Karl J. Thun, Et Ux v. City Of Bonney Lake

Filed Washington State Court of Appeals Division Two May 1, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II KARL J. THUN and VIRGINIA S. THUN, No. 49690-9-II 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, v. CITY OF BONNEY LAKE, a municipal PUBLISHED OPINION corporation, Respondent. WORSWICK, J. — Karl 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. Thun 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 claim. No. 49690-9-II FACTS I. BACKGROUND Thun 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. In 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. In 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 2 No. 49690-9-II 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. In adopting the Ordinance, the City noted that its ...

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