Guimont v. Clarke

may provide evidence supporting Contract and Land Sale However, this other entities. to proceed against the basis this court. before currently the dispute not re- Ticor, Lombardo's against failed in her claim Having We, therefore, fees is denied. of attorney for an award quest affirm suit Lombardo's dismissing court's decision the trial 12(b)(6). CR Ticor in accord with against Andersen, C.J., Guy, Brachtenbach, Smith, Utter, JJ., concur. Madsen, Johnson, 10, 1993.] Banc. June [No. En 57765-0. v. Chuck Respondents, al, et Guimont,

Robert Patrick Washington Manufactured Clarke, Appellant, Housing Association, Respondents. al, et General, Ryan, and John J. Attorney Gregoire, Christine O. Assistant, for appellant.

John D. W. Blankinship, Jerry Spoonemore, C. Joseph Brown, Jr., Purdue, Austin, and Montgomery, & Blankinship for respondents Guimont. Osborn,

Russell A. Austin and Kargianis, Austin & for Manufactured respondent Washington Housing Association. Pruzan, Jane Ryan Koler and & for Casey respondent Bear Creek Associates.

Norm Maleng, Prosecuting Attorney and King County, Michael on Joseph Sinsky, Deputy, behalf of King County, amicus curiae for appellant. Sidran, H.

Mark Seattle City Attorney, Hugh R. Tobin, Assistant; Muench, Martin F. City Puyallup Attorney, on behalf of State Association Washington of Municipal amicus curiae for Attorneys, appellant.

David B. Girard on behalf of Evergreen Legal Services, amicus curiae for appellant. Zumbrun, Rivett, Groen,

Ronald A. Robin L. John M. Gantt, Jr., J. Benjamin Richard M. on behalf Stephens Foundation, of Pacific Legal amicus curiae for respondents. J. The issuethis case is the constitutionality Johnson, Act, of the Mobile Home Relocation 59.21, Assistance RCW as amended in 1990. See Laws of ch. 201; Laws of ch. 171. When a mobile home is closed, this law park requires owner to park contribute toward the tenants' reloca- money tion costs. The Thurston County Superior Court struck down the law as unconstitutional under a number of different the- ories. We affirm on the grounds the law violates the park owners' due process rights. substantive

I

Background Mobile home residents park generally own their own mobile homes, lease from they but owner the park "pads" upon which the mobile homes rest. Because of their dual capacities renters, as owners and these residents face dif- particularly

591 Note, See when are closed. parks financial burdens ficult 27 Reforms, Present and Needed Regulation Mobilehomes: (1974-1975). to 159, 166-67 forced relocate Rev. When Stan. L. task expensive residents face the closing park, from a these also to other sites. not but their homes only themselves moving "a fraction fact, represent significant In relocation costs often itself"., Escondido,_ Yeev. of the mobile home value (1992); S. see also U.S._, 153, 162, 112 Ct. 1522 Home in Baar, The to Sell the "Immobile Right Manufactured Park: Valid Space Its Controlled in the "Im"mobile Home Rent 157, 158 Law. Regulation Taking?, or Unconstitutional 24 Urb. Manheim, (1992); Takings Tenant Eviction Protection and Clause, 925, Wis. L. Typically, Rev. n.179 dollars, costs amount to several thousand and transportation $10,000 Baar, can costs be for double-wide home. setup these Many Urb. Law. 170-71. tenants of mobile these are not in a financial to afford relo position home parks 1991, 327, ch. Legislature cation costs. See Laws of 8. As the § has and found, housing "manufactured mobile specifically home a source of to the low provide housing low-cost parks income, infirmed, could elderly, poor they and without which 59.22.010(1)(a); not RCW see housing afford ...." also private Manheim, 1989 Wis. L. Rev. at 955 n.179. to this response problem, Legislature passed (Act) 1989, Home Assistance

Mobile Relocation Act 1989, 201; the Act in Laws of ch. see amended 1990.1 Laws The 1990, ch. 171. Act the owner of generally requires to the park's mobile home relocation assistance to park pay tenants if the owner to close the or convert it to park wants 2(1). are 1990, 171, another use. Laws of ch. Tenants § $4,500 $7,500 entitled to for mobile homes single-wide larger. 1990, homes Laws of ch. mobile double-wide 2(1). 171, § 1991, Legislature again in 1The amended the Act 1991. See Laws ch. 327. case, parties amendments are at issue in this and the have not not presented any argument Regardless, as their effect. the amendments do not to substantially analysis appear change Act and do in this not affect our case.

For relocations occurring 1, prior July 1991, the park owners were generally required the full pay amount of these 2(2). assistance amounts. Laws of 1990, 171, ch. § with Beginning relocations after occurring 30, 1991, June the payment of relocation assistance depends on part whether the tenant is low income. When a low income tenant forced to relocate after June the assist- ance cost is paid one-third park owner and two-thirds by the mobile home relocation fund. Laws ch. § 2(3). When a low income tenant is forced to relocate after 1, 1992, July assistance on payments depend the relocation notice that was If provided. owner park 24 months' gives notice, then the park owner pays for a single-wide $500 mobile home $1,000 and for a double-wide or mobile larger home, and the relocation fund the balance. If the pays park owner gives less than 24 notice, months' then the park owner pays one-third of the assistance cost and the reloca- 2(4). tion fund pays 1990, two-thirds. of 171, Laws ch. § The owner park becomes for responsible to the paying up full amount of the assistance if obligations "there are insuffi- cient moneys in the 1990, [relocation] fund . . .." Laws of ch. 2(6). 171, Tenants who do not as qualify § low income are not entitled to receive any assistance from the relocation fund. However, the owners must park still these pay tenants the same amount the owners are required pay directly low 2(7). income 1990, tenants. Laws of 171, ch. § The relocation fund is in the custody State Treasurer and is administered by Department of Community (4). Development. 1990, 171, Laws of ch. 5(1), The reloca- § tion fund may be used only paying mobile home relocation assistance, although certain surplus funds may be trans- ferred to the mobile home park fund purchase established in RCW 59.22. 1990, 171, Laws of ch. 5(1), The relocation § fund may receive from three money sources. Laws of 5(1). ch. First, Legislature may directly § appropri- ate money fund, for the there is no although evidence the Legislature yet Second, has done so. the Legislature in 1990 enacted a fee on transactions $65 mobile home transferring relocation fond. Laws to the goes of which

ownership, $50 6(1). assist- Third, owner who owes park ch. § the reloca- the assistance to pays income tenants ance to low to the the assistance fond, the fond then distributes tion income tenants. low the Depart- the Director of owners sued park

A group in Thurston Community Development (Department) ment of declaratory judgment They sought Court. County Superior and requested perma- unconstitutional the Act was of the Act the Depart- enforcement injunction against nent monetary damages. owners did not seek ment. The park in favor summary judgment granted The Court Superior struck down the Act as unconstitu- owners and park ruled the Act violated the owners' park tional. The court with- taking constitutional right prohibiting out and violated the owners' just compensation park rights to due The court process equal permanently protection. Act. from enjoined Department enforcing The to the Court of The Department Appeals. appealed Court stayed injunc- Court's Appeals partially Superior court tion. was transferred to this appeal pursuant RAP 4.3.

II Issues At in is the constitutionality requiring issue this case to of their tenants' park pay portion mobile home owners their some relocation costs when the owners convert to parks in private property use. does the Act result Specifically, other use, just requiring payment taken for being public Amendments? under the Fifth and Fourteenth compensation owners of with- Also, does the Act deprive park Amend- in of the Fourteenth out due of law violation process ment?

III

Analysis these issues resolving framework for analytical Seattle v. Wn.2d Presbytery King Cy., was developed 911, 2d 320, 907, denied, cert. 112 L. Ed. 787 P.2d (1990). 238, 111 S. Ct. 284 A land use regulation may be challenged either as an unconstitutional taking or as viola tion of substantive due process. Presbytery, Wn.2d If 329. is regulation on both under challenged grounds, framework, our Presbytery we the tak begin by analyzing issue. ings The court first asks two threshold questions determine if a regulation is to a susceptible takings chal If the lenge. this threshold passes inquiry, proceeds However, court to a if takings analysis. the regu lation survives the takings analysis, court then deter mines whether violates substantive due pro 330; Seattle, cess. Wn.2d at Robinson v. 34, 50, denied, 318, 830 P.2d cert. 121 L. Ed. 2d 598 (1992). course, Of to a land nothing precludes challenge use on either rather than regulation solely on both constitu tional grounds.

