CHONG and MARILYN YIM, KELLY LYLES, BETH BYLUND, CNA APARTMENTS, LLC, and EILEEN, LLC, Respondents,
CITY OF SEATTLE, Appellant.
case concerns the constitutionality of Seattle's
"first-in-time rule" (FIT rule), Seattle Municipal
Code (SMC) 14.08.050. Broadly speaking, the FIT rule provides
that Seattle landlords seeking to fill vacant tenancies must
provide notice of their rental criteria, screen all completed
applications in chronological order, and offer tenancy to the
first qualified applicant, subject to certain exceptions. The
plaintiffs are Seattle landlords, who claim the FIT rule
facially violates their state constitutional rights.
cross motions for summary judgment, the trial court ruled
that the FIT rule is unconstitutional on its face because (1)
the FIT rule facially effects a per se regulatory taking for
private use in violation of article I, section 16, (2) the
FIT rule facially infringes on the plaintiffs'
substantive due process rights in violation of article I,
section 3, and (3) the FIT rule facially infringes on the
plaintiffs' free speech rights in violation of article I,
section 5. Wash. Const, art. I, §§ 16, 3, 5.
Defendant city of Seattle (City) appealed. We granted direct
review and now reverse.
AND PROCEDURAL BACKGROUND
September 2014, Seattle's mayor and the Seattle City
Council appointed a committee "to evaluate potential
strategies to make Seattle more affordable, equitable, and
inclusive." Clerk's Papers (CP) at 319. The
committee recommended "a multi-prong approach of bold
and innovative solutions." Id. After
considering the committee's recommendations, the Seattle
City Council amended Seattle's Open Housing Ordinance,
ch. 14.08 SMC. These amendments included adoption of the FIT
rule provides that when a Seattle property owner seeks to
fill a tenancy, the owner must first "provide notice to
a prospective occupant" of "the criteria the owner
will use to screen prospective occupants and the minimum
threshold for each criterion," as well as "all
information, documentation, and other submissions necessary
for the owner to conduct screening." SMC
l4.08.050(A)(1)(a)-(b). Next, the property owner must
"note the date and time of when the owner receives a
completed rental application" and "screen completed
rental applications in chronological order."
Id. at (A)(2)-(3). "If, after conducting the
screening, the owner needs more information than was stated
in the notice," the owner must "notify the
prospective occupant in writing, by phone, or in person of
what additional information is needed." Id. at
(A)(3). Finally, the property owner must "offer tenancy
of the available unit to the first prospective occupant
meeting all the screening criteria necessary for approval of
the application." Id. at (A)(4). The first
qualified applicant has 48 hours in which to accept the offer
of tenancy. Id. If the applicant does not accept,
"the owner shall review the next completed rental
application in chronological order until a prospective
occupant accepts the owner's offer of tenancy."
are a number of exceptions to these general procedures. No
part of the FIT rule applies "to an accessory dwelling
unit or detached accessory dwelling unit wherein the owner or
person entitled to possession thereof maintains a permanent
residence, home or abode on the same lot." Id.
at (F). In addition, an owner does not have to offer tenancy
to the first qualified applicant if the owner "is
legally obligated to" or "voluntarily agrees to set
aside the available unit to serve specific vulnerable
populations." Id. at (A)(4)(a)-(b). The FIT
rule also contains procedures for potential occupants with
disabilities to seek "additional time to submit a
complete rental application because of the need to ensure
meaningful access to the application." Id. at
rule became effective on January 1, 2017, although compliance
was not required until July 1, 2017. Id. at (A),
(E). On August 16, 2017, the plaintiffs filed a first amended
complaint, "seeking a declaration that the City's
[FIT] rule . . . violates the Takings, Due Process, and Free
Speech Clauses of the Washington State Constitution, and also
seeking a permanent injunction forbidding the City from
enforcing its unconstitutional rule." CP at 19. The
plaintiffs challenge the FIT rule only "on its
face," not as applied. Id. at 30, 33.
parties filed cross motions for summary judgment based on a
statement of stipulated facts and a stipulated record. The
trial court ruled in favor of the plaintiffs on each of their
claims, concluding that the FIT rule facially violates
article I, section 16 (the takings clause), section 3 (the
due process clause), and section 5 (the free speech clause)
of the Washington State Constitution. The City appealed, and
we granted direct review. Order, No. 95813-1 (Wash. Nov. 28,
the FIT rule facially effect a regulatory taking for purposes
of article I, section 16?
the FIT rule does facially effect a regulatory taking, is it
for private use in violation of article I, section 16?
the FIT rule facially violate the plaintiffs' article I,
section 3 right to substantive due process?
the FIT rule facially violate the plaintiffs' article I,
section 5 right to free speech?
case presents two important questions of state constitutional
law that will have consequences far beyond the particular
claims at issue here. First, we must define when a law
regulating the use of property crosses the line into a
"regulatory taking" for purposes of article I,
section 16. Second, we must determine the standard of review
that applies to article I, section 3 substantive due process
challenges to laws regulating the use of property.
the first issue, this court has always attempted to define
regulatory takings consistently with federal courts applying
the takings clause of the Fifth Amendment. U.S. CONST, amend.
