In an unprecedented decision, the Washington State Court of Appeals, Division II, recently ruled that a landowner can build on her property, despite the existence of a wetland.

“This decision is monumental in restoring rights to property owners who otherwise would lose the value of their property because of what is essentially an illegal ‘take’ by government,” said Building Industry Association of Washington (BIAW) attorney Kris Tefft. “The U.S. Constitution prohibits the ‘taking’ of private property for public use and this court ruling upholds that principal,” said Tefft.

The case began when Marlene Jones applied for a wetlands development permit from the City of Tacoma so she could build a modest home on her lot, which has a small wetland on it. The wetland, with the accompanying 50-foot buffer, would have typically precluded development on Jones’ property.

However, under Tacoma’s code, a landowner can apply for an “extraordinary hardship” exception to the wetland regulations if it can be demonstrated that buffer requirements would deny all reasonable use of the property. Since the buffers did in fact preclude development and thus deny all reasonable use of the property, Jones applied for such an exception as well as proposed mitigating the impact of the construction of her home to the wetland by planting native vegetation.

The city denied Jones’ permit. Represented by BIAW, Jones appealed the decision. BIAW argued denial of the permit violated Tacoma’s code and constituted an unconstitutional “taking” of private property. The Court of Appeals subsequently overturned the city’s decision.

Jones is now therefore eligible for the hardship exception, and she will be permitted to build a single-family residence on her lot.