We refined and subsequently applied Presbytery anal Sintra, Seattle, ysis 765, Inc. v. 119 Wn.2d 829 P.2d denied, cert. 121 L. Ed. 2d 598 and Robinson v. Seattle, denied, 830 P.2d cert. 121 L. Ed. 2d 598 case, oral in this Subsequent argument however, the United States Court issued a Supreme takings decision in Coun.,_U.S. Lucas v. South Carolina Coastal _, (1992), and sup plemental briefing on Lucas was submitted to this court by Thus, the parties. takings case, to resolve the claim in this we must first summarize the Presbytery takings framework and then discuss the of Lucas on that impact framework before to resolve the proceeding owners' claim. park

A. Takings Presbytery Analysis. sets out two threshold questions determine if additional The first takings analysis necessary. ques- tion is whether challenged regulation safeguards health, safety, interest the environment or the area, fiscal of an or whether integrity regulation "seeks

595 regulated a harm than to on those impose less to prevent an affirmative benefit". providing public the requirement 114 at 329. Robinson, 49; Presbytery, 119 Wn.2d at Wn.2d Sintra, en- 119 Wn.2d at 15 which ("regulations See also interests, harmful beyond hance public go preventing a threshold constitute second activity, may taking"). one destroys is whether question challenged regulation or more of the fundamental attributes of owner- — others, to exclude or to right possess, dispose ship 329-30; Sintra, 114 Wn.2d 119 Presbytery, at property. n.6; Robinson, at 14 119 at 49-50. Wn.2d Wn.2d health, If the regulation merely safety, protects public 1), and welfare and the does not (question regulation destroy 2), a fundamental attribute of then no ownership (question occurs, and the court taking proceeds determining with whether the regulation violates substantive due if process is regulation on both and due challenged process 114 grounds. Presbytery, 330; Sintra, Wn.2d at 119 Wn.2d at Robinson, 12-13; However, at if Wn.2d 50. the regulation either goes beyond harm to preventing public producing benefit, or a fundamental infringes upon attribute of further is property ownership, takings analysis necessary. Robinson, 330; Wn.2d at 119 Wn.2d at 50. Once a court determines a to a regulation susceptible takings challenge, regula- the court next asks whether tion advances state interests. If it substantially legitimate not, does at is a Wn.2d regulation taking. Presbytery, 333; Robinson, 119 at If the does regulation 50. sub- interest, advance a state the court's stantially legitimate next to the analysis challenge whether depends upon is a facial or an "as challenge applied" challenge involving application specific prop- 333; Robinson, 114 Wn.2d at erty. Presbytery, a facial the uses Under statute challenge regulating that can be made of the landowner must show that property, enactment denies the of all mere statute owner use of his or her land. Bitu- economically Keystone viable Coal Ass’n v. DeBenedictis, 470, 494-95, minous L. Ed. 2d 107 S. Ct. 1232 In an "as applied" the court hoc, must in "ad challenge, engage factual in- into economic of quiries" particular impact regula- tion on under that specific property case's circum- unique Keystone Coal, stances. 480 U.S. at 495 Kaiser (quoting States, 164, 175, Aetna v. United 62 L. Ed. 2d (1979)). Ct. 100 S. Under this the court con- analysis, (1) siders: economic regulation's on the impact property; (2) the extent of the regulation's interference with invest- ment-backed expectations; the character of the gov- ernment action. 335-36; Robinson, Wn.2d at 119 Wn.2d at 51. If the court determines a taking has occurred, is just compensation then mandated. Presbytery, 337; Robinson, 114 Wn.2d at at 51.

2. v. Lucas South Carolina Coastal Council. The United States Supreme Court decided Lucas recently Coun.,_U.S._, South Carolina Coastal 120 L. Ed. 2d (1992), which addressed the issue of whether a land use an regulation accomplished unconsti- tutional under taking the Fifth and Fourteenth Lucas, Amendments. In David Lucas petitioner purchased two residential lots on the Isle Carolina, of Palms in South where he intended to build a single-family home on each lot. Lucas, later, 120 L. Ed. 2d at 807. years Two South Carolina enacted the Act, Beachfront which Management prohibited the construction of in certain beach- occupiable improvements Lucas, front areas. 120 L. Ed. 2d at 808. That had act direct effect of Lucas barring from erecting any permanent habitable Lucas, structures on his Ed. 2d property. L. at suit, 807. Lucas brought the act2 him alleging of all deprived opinion Lucas brought 2The is somewhat unclear about whether Lucas applied” challenge majority opinion facial or "as South Carolina statute. The issue, explicitly type challenge appears does not state which is at but to treat it challenge applies takings as a face of the statute and the rule for a facial challenge: say, repeatedly unmistakably, applied '[t]he The cases that" test to be considering [takings] challenge [a] fairly straightforward. is A statute facial thereby two parcels property, viable use of the economically Lucas, 120 L. just compensation. without effecting taking Ed. 2d at 808-09. Court of Supreme with Lucas. agreed

The trial court however, reversed on the Carolina, grounds South interest a legitimate public prevent- advanced legislation new construction. erosion to coastal zones caused ing at 809. The court held when a Lucas, regula- is serious designed prevent tion on the use of property harm, no compensation owing regardless Lucas, effect value. 120 L. Ed. property's on regulation's The United States Court cer- Supreme granted 2d Lucas, 120 L. Ed. 2d at 823. tiorari and reversed. claim, Court analyzing Supreme Lucas' regulatory identified two discrete action categories into the pub are without "compensable case-specific inquiry Lucas, lic interest advanced in of the restraint". 120 support L. includes to challenges Ed. 2d at 812. The first category that results in a invasion" of the any regulation "physical Lucas, owner's 120 L. Ed. 2d at 812. In this cate property. a that a owner to suffer a gory, regulation compels property 3 of his or her is "physical property invasion" or "occupation" regulating taking property it the uses that can be made of "denies an effects if economically owner his land."'" viable use of (Some ours.) Lucas, Coal, (citing Keystone n.6 480 U.S. italics 120 L. Ed. 2d at 813 Ass’n, (quoting Virginia Mining & Reclamation at 495 Hodel v. Surface (1981))). However, 264, 294-96, the trial court 69 L. Ed. 2d analyzed specific property, particular applied effect of the statute as to Lucas's brought Supreme explicitly an stated that Lucas and the Court of South Carolina 377-79, Coun., applied" challenge. 304 S.C. "as Lucas v. South Carolina Coastal 798, 112 895, 895-96 (1991), rev’d,_U.S._, 120 L. Ed. 2d S. Ct. S.E.2d 404 (Blackmun, J., dissenting) Lucas, 2d at 829 n.4 See also 120 L. Ed. ("Here, course, brought as-applied challenge"). Lucas has an may temporary permanent, "physical "occupation" 3A be either invasion" or Lucas, According categori may partial to in either a total or invasion. result (Italics regard permanent required invasions". cal treatment is "at least with ours.) Likewise, Lucas, Supreme has also stated 2d at Court 120 L. Ed. 812. regula takings subject categorical "temporary" treatment where the are English Evangelical his or her land. First tion denies the owner all use of County Angeles, U.S. 96 L. Ed. 2d 107 S. Los Lutheran Church no matter how compensable weighty public purpose Lucas, it or how minute the intrusion. behind The any challenge at 812. second includes where a category economically landowner "denies all bene- proves regulation Lucas, ficial or use of land". 120 L. Ed. 2d at 813. productive Lucas, category taking". The Court labeled this a "total L. Ed. 2d at 822. If a results in either a "physical or a a taking invasion" "total owner has suffered taking", and is entitled to under the Fifth Amend- just compensation ment of the interest regardless support advanced restraint, unless the State can meet a rebuttal test. Lucas, 812-13, test, L. 2d at 815. Under the Ed. rebuttal once an owner establishes that a has denied all viable use of his or her the State can economically property, only by identifying "background avoid paying compensation of nuisance and law that principles property prohibit [the owner] uses now intends the circumstances which Lucas, found". 120 L. Ed. 2d at 823. presently words, In other the State must show the use proscribed interests were not of the title part begin owner's with. Lucas, 120 L. Ed. 2d at 820. Lucas on the Impact Presbytery Takings Analysis. Court's in Lucas Supreme holding requires threshold to accommo

