Taking Issue with Takings: Has the Washington State Supreme Court Gone Too Far?

The Washington State Supreme Court has expressed concern for local governments' potential financial liability under the taking clauses of the federal and state constitutions. Accordingly, the court adopted a comprehensive framework to analyze regulatory challenges and mitigate the chilling effect of potential financial liability. The court, however, went too far in its zeal to promote innovative land-use measures. Its broadly inclusive insulation doctrine allows little room for any regulatory takings.

Because the insulation doctrine fails to meet a federal minimum of constitutionality, the doctrine must be relaxed to comport with precedent. To prevent the return of the chilling effect, the court must make substantive and procedural changes to state taking law to provide for an identification of the interests protected by the taking clause and an expedited review process for taking claims.