V. The federal definition of regulatory takings has been
substantially clarified since we last considered the issue,
such that the "legal underpinnings of our precedent have
changed or disappeared altogether." W.G. Clark
Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters,
180 Wn.2d 54, 66, 322 P.3d 1207 (2014). It has not been shown
that we should adopt a Washington-specific definition as a
matter of independent state law at this time, and we
therefore adopt the definition of regulatory takings set
forth by the United States Supreme Court in Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 125 S.Ct. 2074, 161
L.Ed.2d 876 (2005), as discussed in more detail below. The
following precedent is disavowed to the extent that it
defines regulatory takings in a manner that is inconsistent
with Chevron U.S.A.: Orion Corp. v. State, 109 Wn.2d
621, 747 P.2d 1062 (1987); Presbytery of Seattle v. King
County, 114 Wn.2d 320, 787 P.2d 907 (1990); Sintra,
Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765
(1992); Robinson v. City of Seattle, 119 Wn.2d 34,
830 P.2d 318 (1992); Guimont v. Clarke, 121 Wn.2d
586, 854 P.2d 1 (1993); Margola Associates v. City of
Seattle, 121 Wn.2d 625, 854 P.2d 23 (1993); and
Manufactured Housing Communities of Washington v.
State, 142 Wn.2d 347, 13 P.3d 183 (2000) (plurality
the second issue, as analyzed in more detail in our opinion
for Chong Yim v. City of Seattle, No. 96817-9 (Wash.
Nov. 14, 2019) (Jim II), this court has always
attempted to apply a standard of review to article I, section
3 substantive due process claims that is consistent with the
standard used by federal courts applying the due process
clauses of the Fifth and Fourteenth Amendments to the United
States Constitution. As with defining regulatory takings, it
has not been shown that we should depart from federal law at
this time, and we therefore apply rational basis review to
the plaintiffs' substantive due process challenge to the
to the specific claims presented in this case, the
constitutionality of the FIT rule is a question of law
reviewed de novo. Amunrud v. Bd. of Appeals, 158
Wn.2d 208, 215, 143 P.3d 571 (2006). The plaintiffs'
facial takings and substantive due process claims cannot
succeed unless the plaintiffs show that "no set of
circumstances exists in which [the FIT rule], as currently
written, can be constitutionally applied." City of
Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875
(2004). They cannot meet that burden on the record presented,
while the City has met its burden of justifying the FIT rule
for purposes of the plaintiffs' facial free speech claim.
We therefore reverse and remand with instructions to grant
the City's motion for summary judgment.
FIT rule does not facially effect a regulatory taking
takings clause of the Fifth Amendment provides, "[N]or
shall private property be taken for public use, without just
compensation." U.S. CONST, amend. V. Likewise, article
I, section 16 provides, "No private property shall be
taken or damaged for public or private use without just
compensation having been first made." WASH. CONST, art.
I, § 16. Both the federal and state takings clauses
allow for "[c]laims of inverse condemnation by excessive
regulation," otherwise known as "regulatory
takings" claims. Orion Corp., 109 Wn.2d at 642.
takings claims are based on the premise that "while
property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking." Pa.
Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67
L.Ed. 322 (1922). When a regulation goes too far, it becomes
"a de facto exercise of eminent domain," even
though the private individual still actually owns and
possesses the property. Orion Corp., 109 Wn.2d at
645. Such regulatory takings, like traditional exercises of
eminent domain, require either just compensation (if the
property is taken for public use) or invalidation of the law
(if the property is taken for private use). Mfd.