reordering Presbytery analysis date the categories two Lucas do not require of either the the State's analysis legitimacy of case-specific interest or the These purpose regulation. categories are invasions" and "total "physical takings". analysis, with the Lucas both squaring "physi-

cal invasions" and "total as those terms are used in takings", Lucas, under analyzed are most second appropriately in threshold which the court prong Presbytery inquiry, examines whether a on a fundamental regulation infringes at 329-30. attribute of See ownership. deny "Temporary" The observed: a land- Ct. 2378 Court property permanent in kind owner all use of his or her "are not different from clearly takings, requires compensation". First for which the Constitution English, 482 U.S. at 318. impli may invasions" "physical have indicated we Previously, fall and thus ownership of attributes these fundamental cate Pres test. threshold of prong the second under v. Teleprompter Loretto (citing at 330 n.14 bytery, L. Ed. 2d 435-40, 73 CATV Corp., Manhattan land (1982) requiring that law (holding Ct. 3164 868, 102 S. cables to place companies television cable to allow lords of how taking regardless a physical constitutes buildings their intrusion)). invasions", denial a total Like "physical minor also be can use of property beneficial economically of all of own right a fundamental of infringement with an equated 180, 195-96, 835 P.2d App. 67 Wn. Skagit Cy., Powers v. ership. fact, the United In (Grosse, C.J., concurring). with takings" "physical "total Court compared States Supreme subject should be takings" "total why explaining invasions" Ed. 2d at 814. Lucas, 120 L. treatment. to "categorical" is, from of beneficial use Court stated: The "total deprivation of a view, physical the equivalent the landowner's of point Thus, both 2d at 814. Lucas, 120 L. Ed. appropriation". fall takings" and "total of invasions" categories "physical as analysis threshold the Presbytery under the second of prong ownership. right on a fundamental infringing either a "physical result, alleges when a landowner As a demonstrate may the owner taking", or a "total taking" inquiry the threshold dining the outset her or property, his or invasion" of in a "physical results "economically pro- beneficial all deprives tak- Lucas, the "total addition, light ductive use". challenges include facial necessarily must category ings" regula- allege landowners in which land use regulations property. use of their economic affects the adversely tion facial challenge, in this this result because Lucas dictates landowner must challenge, takings" in a "total just as her all him or face deprives on its the statute prove Coal, Keystone See the property. use viable economically to a land use challenge a facial 495. Such 480 U.S. at Previously, challenge. takings" a "total is in effect facial in a impact of the economic Presbytery, analysis under was examined the court first the challenge performed after test and analyzed threshold the State's interest in the regu- However, lation. See Wn.2d at 333. Lucas claim, makes clear that a "total takings" alleging depriva- use, tion of all viable economically does not require analysis of whether the regulation goes beyond a preventing public Lucas, harm to benefit. conferring public 120 L. Ed. 2d at Likewise, the any analysis of interest advanced of the is irrelevant to a support regulation "total takings" claim unless the State can show that the economically viable use denied was by regulation already barred by existing common law of the State's principles property and nuisance Lucas, Ed. Therefore, law. See 120 L. 2d at 812-13. light Lucas, a a facial plaintiff making to the challenge economic of a land use impact entitled to categorical if he or treatment she can at the outset prove during the threshold test all regulation denies economically beneficial use of.the property.

Because the must have the plaintiff at opportunity outset to prove "physical invasion" or "total taking", Lucas necessitates that we reorder the first two of our steps Pres- above, threshold test. As noted bytery we asked previously under the threshold test whether a regulation implicated fundamental attributes ownership analyzing the after of the statute in purpose preventing harm or conferring Lucas, benefit. According challenges fun- implicating damental attributes of such as ownership, "total or takings" invasions", are "physical subject categorical treatment analysis and do not require purpose the regulation Lucas, or the of the State's interest. See legitimacy 120 L. at Therefore, Lucas, Ed. 2d 812-13. based on we must ana- at the lyze outset test whether fundamen- tal attributes of are ownership impaired through "physical takings", invasions" or "total without harm- engaging any analysis legitimacy versus-benefit examining interest. governmental

This of Lucas can be with requirement easily squared our Presbytery analysis by simply the two reordering questions Hereafter, begin will the court inquiry.

of our threshold denies whether inquiry asking threshold Any analy- of ownership. attribute a fundamental owner all takings", including "total sis invasions" or of "physical analyzed be will regulations, facial land use challenges If test. threshold under the first prong outset the. taking" invasion" or "total a plaintiff proves "physical the remainder need not with occurred, proceed the plaintiff However, if the does regulation of Presbytery analysis. the the court ownership, attributes of not fundamental implicate whether analyzing to the threshold inquiry, will next proceed a harm to the goes beyond preventing public regulation the is regulation a If the of purpose benefit. producing public benefit, with balanc- to a court will then proceed the produce with the adverse ing the of the State's interest legitimacy on impact economic the landowner. of test is also in reordering Presbytery

This the threshold the Court's recent anal- Supreme accord with United States Escondido,_U.S._, 118 L. Ed. 2d ysis in Yee S. acknowledges physical Ct. Yee — — under Lucas are by analogy takings" subject "total to analysis regulatoiy takings: different from other cases classes. the Clause fall within interpreting [takings]

Most of our two distinct government physi- the authorizes Where (or title), actually Takings of takes occupation property cal Clause ernment gov- But where the generally compensation. requires merely regulates compensation the use of property, if such of the the owner of the only purpose considerations extent to which as required regulation it deprives or suggest regulation has use of that the property economic unfairly singled owner to bear a burden that property out the category as a The first of should be borne whole. rule; to a clear the second necessar- requires apply cases courts purposes ily complex entails factual assessments of effects of actions. government economic (Citations omitted.) Thus, Ed. under Yee, 118 L. 2d at land use is revised Lucas, our of takings analysis regulations takings, to invasions" "physical reflect the two categorical as follows. takings", and "total above, Presbytery

Under the threshold as revised inquiry, destroys the court must first ask whether regulation fundamental derogates any property ownership: attribute or to dis- including right others; to exclude possess; 329-30; See 114 Wn.2d at Sin- pose property. tra, n.6; Robinson, 119 Wn.2d at 14 at 49-50. In Lucas, another "fundamental light attribute property" to be the to make some viable appears right economically Lucas, use of the See If the property. 813-15. alleges taking", landowner invasion" or "total "physical fundamental be There- right ownership may implicated. fore, Lucas, opportunity under the landowner must have the at the outset under the first prove inquiry threshold either his or her physically "invades" or denies all viable use of the Because economically property. facial to the economic of land use challenges impact regula- tions the landowner denies require prove all viable use of the owner's such economically property, facial fall under this "total challenges necessarily takings" and are category analyzed under the first thresh- old inquiry.

Under the first threshold if the analysis, proves landowner in State taking", the results a "total the will then by identifying have the to rebut this claim com- opportunity mon law of state nuisance and law that principles property the uses the landowner now intends in the circum- prohibit Lucas, in stances which the is found.4 120 property presently L. Ed. 2d at 820-23. If the landowner a "total proves taking" Lucas, question 4This is one of state law. 120 L. Ed. 2d at 822. Lucas notes that inquiry this ordinarily analysis of, things, degree among will entail. . . other the of harm resources, by public adjacent private property, posed the to lands and or (Second) activities, see, e.g., proposed §§ claimant's Restatement of Torts suitability the social value of the claimant's activities and their to the 828(a) (b), 831, locality see, e.g., id., question, in and and the relative ease §§ alleged through by the with which the harm can be avoided measures taken (or landowners) alike, see, government adjacent private e.g., claimant and the id., 827(e), 828(c), §§ Lucas, However, 2d courts must look to their own state's L. Ed. at 822. existing property making in nuisance and law this determination. to occurred, if State fails and the has or invasion" "physical to treat- claim, categorical the owner is entitled rebut Lucas, Ed. at 812-13. other 120 L. 2d ment under Lucas. without is words, just compensation the owner entitled interest the legitimacy public into inquiry case-specific However, alleges if the owner regulation. the supporting fails to prove or "total taking" invasion" "physical se occurred, is constitutional per has then there no either just compensation. requiring taking or invasion" If than a alleges "physical the landowner less is of ownership and if a fundamental attribute taking" "total second of the to the proceeds court implicated, not otherwise Under the second inquiry, threshold Presbytery questions. the the safeguards pub- the challenged regulation whether we ask the fiscal health, safety, the environment or lic interest area, the "seeks less of an or whether integrity impose regulated require- a harm than to on those prevent Robinson, benefit".5 ment of an affirmative providing public 14-15; Sintra, 119 at Pres- at 49. See also Wn.2d Wn.2d If regulation goes beyond pre- at 329. bytery, caused directly real harm to the which is venting public on those and instead prohibited imposes use an affirmative regulated requirement providing if on a fundamental attri- benefit, regulation infringes analy- its taking bute of the court with ownership,6 proceeds parties argue part threshold 5Several and the concurrence this analy by language questioning test harm versus benefit is undermined Lucas Lucas, language Curiously, 2d this sis. See 120 L. Ed. at 819. concurrence uses doctrine, n.13, support as for a broad insulation concurrence whereas any argue complete rejection respondents language same be read as a should however, go arguments, We to address their which insulation doctrine. decline takings challenge beyond necessary to a facial decide narrow issue of what dismantling begin posed Moreover, premature tak our in this case. it would be Robinson, Sintra, framework, carefully ings without crafted Supreme guidance Court. on this issue from United States more definitive Therefore, modify at this time reserve to further our framework we decline modifications, any, presented with a case if until we are discussion of additional squarely the issue. addresses ownership property every infringement a attribute on fundamental 6Not See, e.g., "taking". Presbytery, necessarily 114 at 333 n.21. a Wn.2d constitutes 604

