that the City's rezone
reduced the value of his property from $6.00 per square foot,
or $2.50 in certain areas, to $0.35 per square foot.
adopting the Ordinance, the City noted that its purposes were
to (1) manage areas that are steep and prone to geologic
instability, (2) protect tree cover on areas that cannot be
densely developed due to steepness, (3) "protect the
magnificent entry to [the City], " and (4) comply with
the GMA, which requires the City to identify open space
corridors between urban growth areas. Clerk's Papers (CP)
at 248. The City's mayor at the time of the adoption of
the Ordinance stated in a declaration that he disagreed with
adoption of the Ordinance in part because he believed that
the City's primary purpose in adopting the Ordinance was
to protect the magnificent entry to the City, and not to
address the danger of landslides.
Thun's First Appeal
2008, Thun filed a lawsuit against the City, arguing that the
Ordinance's rezone constituted an unconstitutional
regulatory taking. The trial court granted summary judgment
dismissal of Thun's regulatory takings claim. Thun v.
City o/BonneyLake, 164 Wn.App. 755, 758, 265 P.3d 207
(2011). We affirmed the trial court's dismissal of
Thun's claim, reasoning that it was not ripe for review.
164 Wn.App. at 768.
determined that because neither Thun nor the City was certain
of how much of Thun's property was zoned C-2 or RC-5, and
because we were not presented with evidence regarding
permissible uses of the C-2 property or the feasibility of
permissible uses, Thun's claim was not ripe. 164 Wn.App.
at 766-67. As a result, we could not "reach just and
accurate results if neither the size of the parcels nor the
permitted uses thereon [was] reasonably known before
trial." 164 Wn.App. at 767.
2013, Thun attended a preapplication meeting with the City.
At the meeting, Thun submitted a "conceptual plan"
for a 96-unit condominium complex with retail and office
space on the C-2 portion of his property, as well as a plan
for one residential unit for each five acres on the RC-5
portion of his property. CP at 4. Thun and the City also
verified the size of the C-2 portion of his property and
determined that the C-2 zoning permitted a 131-unit
condominium complex with retail and office space. The
preapplication meeting was "not considered a final
determination of the subject project." CP at 93. Thun
did not submit a site development plan or a permit
application to the City after the preapplication meeting.
2016, Thun again filed suit against the City, seeking damages
for the City's alleged unconstitutional regulatory taking
of his property under article I, section 16 of the Washington
Constitution. The City filed a motion for summary judgment
dismissal of Thun's claim, arguing that Thun's
regulatory takings claim remained unripe for review and,
alternatively, that Thun failed to meet the threshold
requirement of a regulatory takings claim.
trial court granted the City's motion for summary
judgment dismissal of Thun's claim. The court determined
that Thun's regulatory takings claim was ripe for review
because the preapplication meeting provided a reasonable idea
of the permissible uses of Thun's C-2 property and
because the court could waive prudential
ripeness. But the trial court then ruled that Thun
had failed to show that the rezone constituted a regulatory
taking and dismissed Thun's lawsuit. In its order, the
trial court stated it was granting the City's motion
because "the rezone seeks to prevent a harm by
safeguarding the ...