Regulatory Taking Doctrine in Washington: Now You See It, Now You Don't

Publication year1989
CitationVol. 12 No. 03



Regulatory Taking Doctrine in Washington: Now You See It, Now You Don't

Richard L. Settle(fn*)

I. Introduction

Regulatory taking doctrine is the most perplexing area of American land use law. Despite scholarly obsession and frequent litigation, the most fundamental questions about regulatory takings(fn1) remain unresolved. Are the taking clauses of federal and state constitutions(fn2) even applicable to police power regulation of land use and development? If so, what limitations on police power regulation do the taking clauses impose? And what are the legal consequences of transgressions? To call the collective judicial responses to these questions doctrine is an exaggeration. Ad hocery is a more accurate characterization.(fn3) There is nothing even approaching a clearly articulated system of principles governing the resolution of regulatory taking claims,(fn4) as the United States Supreme Court routinely concedes.(fn5) [T]his Court, quite simply, has been unable to develop any "set formula" for deterniining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. . . . Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely "upon the particular circumstances [in that] case."(fn6)

Until its decision in First English Evangelical Lutheran Church v. Los Angeles County,(fn7) the Supreme Court had refrained from explicitly deciding the threshold question of whether the burdens imposed on private property by police power measures were constitutionally limited by the federal taking clause, itself, in addition to substantive due process.(fn8) Having decided that both limitations apply, the Court, however, has offered no explanation of their relationship and respective requirements.(fn9)

Within a recent two-month period, the Washington Supreme Court issued decisions in two major regulatory taking cases, Orion Corporation v. State,(fn10) and Allingham v. City of Seattle.(fn11) In both cases, land use regulations were challenged on the basis of the taking clauses of the federal and state constitutions. In the Orion litigation, the owners of a large tract of Puget Sound tidelands asserted a constitutional right to compensation for a taking of property by state and local regulations restricting use and development of the tidelands. In Allingham, a group of Seattle landowners sought invalidation of a city ordinance restricting development of land within designated "greenbelt preserves."

In the Orion decision, the Washington Supreme Court, venturing where other courts had feared to go, began the painful process of developing coherent legal doctrine to supplant vague or nonexistent principles and intuitive determinations.(fn12) The purpose of the court's elaborate exposition of the law and policy of regulatory takings seemed clear-to establish a mode of analysis and decisional principles that would provide significant guidance in an area of legendary uncertainty. Of course, Orion was not expected to be the last word. Its principles would be refined, explained, and perhaps revised by future decisions. But it was regarded as a major initiative that clearly implied a judicial commitment to continue the process of developing cogent doctrine and a promise that resolution of regulatory taking claims would become increasingly predictable.(fn13) Landowners and regulatory policymakers would sleep better.

Orion's ink was scarcely dry when the prospect of coherent doctrine was dashed by Allingham. Allingham was as cryptic as Orion was enlightening. Allingham ignored Orion and the elaborate analytical framework the court had so painstakingly established.(fn14) The only decisional principle clearly articulated in Allingham was directly contrary to well-established state and federal law.(fn15) As shockingly disappointing as Allingham was, the land use law community assumed that its shortcomings, no doubt, resulted from a mechanical glitch in the court's mysterious opinion writing and review processes or from a breakdown in communication among the justices; reconsideration would eliminate the dissonance and restore Orion's promise of coherent regulatory taking doctrine.(fn16) Briefs in support of a motion for reconsideration were filed,(fn17) arguing primarily for doctrinal consistency rather than a different result. Surprisingly, the court denied the City's motion for reconsideration and issued a terse "Order Changing Opinion," adding a three-sentence explanatory footnote that, while citing and apparently reaffirming Orion, raised more questions than it resolved.(fn18)

After setting the scene with a summary of federal and Washington State regulatory taking law,(fn19) this Article analyzes and critically assesses Orion's ambitious doctrinal initiative in light of the Allingham enigma(fn20) and charts a tentative course toward more coherent regulatory taking doctrine.(fn21) A pervasive and hopeful theme of the Article is that a latent, largely unarticulated or misstated doctrine exists, just waiting for explicit judicial recognition, that would consistently explain, and even predict, most of the regulatory taking decisions.

II. An Historical Synopsis of Regulatory Taking Law

The starting point in the exploration of regulatory taking jurisprudence is the fifth amendment to the United States Constitution, which provides in part: "nor shall private property be taken for a public use without just compensation."(fn22) Although the fifth amendment applies only to the federal government, the taking limitation long has been held applicable to state and local governments through the due process conduit of the fourteenth amendment.(fn23) In addition, all of the state constitutions contain identical or functionally equivalent provisions.(fn24) The federal taking clause, as interpreted by the Supreme Court, establishes mandatory minimum limitations on state and local governments that state constitutions, as interpreted by the state courts, may exceed. Some state taking provisions have been held to restrict state action more than their federal counterpart.(fn25) The Washington State taking clause provides that "[n]o private property shall be taken or damaged for public or private use without just compensation having first been made."(fn26) Although the words "or damaged" arguably make Washington's provision more restrictive than the federal taking clause, no Washington decision has attached significance to the difference in language in the context of police power regulation.(fn27)

As the words of the taking clause plainly indicate, and as constitutional history confirms, the limitation was aimed at government expropriation of property.(fn28) The taking clause, while acknowledging the inherent governmental power of eminent domain, limits its exercise through the requirements of "public use" and "just compensation."(fn29) Judicial interpretations of these constitutional requirements, in the context of government acquisition of property interests for various public and quasi-public enterprises, constitute a well-established and generally uncontroversial body of doctrine-the law of "eminent domain" or "condemnation."(fn30)

A branch of this doctrine, commonly called "inverse condemnation," recognizes the applicability of the constitutional requirements to situations in which government actions, usually physically invasive, inadvertently or presumptuously usurp property interests that should have been properly acquired.(fn31) Public flooding of privately owned land(fn32) and unreasonably disruptive government-sponsored aircraft overflights(fn33) are examples. The condemnation is "inverse" because judicial determination of public use and just compensation follows rather than precedes the government invasion.

Late in the nineteenth century, landowners chafing under burdensome state or local regulation began to argue that severe limitations on their use of land were takings and, hence, not constitutionally permissible without just compensation. Even though such cases involved no government acquisition or invasions of property, the courts were urged to focus on effect rather than cause, and to characterize severe restrictions on use, coupled with drastic reductions in property value, as takings. Thus, in the 1887 case of Mugler v. Kansas,(fn34) brewery owners used a regulatory taking theory to challenge a Kansas statute prohibiting the manufacture of intoxicating liquors and thereby greatly diminishing the value of their property. The Supreme Court categorically rejected the theory as inapplicable to police power regulation. According to the Court, constitutional limitations on takings of property pertained only to government acquisition or physical invasion of property under the power of eminent domain:

[T]he present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be...

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