sis. Under analysis, the court first examines whether the regulation state substantially legitimate advances interest. If not, it does 114 regulation the is a Wn.2d taking. Presbytery, Robinson, at 333; If, 119 50. the however, Wn.2d at state, does substantially interest, advance legitimate the court then a balancing test. The court asks whether performs the state interest in the is its ad- outweighed by verse economic to the landowner. impact particular, (1) court considers: economic on regulation's impact (2) the extent of property; regulation's interference with expectations; investment-backed the character of the 114 government 335-36; action. Wn.2d at Robin- Presbytery, son, 119 51. If Wn.2d at the court determines that has taking occurred, is then mandated. 114 just compensation Robinson, Wn.2d at 336; 119 Wn.2d at 51. Application Takings Analysis. case, to this

Turning Department contends the trial court erred in because granting summary judgment Mobile Home Relocation Act does not result Assistance an taking. unconstitutional owners contend the trial park court's ruling was correct because the Act violates both fed eral and state constitutional the State provisions prohibiting from taking unless just compensation paid. See (as U.S. Const. amend. 5 to the states applied through (amend. 9). Amendment); Fourteenth art. Const. 16§ However, owners have not briefed relevant park Gunwall factors an necessary determining whether inde analysis the state constitution is See pendent proper. Gunwall, State v. 76 P.2d A.L.R.4th (1986). only we will the federal Accordingly, analyze constitution; we will not address owners' argu park ments that the state constitution provides protec greater See, Video, Tukwila, tion. World Wide Inc. v. e.g., 382, 390, 816 18 (1991), denied,_U.S._, P.2d cert. (1992).

L. Ed. 2d 741, 100 Robins, 74, 82-83, 64 Shopping PruneYard Ctr. v. L. 2d Ed. S. Ct.

605 we must analysis, Presbytery takings our revised Under any fundamen- destroys the regulation first decide whether to right to including possess, attribute of ownership, tal to make some or others, dispose property, to exclude Lucas, L. Ed. 2d 120 viable use of See economically property. Robinson, 14 119 Wn.2d 813-15; Sintra, n.6; 119 at at Wn.2d case, this 49-50; park 114 at 333. In Presbytery, than "as applied" the Act on its face rather challenge owners above, noted facial As any particular piece property. to outset analyzed land use are at the challenges regulations analysis. this threshold inquiry under first , regulation, to a land use challenge Under facial regu show enactment of the landowner must mere Coal Ass'n constitutes a Bituminous taking. Keystone lation 470, 493, 472, L. Ed. 2d 107 S. DeBenedictis, 480 U.S. 94 v. (1987). one, a facial is a challenge high Ct. 1232 test for evi presented any because the landowner has not part his on or dence about the particular impact that a statute Thus, her of land. to succeed in parcel proving can its face effects a the uses that be taking by regulating on the mere made of the landowner must show that property, economi the statute denies the owner all enactment of Coal, U.S. at viable use of the 480 cally property.7 Keystone Reclama Mining Hodel v. & (quoting Virginia 495 Surface 294-96, 2d S. Ass'n, U.S. 69 L. Ed. 101 Ct. tion 452 656, 747 State, v. 109 Wn.2d (1981)); 2352 Orion Corp. (Orion (1987) II), denied, 1062 cert. 486 U.S. 1022 P.2d (1988). In need not exhaust facial landowners challenges, 114 Wn.2d at 333. Such Presbytery, administrative remedies. exhaustion regulation pre be futile if indeed the would use of the land. See Orion any vented viable economically 441, 457-60, P.2d State, Corp. prop challenges regulations that restrict the use of 7In addition to facial include, alleging

erty, types challenges example, that a of facial those other physi ownership regulation deprives owner of fundamental attribute an Washing Settle, Regulatory Taking cally Doctrine in her land. invades his or See It, Don't, Puget U. L. 386-92 Now You Sound Rev. ton: Now You See (Orion I). challenge A facial in which the court determines a economically denies all viable use of prove relatively "should to be a rare occurrence". 335; Lucas, Wn.2d at see 120 L. Ed. 2d at 814. park complaint only case,

In this owners' can be read as mounting applied" challenge a facial rather than an "as to the impact any specificpiece Act. It does not address the Act's on property. Robinson, See 119 Wn.2d at Moreover, Department's appeal park civil statement and the owners' appeal confirm answer the civil statement this case in- only challenge. Despite making volves a facial a facial chal- lenge, park attempt the owners have made no to the show regulation property's of their use under the Act denies them economically property. all result, viable use of their As a the park challenge owners' facial fails insofar as the Act is chal- lenged regulation affecting as a their economic use of their property.8 park taking

The owners also contend the Act constitutes a by physical occupation. park argue "invasion" or owners keep parks open, imposing the Act forces them to their the park upon permanent unwelcome, tenants them as occu- pants regulations resulting on their land. Governmental physical occupation property regulations invasion or of or authorizing party occupy property a third to the are "tak- ings" regardless occupation weighty of how minor the or how Teleprompter the interest involved. Loretto v. Manhat- Corp., 419, 426, tan CATV 73 L. Ed. 2d 102 S. (1982). "physical may implicate Ct. 3164 Such invasions" a park challenge by alleging 8The owners also raise a facial the Act does not substantially legitimate applied. advance state interests no matter A how it is substantially legitimate that does not advance a state interest can taking. Presbytery, challenge ripe effect a 114 Wn.2d at 333. Such a facial allegation depend review because the does not on the extent to which the landown deprived particular property ers are of the economic use of their or the extent to Yee, they compensated. However, park which are 118 L. Ed. 2d at 169. owners' argument legitimate addressing is without merit. The State has a interest problem expenses park statewide of relocation associated with mobile home clos ings. Making funds available to mobile home owners who are forced relocate substantially advances that interest. under the first ownership fundamental attribute of property result, As a if a landowner Presbytery analysis. of our prong a "physical the owner to suffer a proves regulation compels or her the owner is occupation or of his property, invasion" treatment under Lucas must categorical entitled to into inquiry without further just compensation any receive Lucas, interest 120 L. justifying regulation. the public Ed. 2d at a physical

To has effected government prove must the landowner show through regulation, taking its the landowner to submit regulation "requires Escondido, her] or land". Yee v. physical occupation [his 153, 165, _U.S._, For has inva- government physical example, compelled sion by flooding property landowner's property installation of the landowner to allow requiring physical Yee, L. Ed. 2d at 165 cable on the owner's property. (13 Wall.) Co., Bay Green U.S. (citing Pumpelly 440). (1872); Loretto, L. 458 U.S. at Ed. 557 In a case similar this one mobile involving regulation homes, the United Court held a local rent Supreme States ordinance did amount to a physical taking control not it did not land- park require owners' because his owner to submit to the or her physical occupation Yee, L. Ed. did holding land. 2d at 165. the not result in a Court stated: physical taking, voluntarily [The owners] rented land to mobile home park their scheme, regulatory least on the owners. At the face of neither owners], they City [park once have compels the rented their nor State tenants, property doing to so. To the to continue Residency park that a contrary, provides the Mobilehome Law may change wishes the use of his land evict his owner who Put tenants, bluntly, with twelve months notice. no albeit six or government any park [the has required physical invasion by [The owners'] tenants were invited property. park owners'] owners], government. upon [the not forced them park (Citations omitted.) Yee, 118 L. Ed. 2d at 165. Yee, the could still evict the tenants park owners Thus, Court held use of their land. the Supreme

change case only control ordinance in that was rent .608

of the park owners' use of their and did property, not amount to a per se because it did not taking authorize an unwanted physical occupation Yee, owners' land. park 118 L. Ed. 2d at 168. Yee,

