Appeals panel hears challenge to Edmonds tree-replacement requirement as a taking

An appellate panel heard arguments in Nathan Rimmer v. City of Edmonds over whether the city's tree-replacement requirement amounts to an unconstitutional taking when imposed as a condition on a building permit.

Jeff Terreday, counsel for the City of Edmonds, told the court the city's code regulates property use rather than acquiring property and therefore does not constitute a per se exaction. "But none of those constitute an exaction because there's there's no property being acquired," Terreday said, and he read provisions of the municipal code governing pruning, tree-retention plans and replacement obligations. He also cited Fox v. City of Pacific Grove and recent line of cases to argue the rule should not be treated as a per se taking like the conveyances at issue in Nolan and Dolan.

Brian Hodges, counsel for respondent Nathan Rimmer, replied that the case is a straightforward as-applied challenge under Nolan and Dolan and that the trial court's relief (including an oral writ of mandamus directing the city to issue the permit) had practical consequences: the permit was issued, the property was sold and subsequently developed. Hodges urged the panel that the city failed to carry the heightened burden of showing nexus and proportionality. "If a city official simply walked up to a family home, knocked on the door, and demanded that they plant 2 new trees in their yard ... that would be a taking just as much as a telephone pole would, a cell tower would, an an off ramp would," Hodges said.

The judges pressed both sides on procedural posture. They asked what relief an appellate court could provide now that the permit had been issued and the property changed hands. Terreday said reversal could eliminate liability and damages under the federal Section 1983 claim that remains pending; Hodges said mandamus and the trial court's rulings limited the relief the city could obtain on appeal because the permit had been executed and title had passed.

The panel also discussed whether the plaintiffs had pursued alternate remedies such as accepting a permit condition under protest, then pursuing judicial review, and how land-use review statutes (LUPA/LUFA as discussed in oral argument) and the Uniform Declaratory Judgment Act interact with writ petitions. Terreday argued the applicant had other procedural options and that some jurisdictional questions identified in the amicus brief might affect what relief is appropriate.

Counsel debated proportionality: Hodges said the city lacked evidence tying the replacement requirement to specific impacts and criticized the city's measurement method; Terreday said parts of the code and some replacement ratios in the ordinance would be closer to constitutionally permissible results. Hodges acknowledged a 1:1 replacement ratio would be "a lot closer." Hodges closed by asking the panel to affirm the trial court's order.

The hearing concluded without a decision from the bench; the panel closed its calendar for the day.