Orion Corporation v. State

Dore, J.

(dissenting) — While I have reservations concerning the majority's analysis of substantive due process violations and regulatory takings, I believe the court need not reach these issues. The majority holds that Orion's takings claim is ripe for review. Majority, at 633. I disagree. Neither Skagit County nor the State has ever issued a final decision regarding the application of the Shoreline Management Act of 1971 (SMA), the Skagit County Shoreline Management Program (SCSMMP) or the Padilla Bay Estuarine Sanctuary (Sanctuary) to Orion's property. Absent a final decision by the County or State as to how these regulations apply to Orion's property, a proper determination of whether a taking has occurred cannot be made.

The United States Supreme Court has consistently held that a regulatory takings claim is not ripe until the governmental entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue. MacDonald, Sommer & Frates v. Yolo Cy., 477 U.S. 340, 348-50 , 91 L. Ed. 2d 285, 294-95 , 106 S. Ct. 2561 (1986); Williamson Cy. Regional Planning Comm'n v. Hamilton Bank, 473 U.S. *674 172, 186 , 87 L. Ed. 2d 126 , 105 S. Ct. 3108 (1985). Generally, to state a regulatory takings claim a property owner must first establish that the regulation has in substance "taken" property — that is, that the regulation "goes too far". Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 , 67 L. Ed. 322 , 43 S. Ct. 158 (1922); Hamilton Bank , at 186. Determining whether a regulation has gone "too far" depends, in significant part, upon an analysis of the economic impact of the challenged regulation and the extent to which it interferes with reasonable investment-backed profit expectations. Hamilton Bank , at 190-91. It is impossible to accurately evaluate these factors " until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question." Hamilton Bank , at 191.

Here, Orion has never once filed for a substantial development permit or a variance. Neither the County nor the State has ever been given an opportunity to determine how the SMA, SCSMMP or the Sanctuary applies to Orion's property. Thus, we have no way of knowing whether the harm inflicted by these regulations is severe enough to lead to the conclusion that they "go too far". Until we know the parameters of what Orion can and cannot do with its property, a regulatory takings claim is premature.

The majority opinion concludes that Orion's claim is postured for review because an application for an aquaculture conditional use permit would be futile. The majority assumes that our earlier decision in Orion Corp. v. State, 103 Wn.2d 441, 459 , 693 P.2d 1369 (1985) which held that the existence of the Sanctuary would require denial of such a permit is still correct. I disagree. The trial court was presented with evidence of changed circumstances that warrant a reappraisal of the possible uses of Orion's property. In particular, an affidavit from the section head of the Shoreiand Management Section, Washington State Department of Ecology, concluded that aquaculture would be permitted in Padilla Bay. The changed circumstances indicate that aquaculture may not only be consistent with the gen *675 eral purpose of the SMA; but also, aquaculture may be compatible with the existence of the Sanctuary.

Furthermore, while our original decision in Orion seemed to indicate that Orion could not receive a variance, the changed circumstances may also allow Orion to receive such a variance. If this were possible, then Orion could obtain a profitable use of its property. 30

Conclusion

I believe Orion's regulatory taking claim is premature. Without a final administrative decision on the effect of the regulations at issue here on Orion's property, it is impossible to tell whether the property has retained any reasonable beneficial use or whether investment-backed expectations have been destroyed. Accordingly, I would reverse the trial court's decision granting Orion's motion for summary judgment on its regulatory takings claim.

I further note that while the specter of financial liability may prevent a county from enacting certain beneficial land use regulations, a variance procedure may ameliorate this risk. The Skagit County ordinances allowed for a variance whenever to do otherwise could result in a "taking" on the property owner concerned. SCSMMP § 10.03(e). Had the State argued this again in this case, the result may have differed. In any event, I still believe a remand on this issue would be equitable.