Like owners' park physical takings argument this case lacks merit. The Act on its face does not force park owners to allow others to their Rather, land. occupy park owners have rented to the voluntarily space mobile home owners, and the Act itself does not compel park owners Indeed, continue this the Act still allows the relationship. park tenancies, owners to terminate their close their parks, and sell their Thus, land. owners have failed to park show that the Act on its face requires any "physical inva- sion" of their Likewise, for property.9 reasons, the same Act does not unconstitutionally infringe any other funda- mental attribute of such as the property ownership, right to others, exclude possess, dispose property. we

Accordingly, hold the trial court erred in the Act ruling results in an unconstitutional taking of without just compensation.

B. Substantive Due Process if Even a regulation is not to a susceptible under challenge, framework, our it is next subject to substantive due process scrutiny reasonableness. Pres bytery, case, Wn.2d at 330. In this the Department contends the trial court erred in granting summary judg ment on the grounds Act violated the owners' due park process rights. Fourteenth Amendment states prohibits life, from "depriv[ing] any person liberty, or property, Const, without due process of law. . .." U.S. amend. 1.§ park argue money required 9The owners also that the transfer of under the physical taking. disagree. argument Act itself constitutes a We A similar has rejected by Supreme Yee, been twice the United States Court. See 118 L. Ed. 2d (reduction residency may at 166 in rent under mobile home law "be said to another", regulated transfer wealth from the one . . . "in but itself does not physical invasion"); Sperry Corp., convert into United States v. (1989) (fee n.9, 290, 110 requirements U.S. S. Ct. 387 do not physical takings). constitute To determine whether a violates due process, court uses the classic due 3-prong test. process Presbytery, "(1) 114 Wn.2d at 330. must We determine whether is aimed at a achieving legitimate public purpose; (2) whether it uses that are necessary means reasonably (3) achieve that whether it is purpose; unduly oppres- sive on the landowner."10 case,

In this we must first decide whether the Act is aimed at achieving legitimate The public purpose. purpose of the Act is to aid mobile home owners with relocation when a mobile home expenses is closed. The State has park interest legitimate the statewide addressing problem relocation expenses associated with mobile home clos- park funds ings. Making available to mobile home owners who are forced to relocate advances that interest. substantially Department argues precedent supports 10The no federal this court's use of oppression independent prong process. undue as an third of substantive due 3-prong process This substantive due test first was used the United States Supreme Steele, 133, 137, 385, Court in Lawton v. 152 U.S. 38 L. Ed. 14 S. Ct. (1894). Although only parts, the Court in Lawton divided the test into two (the Lawton, oppression part analysis. undue was 152 U.S. at 137 means "reasonably necessary accomplishment purpose, must be for the and not individuals"). (Italics ours.) unduly oppressive upon The Court has continued apply 3-part acknowledged this test since Lawton and the Lawton formulation is 590, Hempstead, 130, still valid in Goldblatt v. 369 U.S. 82 S. Ct. 987 (1962). applied Goldblatt does caution that the rule must not be with strict precision questions because "debatable as to reasonableness are not for the legislature Goldblatt, (quoting Sproles courts but for the . . .". 369 U.S. at 595 (1932)). Binford, 374, 388, 1167, Despite 286 U.S. 76 L. Ed. 52 S. Ct. 581 this however, Legislature, may employ deference to the courts still substantive due Cleveland, process analysis. Ohio, 494, 502, See Moore v.East 52 L. Ed. 531, (affirming process 2d use of substantive due to invali city ordinance); Stoebuck, Problems, Diego date unreasonable San Gas: Pitfalls (1983). Way, Contemp. "unduly oppres and a Better 25 J. Urb. & L. 23-26 analysis merely provides determining sive" a structure for the overall reason regulation's public purpose. ableness of the means used to achieve the See Com ment, Validity Testing Regulations: the Constitutional Land Use Substantive Superior Takings Analysis, L. Rev. Due Process as Alternative to 57 Wash. (1982). Recently, housing violating 740 n.157 we invalidated a ordinance as process unduly oppressive it unrea substantive due because was and therefore denied, Seattle, 34, 55, sonable. Robinson v. 119Wn.2d 830 P.2d cert. L. Supreme grant Ed. 2d 598 The United States Court refused to certiorari in that case. ques- of the first due process the Act the test passes

Thus tion. we must deter- process question,

Under the second due to reasonably necessary are mine whether the means used are means employed Whether the purpose. achieve that is debat- to the Act's necessary achieving purpose reasonably with reloca- mobile home owners Certainly, providing able. necessary step a reasonably tion assistance would be here is The more difficult issue the Act's purpose. achieving the assistance it is to reasonably necessary require whether To assist in determin- owner. by closing park to be paid reasonably the Act are by these means used whether ing to the third due we must turn necessary regards, all oppression. that of undue question, process unduly oppressive by if a statute is We determine weigh nonexclusive factors to a number of examining on the owner: being placed property fairness of the burden side, problem, the seriousness of public's On the it, degree which the owner's land contributes extent to feasibility it and the of less regulation solves proposed which the side, relevant. On the owner's solutions would all be oppressive the amount ing loss, the extent of remain- percentage of value uses, permanent or uses, temporary and future past, present to which the owner should regulation, the extent nature of for the and how feasible it is anticipated have such currently planned uses. present owner to alter Stoebuck, San Gas: Diego (citing Problems, and a Better & L. Way, Contemp. 25 J. Urb. Pitfalls (1983)). 3, 33 factors on the public's begin by examining

We that the recognition the Legislature's side. The Act represents seri home are parks caused the closure mobile problems Mobile the seriousness of these problems. ous. We too note for the elderly a source of low-cost housing home parks provide often cannot afford with low incomes. These people and those owner to closing park pay Yet by requiring relocation costs. sums of extremely high can amount costs, these which housing of solving prob State is the burden placing money, Seattle, supra, of a few. Robinson lems on the shoulders as unduly oppressive we struck down a ordinance recently city relocation things, where the ordinance other required, among demolished assistance to tenants when landowners displaced Robinson, low income on the owners' housing property. Wn.2d at 55. We stated: problems a lack income hous- homelessness and of low ing in Seattle are in land- part a function of how all Seattle using property. already owners are their . . . This court has [housing solving problem ordinance] said of the decrease in affordable rental housing city in the Seattle is a commonly burden imposed to be shouldered and not on individ- ual owners.

(Italics ours.) Sintra, Robinson, 119 Wn.2d at 55. See also Likewise, case, 119 Wn.2d at 22. in this the costs of relocat- owners, mobile home like the related and ing more general an problems maintaining of low income adequate supply housing, are more the burden of as a whole properly society than of individual owners. While the of a property closing home mobile is the immediate cause of the need for park assistance, relocation it is the of low general unavailability income housing and the low income status of many mobile home owners that is the more fundamental reason why the relocation assistance is An individual necessary. owner park who desires to close a is not park significantly more responsible general society-wide these problems than is the rest of the as a population. Requiring society whole to shoulder the costs of relocation assistance repre- sents a far less solution to the oppressive problem. next turn reflecting

We to the factors the legislation's effect on owners. The amount of a property money park fact, owner must under the Act is under pay substantial. scenario, case the obligation worst size owner's park If is the relocation assistance fund lacks suffi- staggering. burden, Act cient resources to its share of the the leaves pay entire amount of the owners hable for the park paying — $7,500 in the relocation assistance to for each tenant up if has 100 the park pads, For a mobile home park. example, $750,000 for paying solely owner could be park responsible exercise his or her to close right because the owner wants to to Even if the fund has sufficient resources the business. burden, Act still owners to requires park pay share the vary large money, depend- sums of the amount of which will gives on much owner to the tenants. ing park how notice Moreover, the Act does not limit the relocation payment Although those have a low income. ten- assistance to who who not the Act's of "low income" are ants do meet definition fund, from are entitled to payments they not entitled to own- directly by park receive the same made payments must Thus, directly ers to low income tenants. owners park relocation assistance even to those tenants who are not pay burdened. financially permanent

We also note Act's are nature. provisions have park There no indication owners could antici- their requirements they opened the Act's when pated parks; Act not certainly give any grace period itself did them to to continue to use their allowing them decide whether into home before the Act went park as a mobile no alter Thus, effect. owners were to park given opportunity their or uses without themselves present planned subjecting to the Act's onerous obligations. it

In this we deem increased regard, important attach imposed by activity leaving costs the Act or the business. conducting business rather than of entering cases in has cited number different Department constitutionality legisla- which this court has upheld others, money yet tion businesses to each requiring pay either entering these cases involved costs incident See, Usery v. Turner Elkhorn e.g., the business. conducting Co., Mining U.S.

