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Court orders stream buffer sale

Published on December 10, 2010 3:01AM

Last changed on January 7, 2011 8:38AM

City ordered to buy land where family sought to build home


Capital Press

Ten years ago, beef ranchers Kipp and Marilyn Dunlap asked the City of Nooksack for permission to build a home on a quarter-acre parcel.

The city required that their home be triangular, built on stilts and have no more than 480 square feet. They would not be allowed to have a yard, garden, fence or driveway.

Nooksack Slough runs through the middle of the residential lot, which they've owned for 20 years. The city declared the land adjacent to the stream environmentally sensitive, imposing mandatory buffers on both sides.

Now an appeals court has ordered the city to buy the land from the Dunlaps because they cannot do anything with it.

The Dunlaps sued for inverse condemnation, claiming the city had denied them economic use of the property.

A trial court ruled in the Dunlaps' favor, and the city appealed, arguing that environmental regulations trumped the Dunlaps' desire to build a home.

During the appeal, the Pacific Legal Foundation filed a friend of the court brief arguing that the city's actions constituted a "total taking" under the 1992 decision on Lucas v. South Carolina Coastal Council.

"The Constitution protects a property owner from having all economically beneficial uses wiped out by government regulation, regardless of its purpose," said Brian Hodges, managing attorney for the foundation's Pacific Northwest Office. "If the city wanted to turn the Dunlaps' property into a buffer for public use, it had to pay for it."

In October, Washington's Court of Appeals agreed with the trial court, concluding that the city's stream buffers resulted in a total taking.

"It's very important that our government know that there are limits to what it can do to private property," Hodges said.

The property now belongs to the city, Kipp Dunlap said. "They were ordered by the jury to pay us $16,750 for the land, $20,000 for attorney fees and $11,000 interest."

The Dunlaps also sought access to another piece of land they own, 30 acres where they operate a cow-calf operation and planned to build another home. Though the appeals court upheld a trial judge's decision denying them access to the property, they plan to appeal.

"We had planned to build a custom log home on the larger property and were in the process of building it," Dunlap said. "The logs had been delivered, then the city vacated our access. The city had charged us $250 a day to use the road (before), then it left us with no road."

The decision left the Dunlaps with an unimproved right-of-way as the only access to their property.

"It would cost us $500,000 (to build a road) to meet city standards. We can't get equipment in. We can't make hay. We can only graze our cattle," he said. "You can't farm without a road."

The building materials have been sitting on the property for 10 years and are now ruined, he said.


Pacific Legal Foundation: www.pacificlegal.org


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