Submitted by John Colvin.
No, the title is not a grammatical error; and yes, it is a play on words. With the comma in place, taking is a noun. However, removing the comma, taking becomes a verb. Therefore, this little play on words is quite effective as a taking could be in DuPont’s future and a taking could result in some very ugly events that may end up removing what could be DuPont’s future.
One thing I’ve learned during my two years on the DuPont Planning Commission is the complexity of the city’s development publications. The most important publication concerning the planning and development of DuPont is its Comprehensive, or Master Plan. Of the many things the Comprehensive Plan covers, land use zones is the most important for future development. The DuPont Municipal Code (DMC) is another publication important to city development. Together, these publications determine land use and what developers can, and cannot, do regarding development. Although the Planning Commission works the document, it’s the City Council that approves those changes. Therefore, both Planning Commissioners and City Council Members must have a working knowledge of land use dos and don’ts.
It is imperative that these city planners pay close attention to land use changes because land use and zoning are areas of responsibility that get cities into a lot of trouble. If the city planners are not aware of all the legal, ethical, and constitutional issues surrounding land use and zoning, they will be when the litigation starts. Especially when a taking occurs which, is one of the more common reasons for land use/zoning litigation against a city.
Taking is a legal term used when a government entity enacts “Eminent domain” on a piece of property. Eminent domain is authority given to the government to legally seize private property for public use. A good example of eminent domain is an easement on private property so other property owners can gain access to their otherwise landlocked property or for utility companies to gain access to public utility equipment. However, in many cases, local governments create an illegal taking when they modify land use zones or zoning definitions.
Takings are not relegated to only physical seizure. A taking can occur when a zoning, municipal, or other regulatory code is changed and places further restrictions of use on private property. A perceived taking could result in a long and expensive court battle. According to the American Planning Association, “One “takings” case was in court for nine years before the U.S. Supreme Court more or less resolved it” (para 3).
Why the concern of a taking in DuPont? Certain city council candidates have stated recently that they will advocate for the change of DuPont Municipal Code definitions to exclude warehouses in Old Fort Lake and the area surrounding the golf course. The irony of those candidates argument for changing land use zone definitions is that the areas of their concern are currently zoned to disallow warehouses and distribution centers. Those areas are zoned “Mixed Use Village, Open Space, and Community Park.
DuPont Municipal Code 25.41.010 states, “The Mixed Use Village (MUV) is intended to provide a location for a spectrum of future services, recreation, employment, and living options arranged in a mixed use village. This district is intended to provide area for those uses that desire to conduct business in an atmosphere of prestige location in which environmental amenities are protected through a high level of development standards” (para 1). The chapter also explains each Mixed Use Village Zone (MUV 1 – 9), which mentions light industrial activity. It’s the Light Industrial Activity that the candidates are concerned about as they believe Light Industrial Activity includes warehouse and distribution centers.
However, paragraph 25.41.15 of the Mixed Use Zone Chapter states:
The definitions in this section only apply to Chapter 25.41 of the DMC.
(1) “Light manufacturing” means an indoor facility used for the assembly, fabrication, and conversion of semi-processed material into finished products, where the intensity, scale, and characteristics of the operation are unlikely to negatively impact surrounding land uses. Light manufacturing also includes intermediate services such as machining, welding, grinding, and machine/industrial repair. Examples of light manufacturing uses include, but are not limited to, clothing and fabric manufacturing; food and beverage products, including ice production; electronic, optical, and instrumentation assembly; jewelry production; and manufacturing musical instruments. Outdoor storage or processing of equipment or materials is prohibited. (Ord. 18-1034 § 2 (Exhs. 6, 7))…
(2) The following uses and development types are specifically prohibited in all MUV subdistricts:
(a) Drive-through facilities.
(b) Gas stations/car washes.
(c) Fish processing and other animal rendering operations.
(d) Vehicle sales.
(e) Service businesses such as wrecking yards, bulk fuel distributors, automotive repair, heavy equipment repair, mini-storage and like uses are prohibited.
(f) Adult entertainment.
(g) Warehouse/distribution. (Ord. 18-1034 § 2 (Exhs. 6, 7))
This definition explicitly excludes warehouses and distribution centers from the areas the city council candidates expresss their concerns. Therefore, changing the definition of “Light Industrial Activity” throughout the entirety of the DuPont Municipal Code will not affect these areas – they’ll affect other areas.
Furthermore, if DuPont’s zoning or municipal codes are changed to restrict uses on private property purchased with a reasonable investment backed expectation, the act could be considered a taking (Legal Information Institute, para 10). The property owner would be well within his or her rights to sue the City of DuPont, leaving the decision to the courts. If either party is dissatisfied with the ruling, that party has the right to appeal to a higher court. This litigation could go on for a very long time, and it may not end favorably for the City of DuPont. Thus, the very thing that certain parties in DuPont were trying to avoid may in fact become its future.
Additionally, if the property owner sued the city for a taking and won, denying a conditional use permit after the fact would be much harder. The property owner could bring litigation against the city for an act of reprisal or retaliation – again, it is likely that the very thing being prevented becomes the actual future of DuPont.
There is no real, or perceived, threat to distribution centers in the Old Fort Lake and golf course area. Plus, there are smarter ways to go about staving off distribution centers throughout the city of DuPont without involving long and expensive litigation. For instance, the current code for mixed use limits the size of a distribution center to 200,000 sf – too small of a space for an effective distribution center. Therefore, the developer would need to submit a conditional use permit – something that could be easily denied for several LEGAL reasons. Furthermore, there are only four areas in DuPont zoned as mixed use or commercial (the only zones allowing warehouses and distribution centers), none of which are in undeveloped areas of DuPont. In short, all commercial and mixed use zones are for the most part, built out and most likely will accommodate a warehouse or distribution center.
On what grounds could a conditional use permit be denied? A few reasons could include an increase of truck traffic in school zones creating safety concerns, increased truck traffic having an adverse effect on streets not made to handle the weight of the loads, distribution centers are not consistent with the future development plans of the city, and a myriad more. The point is that it would be easier to deny a conditional use permit if the city didn’t have a litigation history with the developer.
We must use foresight when planning our city, impulsive decisions cannot be how the city defends itself against the onslaught of warehouses. We must use the legal system to our advantage, not theirs. We can’t change what has happened in the past. However, we can better plan our city’s future. But that means we must use strategy to prevent warehouses from being DuPont’s future, not knee-jerk reactions. Otherwise, the taking most likely will end up taking DuPont’s future.
American Planning Association (2021). APA Policy Guide on Takings. APA Policy Guide on Takings (planning.org)
DuPont Municipal Code (June 2021). Mixed Use Village 25.41.010. https://www.codepublishing.com/WA/DuPont/#!/DuPont25/DuPont2541.html#25.41
DuPont Municipal Code (June 2021). Mixed Use Village Definitions 25.41.15. https://www.codepublishing.com/WA/DuPont/#!/DuPont25/DuPont2541.html#25.41.015
Legal Information Institute (2021). Takings. Takings | Wex | US Law | LII / Legal Information Institute (cornell.edu)