(1976) (addressing pay mine requiring operators statute disease); ex rel. Davis- lung for black State compensation 156, P. 1101 Clausen, Smith Co. v. 65 Wash. workers' employers pay a statute (analyzing requiring in earlier cases Owners of businesses these compensation). down and by closing had the these costs avoiding option other The imposition their using purposes. avoided in this manner. on a business cannot be closing costs We conclude the Act is and violates unduly oppressive substantive due In of this we need not process. light holding, address the other to the trial court's challenges summary judgment order raised the Department.

C. Severability The issue concerns the remaining severability. Act's even if the Act Department argues is unconstitutional other of the Act are part, portions valid and should be sev ered from the unconstitutional The test for sever- portions. ability is whether provisions invalid are unseverable and it cannot reason- ably be legislature believed that passed would have other, or, one without the alternatively, ... whether elimi- nation of the portion destroys unconstitutional so the act as to render it incapable of accomplishing legislative purposes.

(Citation omitted.) Anderson, State v. 234, 236, 81 Wn.2d 501 P.2d (1972); see State, 663, 677, Seattle v. 694 P.2d 641 case, this the Act does contain a clause, severability

which states that a decision invalidating any provision of the Act will not affect the remainder of the Act. Laws of 1989, 201, ch. 17. "A severability § clause is often given great weight determining the intent Legislature's to make different of a parts Seattle, statute severable." 103 Wn.2d at Nevertheless, case, this remaining provisions the statute are unseverable under the Anderson test because the elimination of the unconstitutional provisions renders the remainder of the Act "incapable accomplishing legislative purposes". Anderson, 81 Wn.2d at 236. For exam- ple, Department argues portion money be used for relocation assistance is not paid by closing owner, but park instead is from the paid collection of fees on the transfer of mobile See homes. Laws of ch. §§ 6(1). 5(1), to the According the transfer fees are Department, valid and be may severed from the unconstitutional portions In the Act, however, Act. 1991 amendments to the Legislature placed 1, 1992, termination date of on the July collection of these 13(3); fees. Laws of ch. see § 614 can- Thus, these transfer fees alone

former RCW 59.21.060. legislative fund to accomplish not a sufficient provide home ten- payments assist mobile providing purpose to suitable alternative sites. relocating ants with severability the Department's we conclude Accordingly, is without merit. argument

IV

Conclusion the Act results in an ruling We hold the trial court erred just compensa- without taking unconstitutional concluded the Act vio- However, correctly tion. the trial court Amendment substantive lates the owners' Fourteenth park Thus, hold the Mobile Home Reloca- rights. due we process 59.21, Act, by RCW enacted Laws codified at tion Assistance 201, 1990, 171, ch. is 1989, as amended Laws ch. and granting unconstitutional. affirm the trial court's order We Act, and enjoining enforcement summary judgment, the defendant plaintiffs judgment against awarding their costs herein. C.J., and Dolliver, Durham, Brachtenbach,

Andersen, JJ., concur. and Guy, Smith, — I majority's concur in the (concurring) J. While

Utter, Act Home Assistance the Mobile Relocation conclusion (Act) due as a violation of substantive unconstitutional I as a what view separately highlight I write process, dicta, law. In takings in our troubling development the notion that our recent has majority apparently accepted Seattle, 1, 829 Sintra, Inc. 119 Wn.2d P.2d decisions in v. Seattle,_U.S._, nom. v. 765, cert. denied sub Robinson (1992) v. 113 676 and Robinson 598, 121 L. Ed. 2d S. Ct. denied,_U.S. Seattle, 34, 318, P.2d cert. 119 Wn.2d 830 598, (1992), S. 676 effected _, 113 Ct. which we of the takings analysis transformation significant in Orion Corp. and constructed so carefully painstakingly (1987), denied, cert. 486 State, 621, 747 P.2d 1062 1022, U.S. L. Ed. 2d Seattle v. King Cy., 787 P.2d

907, cert. denied, 112 L. 2d Ed. S. Ct. I both with the disagree majority's nonbinding new formulation and with the theory Sintra Robin son worked such a change our law.

I language I majority which find objectionable is dicta and as such is not on this binding court subsequent cases. The plaintiffs have a facial brought only challenge against Act, and the has majority correctly determined that no showing has been made of a complete of all deprivation viable economically use. Under the major- ity's this analysis, determination disposes plaintiffs' takings claims entirely. Consequently, those portions majority which otherwise describe our takings are analysis not necessary to the disposition the case and are thus dicta. Even with this caveat in mind, however, I am still unable to join majority opinion. For the sake of discus- sion in future cases an expression of my may views be helpful.

In Orion and this court developed compre- hensive framework for analyzing constitutional challenges to land use regulations. One of the critical features of that framework was the distinction it drew between challenges dealt with under the due process clause and challenges heard under the takings clause. The distinction was neces- sary because of conflict between two lines of fed- divergent eral authority, one derived Kansas, from v. Mugler 123 U.S. 623, 205, 31 L. Ed. (1887), and the other from Pennsylvania Mahon, Coal Co. v. 393, 260 U.S. 67 L. Ed. 322, 43 S. Ct. 158

In Mugler, United States Supreme Court emphatically the notion rejected the State must land- compensate owners for police power which regulations happen affect the value of private land. prohibition

A simply upon the use of property purposes for declared, by that are legislation, injurious valid to be to the cannot, just health, morals, community, any safety of the or sense, taking appropriation property be deemed a an public benefit. Coal, discussing without Pennsylvania at 668-69. 123 U.S. Court re apparently the United States Supreme Mugler, be field, may that "while stating versed cryptically it will extent, goes too far to a certain if regulated The tension 260 U.S. at 415. taking." be as a recognized evident, and Coal was Mugler Pennsylvania between of confusion in as the source of decades has been identified date, Court has Supreme To the United States takings law.11 conflict, having any definitive resolution of not provided Pennsylvania Compare nor Coal. Mugler overruled neither DeBenedictis, v. Coal Ass'n Keystone Bituminous (1987) S. (applying Ed. 2d Ct. 1232 L. Coastal with Lucas v. South Carolina Mugler-type analysis) 798, 112 S. 120 L. Ed. 2d Ct. 2886 Coun.,_U.S._, far"). use went "too when a land (determining State, 747 P.2d Corp. In Orion 227, 108 S. (1987), denied, 486 U.S. cert. King Cy., Seattle Presbytery Ct. 1996 and of denied, 911, 112 L. Ed. 907, cert. Wn.2d 787 P.2d (1990), a careful resolu developed 2d we by recognizing Coal Mugler-Pennsylvania problem tion of the chal due and process difference between critical in Orion that gener to land use We held regulations. lenges safe a land use regulation when a landowner ally challenges environment, or health, in "the interest guarding public is, a valid community", police fiscal integrity to the landowner is limited the due regulation, process power Orion, 109 offending regulation. remedy of invalidation to this rule was the cir- exception at 657. The chief It, 11See, Settle, Washington: e.g., Regulatory Taking Now See in You Doctrine Stoebuck, (1989); Don’t, Puget San Sound L. Rev. 345-51 Now You U. Problems, Contemp. 3, 11-14 Way,25 & L. Diego and a Better J. Urb. Gas: Pitfalls Rose, Why Takings Still a Issue is See also Mahon Reconstructed: (1983-1984) Muddle, (describing ten fundamental 57 Cal. L. Rev. 587-97 S. conceptions on individual duty and those based sion civic between liberty). cumstance where the land use served the regulation purpose Orion, in land." "enhanc[ingj publicly owned right words, Wn.2d at 651. other land use based on regulations were to be under due rather police power analyzed process than as unless the State in fact takings, employing was to land for guise police power regulation appropriate use.

