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Prison Firing Range Noise Nuisance Does Not Amount to Regulatory “Taking”

The Washington Court of Appeals upheld a lower court's conclusion that noise from a prison firing range did not interfere with neighboring property use.

In 1886, the Washington State Penitentiary opened in Walla Walla, Washington. A firing range has operated, almost daily, on prison grounds since 1886.

Between 1962 and 1984, Gene and Barbara Tom purchased four parcels of property next to the penitentiary. They used that property for agricultural purposes for decades. In 2004, however, the property was rezoned to allow residential development.

When the State refused a request to close the prison's firing range, the Toms brought suit. They alleged that the noise destroyed their right to use their property for residential development. The trial court granted the State's motion for summary judgment and dismissed the suit.

The Court of Appeals affirmed, holding that "any taking because of noise occurred before the Toms purchased the affected property." The court found that "the noise apparently became a problem after the property was rezoned. But the potential use of the Toms' property was the only thing that changed. The noise did not. The noise from the penitentiary's firing range might be a preexisting nuisance, but it is not a taking." See: Tom v. Washington, 164 Wash.App. 609, 267 P.3d 361 (Wa CA 2011)

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Related legal case

Tom v. Washington