Hous., 142 Wn.2d at 362.
takings may be either "per se" or
"partial." A per se regulatory taking is found
where a regulation's impact is necessarily so onerous
that the regulation's mere existence is, "from the
landowner's point of view, the equivalent of a physical
appropriation." Lucas v. S.C Coastal Council,
505 U.S. 1003, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).
As a matter of federal law, such categorical treatment is
appropriate for only "two relatively narrow
categories" of regulations-regulations that
"require[ ] an owner to suffer a permanent physical
invasion of her property" and "regulations that
completely deprive an owner of 'all economically
beneficial us[e]' of her property." Chevron
U.S.A., 544 U.S. at 538 (second alteration in original)
(quoting Lucas, 505 U.S. at 1019). All other
regulations are susceptible of partial regulatory takings
claims, which federal courts decide based on a multifactor
test (the Penn Central factors) applied on a
case-by-case basis. Id. at 538-39 (citing Penn
Cent. Transp. Co. v. New York City, 438 U.S. 104, 124,
98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)).
plaintiffs here claim the FIT rule facially effects a per se
regulatory taking, but they do not contend that it fits into
either of the per se categories recognized by federal courts.
Instead, they contend that Washington courts recognize
another category of per se regulatory takings, which includes
any regulation that "destroys one or more of the
fundamental attributes of ownership (the right to possess,
exclude others and to dispose of property)." Mfd.
Hous., 142 Wn.2d at 355. The plaintiffs argue that the
FIT rule falls into this per se category "because it
strips landlords of a fundamental attribute of property
ownership-the right to choose to whom one will rent their
property." Resp'ts' Br. at 1.
clarify that none of our regulatory takings cases have
purported to define regulatory takings (either per se or
partial) as a matter of independent state law. Instead, we
have always attempted to discern and apply the federal
definition of regulatory takings. Since we last attempted to
do so, the federal definition has been clarified
substantially and is now clearly inconsistent with the
definitions set forth in our precedent. Thus, the legal
underpinnings of our precedent have disappeared, and it has
not been shown that we should now adopt a Washington-specific
definition of regulatory takings as a matter of independent
we disavow our precedent, adopt the federal definition of
regulatory takings, and hold that the plaintiffs cannot show
the FIT rule facially meets this definition on the record
presented. We express no opinion as to whether the FIT rule
effects a regulatory taking as applied to any particular
have never defined regulatory takings as a matter of
independent state law
plaintiffs emphasize that their takings claim is based on the
Washington State Constitution and contend that "[t]he
federal approach to takings therefore does not offer a
relevant comparison because this Court can interpret its own
state constitution as it sees fit-so long as its
interpretation does not go below the floor of protection
guaranteed by the Federal Constitution." Id. at
20-21. It is certainly true that we have the authority to
interpret article I, section 16 independently of the Fifth
Amendment's takings clause. However, it is incorrect to
suggest that we have already done so for purposes of defining
regulatory takings. To the contrary, for over 30 years, we
have attempted to define regulatory takings in a manner that
is consistent with federal law. Unfortunately, for many
years, federal regulatory takings cases were complex and
occasionally inconsistent, making our task extremely
challenging and giving the inaccurate impression that this
court was attempting to set forth a Washington-specific
doctrine based on independent state law.
pre-Manufactured Housing cases did not define
regulatory takings based on independent state law
we have never defined regulatory takings based on independent
state law, our precedent may appear to have done so. See,
e.g., Laurel Park Cmty., LLC v. City of
Tumwater, 698 F.3d 1180, 1191-93 (9th Cir. 2012)
(analyzing state regulatory takings claim separately from
federal regulatory takings claim); Lemire v. Dep't of
Ecology, 178 Wn.2d 227, 242, 309 P.3d 395 (2013)
("The parties and amici strenuously debate the framework
on which this court should rest a taking analysis, including
whether and to what extent our state constitutional takings
provision may offer greater protection than its federal
counterpart."); Roger D. Wynne, The Path out of
Washington's Takings Quagmire: The Case for Adopting
the Federal Takings Analysis, 86 WASH. L. Rev. 125,
136 (2011) (pointing to "three unique elements" of
Washington takings law). Regrettably, this court has added to
the confusion by occasionally characterizing our cases as
setting forth a "state 'regulatory takings'
doctrine." Robinson, 119 Wn.2d at 47. We
resolve this confusion now.
reason our precedent appears unusual is because this court
was attempting to set forth "a doctrinally consistent,
definitive test" for regulatory takings, which "has
proved an elusive goal, sometimes characterized as 'the
lawyer's equivalent of the physicist's hunt for the
quark.'" Orion Corp., 109 Wn.2d at 645
(internal quotation marks omitted) (quoting Williamson
County Reg'l Planning Comm'n v. Hamilton Bank,473 U.S. 172, 199 n.17, 105 S.Ct. 3108, 87 L.Ed.2d 126
(1985), overruled in part by Knick v. Township of
Scott, 588 U.S.___, 139 S.Ct. 2162, 204 L.Ed.2d 558
(2019)). It should not be surprising that our pursuit of such
an elusive goal left this court as something of an outlier.
However, our attempts to articulate a test ...