In Presbytery, we limited the Orion holding by recognizing that a land use regulation based on the could be police,power subject to takings challenges question if one or more "destroys of the fundamental attributes of owner- — the ship right to exclude others and to possess, dispose property." Presbytery, Wn.2d at 329-30. Orion Together and thus described a rule for simple challenges land use police power regulations: Such were to be challenges under analyzed clause, the due process regulations unless the were employed enhance the value of held publicly property, or destroyed a fundamental attribute of property.

By clearly the circumstances under which tak- delineating ings challenges would be permitted, Orion-Presbytery test defused the basic tension Mugler Pennsyl- between vania Coal.12It also effectively balanced the competing rights of state agencies hand, On property owners. the one governmental agencies were no to run the longer required risk of huge liabilities whenever enacted they innovative land use regulations. governments [I]f local in the past thought had that enact-

ment land use might monetary result awards, "very likely then proposed no one would have planned zone and even if of development, zone, unit floating cluster or the prior blessing those efforts had received the developers, highly unlikely it is that environmental con- analytic originally elucidating 12Thechief hurdle faced the Orion court Mugler-Pennsylvania its resolution of the Coal tension was the fact that Justice employed "taking" describing Holmes had the term the effect a land use regulation hurdle, that went "too far". 260 415. To U.S. at overcome this the Orion recognized, courts, previous Pennsylvania court as had that the far" Coal "too test Orion, metaphor process analysis. (citing was in fact a for due 109 Wn.2d at 651 York, 587, 381, Investing Fred F. French Co. v. New 39 N.Y.2d 350 N.E.2d 385 (1976)). N.Y.S.2d 5 618 waterways would and inland regulation of coastal cems been risked."

ever have Sallet, "Tak- Regulatory 114 at 332 (quoting Wn.2d The Court's Search Supreme Compensation: and Just ings" 635, Continues, (quot- Law. 636 18 Urb. a Solution Taking Use Controls and the Exclusionary Land Wright, ing (1980-1981))). 545, On the L.Q. Issue, 8 Const. Hastings land use regulations from other, protected landowners were As the major- of due guaranty process. "too far" go tooth- hardly is today, guaranty demonstrates ity amply less. land power Presbytery approach police

The Orion and as known, somewhat inaptly, come to be use has regulations ordi- because most doctrine". It is so called the "insulation chal- takings from are "insulated" regulations land use nary such however, because is inapposite, The lenges. appellation examination. process insulated from due are not regulations dicta, portion from this has majority, departed State, v. Corp. in Orion structure erected the comprehensive U.S. denied, 486 (1987), cert. 621, 747 P.2d 1062 (1988) and Pres 1022, 100 Ed. 2d 108 S. Ct. L. P.2d King Cy., Seattle bytery 238, 111 S. Ct. 284 911, 112 L. Ed. 2d denied, 498 U.S. cert. will be sub that a police power regulation It states " less to prevent if it 'seeks challenge to a ject regulated requirement on those impose harm than to benefit.'" at 594-95 Majority, an affirmative public providing 34, 49, P.2d Seattle, 119 Wn.2d Robinson v. (quoting 598, 113 S. Ct. 676 denied,_U.S._, cert. (1992)). and the one this formulation

The differences between Under are substantial. Orion-Presbytery out in set originally is test, only Orion-Presbytery police power it enhances the value when takings analysis subject version, such a the majority's held Under publicly property. it requires when takings analysis subject benefit, only properties even if the of a provision of police power held. The number are privately benefited regulations which actually enhance the value of publicly held land is relatively small. The number of police power regulations which arguably of a require provision public benefit is potentially enormous. Jettisoning form original test Orion-Presbytery dramatically expands poten- tial number of takings challenges.

II The majority's reformulation of the test Orion-Presbytery is troubling for a First, number of reasons. it requires courts to engage in a form of analysis which is logically incoherent and which has been explicitly, and recently, disavowed by the United States Supreme Second, Court. the majority's formulation has the to capacity resurrect all of the difficul- ties which initially spurred this court to the Orion- develop Presbytery test in the first place. third, And the cases on which the majority were, relies like one, this cases which the appropriate formulation of the insulation doctrine was not directly relevant to the decision. above, As noted the majority exposes a land use regulation "

to takings when challenge the regulation 'seeks less to pre- vent a harm than to on impose those regulated the require- ment of an providing affirmative public benefit.'" Majority, 49). 594-95 Robinson, (quoting 119 Wn.2d at Effectively, this analysis requires courts to determine whether a given regulation is "harm-preventing", or "benefit-producing".

There is no manner principled in which to make this determination. Does a regulation which prohibits build- ing of a smoke-belching factory, example, "prevent harm of pollution" or "provide the benefit of clean air"? Does a regulation which requires coal companies to leave portions of their coal in the earth support surface "prevent harm of subsidence" or "provide the benefit of stable land"? There are simply not principled answers to these questions. Indeed, since it is possible to argue virtually land any use regulation provides some benefit, the result of the majority's formulation be to may obliterate the insulation doctrine altogether. was

The incoherence of the harm/benefit distinction logical Court recently Supreme the United States recognized Coun.,_U.S._, 120 L. Lucas v. South Carolina Coastal (1992).13 Ct. Court Ed. 2d 112 S. treated be- analysis harshly, harm/benefit "the distinction noting 'benefit-conferring' 'harm-preventing' tween in the 112 Ct. at 2897. eye often beholder." S. Under Lucas, the Court observed: facts a servitude on land is say imposing One could Lucas's necessary prevent "harming" his use of it from in order instead, resources; or, ecological in order South Carolina's achieve the "benefits" of an ecological preserve. 112 S. Ct. at contrast, by way

The Orion-Presbytery analysis, sharp not distinction between rely upon insupportable does Instead, and harm-preventing benefit-producing regulations. a only "enhance[s] asks the challenged regulation it whether A Orion, in 109 Wn.2d at 651. right owned land." publicly in actu- question must whether inquire court use, than held land rather ally puts privately public it accrue to might public benefit which produces whether words, the regulation as well as In other does private. lands a land in favor of servitude on effectively impose private held land?14 publicly recognize majority question impact of the ofLucas 13I that the has reserved "dismantling doctrine, partially in our order to avoid on the insulation least Sintra, framework, carefully takings in and Robinson". crafted Lucas, require aspect however, Majority, not us to disman at 603 n.5. This does framework; instead, takings of that it indicates that certain mutations tle our supports original Orion- were and a return to framework unwise therefore

Presbytery test. Orion-Presbytery aspect this commentators have misunderstood 14Some Comment, See, Takings: Washington Taking e.g., Issue With. Has the framework. (1991). Indeed, 545, Far?, a Supreme L. Gone Too 66 Wash. Rev. State Court appears requires test harm/ itself to conclude that the a footnote result, necessary analysis. Presbytery, 114 This is not a Wn.2d at 329 n.13. benefit recognized public repeatedly that a use under have however. Commentators necessarily standing into clause not devolve the "morass" does See, Rubenfeld, 1077, e.g., Usings, analysis. 102 Yale L.J. 1111-30 harm/benefit Power, Process, (1993); Stoebuck, Takings, Due & Lee L. Rev. and Wash. Police (1980). given put, 1057, 1083-89 Properly question is not whether course, Of can be taken for use private property even when there is no overt occupation appropriation. Thus, this court entertained the that the possibility creation of the Padilla Bay Sanctuary taking worked on Orion's tideland holdings any because use of reasonably profitable those tidelands have been may preempted by Sanctuary State, itself. 621, 662, Orion 747 P.2d Corp. (1987), denied, cert. 486 U.S. If the did in fact Sanctuary prohibit use, such it had effectively appropriated Orion's land on behalf of the Sanctuary was thus a taking.15 Similarly, in United States v. Causby, 90 L. Ed. (1946), S. Ct. 1062 the United States Court found a Supreme where a farmer taking lost his livestock business as a result of aircraft flying low over his land to touch down at a nearby The Court found airport. because the taking aircraft essen tially imposed a servitude on the land in private favor public airport. "[TJhe land is appropriated directly as as if it completely were used for the runways themselves." 328 U.S. at 262. majority's formulation dicta of the insulation doc-

trine is also troubling it resurrects some of the prob- lems which Orion-Presbytery labored so to avoid. As mightily above, noted one of the principal motivating concerns Orion-Presbytery was the that in tak- possibility uncertainty ings law could stifle needed in land use development regula- tion the through specter huge liability judgments against Orion, local government. 649; See 109 Wn.2d at Presbytery of 320, 332, 907, Seattle v. 114 cert. King Cy., Wn.2d 787 P.2d provides lands, public a benefit for which would indeed re-create the harm/ problem, regulation public provides benefit but rather whether the for use of the (which private property. why shutting smoke-emitting factory may This is down a land) nearby land, including public taking, benefit all is not a Hadacheck v. Sebastian, 394, 348, (1915), creating navig- 239 U.S. 60 L. Ed. 36 S. Ct. 143 but a is, States, private pond able servitude into a for use Kaiser Aetna v. United (1979). 164, 332, 444 U.S. 62 L. Ed. 2d any reasonably profitable 15Thecourt remanded to determine whether such Orion, use existed. 109 Wn.2d at 662. 622 238, 111 S. Ct. 284 911, 112 L. Ed. 2d

denied, 498 U.S. (1990). as as and amorphous manipulable a test By stating that distinction, the re-creates majority harm/benefit the fashion in which a there is no principled Since uncertainty. harm a given court can determine whether way is of course no or there producing, benefit preventing the response. Under predict judicial to be able to regulators to where it formulation, returning law is takings majority's and Presbytery. was to Orion prior test, the majority chiefly revising Orion-Presbytery In Sintra, in Inc. v. this recent decisions relies court's upon denied nom. 1, 765, P.2d cert. sub Seattle, 119 Wn.2d 829 598, S. 121 L. Ed. 2d Seattle,_U.S._, v. Robinson (1992) 34, 830 Seattle, 119 Wn.2d and Robinson v. Ct. 676 S. 598, 113 L. Ed. 2d denied,_U.S._, cert. P.2d (1992). those court in both of While it is true that the Ct. 676 man test in the same Orion-Presbytery described the cases here, was the shift in neither case majority ner as does the Furthermore, reached. to the decision language necessary it work was possibility decision discussed neither test and Orion-Presbytery change a fundamental ing to discuss did not have an opportunity thus the court in the law. takings or demerits of a revision merits Robinson, brought landowners the plaintiff Sintra Seattle,16 City 42 U.S.C. 1983 action against § As clause. takings of due and of process violations citing matter, defended City against a threshold It insulation doctrine grounds. on Orion-Presbytery claim Preser- Housing question, argued (HPO), measure power was a valid police Ordinance vation problem displacement address the serious enacted to Sintra, 119 Wn.2d of low-income tenants. homelessness remedy provides for violations of amounts to a tort 16 42U.S.C. what § claim, plaintiff rights. prevail must show: on such a civil In order to federal (2) depri statutory right; that the deprivation a federal constitutional Tay acting of state law". Parratt v. "under color was caused someone vation Sintra, (1981); 527, 535, lor, see also 68 L. Ed. 2d 101 S. Ct. Seattle, 1, 12, v. denied sub nom. Robinson 829 P.2d cert. Inc. Seattle,_U.S._, S. Ct. 676

623 37). such, 14 Brief of at As (citing Respondent, City the HPO was believed from a protected takings challenge the insulation doctrine. claim, this the Sintra court transformed the reviewing Orion-Presbytery analysis. While it cited initially for the are to tak- proposition regulations only subject when enhance a ings challenges they "actually publicly [] Sintra, owned right property", Wn.2d at (quoting 329-30), Wn.2d at it later the Orion- replaced Presbytery rule with the notion that regulations may be sub- ject to when takings challenges they "enhance inter- public ests.(Italics mine.) Sintra, 119 Wn.2d at 15. As described above, the difference between owned "enhancing publicly right property" "enhancing a interest" is tre- mendous, the Sintra court yet no indication that gave any much one, less change, significant had occurred. The Sintra court then that, its under expressed opinion test, its new the HPO was a measure benefit-producing rather than a harm-preventing Sintra, measure. 119 Wn.2d court, however, 15-16.17The did not rest this deter- upon Instead, mination. it noted that since the HPO had already been held to be an invalid tax in San Telmo Assocs. v. Seattle, (1987), 735 P.2d 673 the HPO was not a valid police power regulation at all. It stated: Certainly, regulatory scheme which is later determined to be a tax surpasses the proper scope City's We, of the police power. therefore, determine, can law, as a matter of that the HPO was

not a proper City's exercise of the police power, Presby- tery's requirements threshold have been met here. (Footnote omitted.) 119 Thus, Wn.2d at 16. since the court determined that the HPO's inherent met the re- invalidity quirements doctrine, insulation it was unnecessary aspect opinion provides example 17This of the Sintra an excellent manipulability There, harm/benefit distinction. the court stated that the — producing" sought prevented HPO was "benefit people because the "harm to be — standing go Sintra, on the street comer with nowhere to was exceeded." why building housing Wn.2d at 15-16. It is difficult to see new does not serve to prevent "people standing the harm of on the street comer". version original to decide whether to apply for the court or its new version.18 of the doctrine 34, Seattle, The court's decision in Robinson 598, denied,_U.S._, 121 L. Ed. 2d P.2d cert. 830 There, class of landown was similar. a 42 U.S.C. under rights damages § ers civil sought the for the enforcement of City's of Seattle against City Sintra, Seattle, HPO in Inc. v. Wn.2d same at issue Seattle,_ Robinson v. 829 P.2d cert. denied sub nom. S. Ct. 676 As U.S._, takings civil claims were Sintra, rights of the gravamen due and of substantive without violations just compensation at 48. process. state the Orion-Pres- Robinson, the court did not even court, did form, nor, like the Sintra original test its

bytery Instead, it simply a had taken change place. it indicate that mere harm beyond which regulations "go[] asserted that a provide public owner require prevention court, The Robinson like 119 Wn.2d at 50. benefit". court, that the HPO sur- opinion Sintra then expressed it "required prop- mounted the insulation doctrine because 119 Wn.2d at 52. benefit". erty owners to provide observations, the Robinson court did these initial Despite Instead, the court taking. that there had been a not conclude a sufficient facial had failed to make held that the Robinsons HPO, had not shown that they to the in that takings challenge use of economically any "denied all viable had omitted.) (Italics Robinson, 119 Wn.2d at regulated property." had made a facial only takings 53-54. Since the Robinsons had failed to HPO, adequately support to the and challenge of whether their claim failed challenge, regardless that the new version was insulation doctrine or Orion-Presbytery Sintra, with of the adoption As was the case employed. admittedly point. unclear on this in Sintra is 18The court's decision invalidity apparently the HPO as a tax was that Sintra court believed power regulation. benefit-producing police synonymous with its character as regulations police power Sintra, benefit-producing Since 119 Wn.2d at 15-16. invalid, reading decision is that it per sensible of the Sintra not se the most are simply by noting an the HPO was threshold surmounted power. police invalid exercise new version of the insulation doctrine was not necessary the decision.19

Our decisions in Sintra Robinson, like our decision case, this thus do not represent binding statements of the appropriate scope insulation doctrine.

Ill The majority's unnecessary and nonbinding reformulation insulation doctrine Orion-Presbytery an represents trend in alarming our law. While the majority's state- dicta, ments are only this trend should not be allowed to continue and perhaps crystallize into settled law without comment. Since I believe the changes endorsed by the major- are ity unwise and law, our case I unsupported concur only in the of the court opinion the Act violates substantive due process the judgment of the court that the Act has not worked a taking.

Reconsideration denied September

[No. 57920-2. En Banc. 1993.] June Margola City Appellants, v. The Associates, al, et Respondent. Seattle, might argued analyses 19It be challenges the elaborate which we actually require analytic have progression, established our cases a linear rather approach suggested by my than view, the more limited discussion. Under question challenge Robinson, order to reach the necessary facial it was for dispose is, however, the court commonplace to first of the insulation doctrine. It ignore courts to dispositive issues, extraneous issues in order to decide cases on may analytically prior even when the dispositive extraneous issues he to the ones. determining holding particular case, therefore, only of a we need look dispositive those issues.

Case Details

Case Name: Guimont v. Clarke

Court Name: Washington Supreme Court

Date Published: Jun 10, 1993

Citation: 854 P.2d 1

Docket Number: 57765-0

Court Abbreviation: Wash.