The Path Out of Washington's Takings Quagmire: the Case for Adopting the Federal Takings Analysis

• Publication year: 2021

THE PATH OUT OF WASHINGTON'S TAKINGS QUAGMIRE: THE CASE FOR ADOPTING THE FEDERAL TAKINGS ANALYSIS

Roger D. Wynne(fn*)

Abstract: A quagmire awaits anyone attempting to understand the analysis Washington courts employ to determine whether government action constitutes a "taking" of property for which compensation is due under the U.S. Constitution. The Washington takings analysis is complex and confounding, especially when compared to the relatively straightforward takings analysis established by the U.S. Supreme Court. This Article argues that the Washington State Supreme Court should reject the Washington takings analysis and adopt the federal analysis. Comparing the federal and Washington analyses underscores how, as a matter of form, the Washington analysis easily stymies those who must work with it. Substantively, the Washington analysis is unfounded on three key levels: (1) the existence of differences between the two analyses fatally undermines the Washington analysis; (2) the nature of those differences renders the Washington analysis constitutionally insufficient by lowering the floor of protection that property owners enjoy under the federal analysis; and (3) the differences do not enhance the federal analysis. Rejecting the Washington takings analysis in favor of the federal analysis would be consistent with the doctrine of stare decisis because the Washington State Supreme Court originally intended to harmonize Washington and federal takings law, even though the Court failed to implement that intent. When embracing the federal takings analysis, the Court should avoid mischaracterizations of the federal takings analysis and the temptation to justify the Washington analysis on independent state constitutional grounds for the first time.

INTRODUCTION.................................................................................127

I. THE WASHINGTON TAKINGS ANALYSIS IS MORE COMPLEX AND CONFOUNDING THAN THE FEDERAL TAKINGS ANALYSIS..................................................................129

A.The Federal Takings Analysis Is Relatively Simple and Omits Due Process Considerations.......................................129

B.The Washington Takings Analysis Remains a Quagmire for Those Who Must Discern and Apply It..........................134

1. The Complex Washington Takings Analysis Must Be Coaxed from Disjointed Case Law......................134

2. Federal Courts, the Washington Court of Appeals, and Attorneys Struggle to Apply the Washington Takings Analysis.......................................................139

II.THE WASHINGTON TAKINGS ANALYSIS IS UNFOUNDED...............................................................................146

A.Differences Between the Washington and Federal Takings Analyses Fatally Undermine the Washington Analysis................................................................................146

B.The Washington Takings Analysis Grew from an Illusory Premise into a Constitutionally Insufficient Substitute for the Federal Analysis..............................................................151

1. The Washington Analysis Is Structured on a Police-Power-or-Eminent-Domain Dichotomy and a Desire to Enhance Protections for Local Governments.............................................................151

2. The Police-Power-or-Eminent-Domain Dichotomy Is Illusory................................................156

3. The Washington Analysis Is Constitutionally Insufficient Because, by Design, It Hampers Property Owners' Ability to Press Takings Claims .. 160

C.Each of the Unique Elements of the Washington Takings Analysis Offers Little Value or Has Been Discredited by the U.S. Supreme Court........................................................163

1. The "Fundamental Attribute" Element Stems from an Incorrect Prediction About the Direction of Federal Law, and Can Be Subsumed into the Penn Central Factors..........................................................164

2. The "Seeks Less to Prevent a Harm than Provide a Public Benefit" Element Is Unworkable and Premised on Due Process Law, Not Takings Law .... 166

3. The "Substantially Advances a Legitimate State Interest" Element Has Been Rejected by the U.S. Supreme Court...........................................................168

III. THE PATH OUT OF THE QUAGMIRE: ADOPT THE FEDERAL ANALYSIS..................................................................169

A.The Washington State Supreme Court Can Reverse Course While Remaining Consistent with the Doctrine of Stare Decisis and the Court's Original Intent to Track Federal Law..........................................................................169

B.Adopting the Federal Takings Analysis Would Mean Adhering to the Language of the Federal Analysis..............170 a "Balancing Test".....................................................170

1. The Penn Central Factors Cannot Be Reduced to

2. The Federal Analysis Cannot Be Summarized as an Assessment of Whether a Burden Should, "In All Fairness and Justice," Be Borne by the Public as a Whole.................................................................172

3. Other Misstatements of the Federal Elements Are Needlessly Confusing................................................176

C. Attempting to Justify the Washington Takings Analysis on Independent State Constitutional Grounds Would Be Unwarranted Historically and Legally..................................177

1. The Washington State Supreme Court Never Performed a Gunwall Analysis to Justify Its Unique Takings Analysis..........................................177

2. The Gunwall Factors, Even if Applied to Washington's Takings Clause, Would Likely Not Justify the Washington Takings Analysis.................182

CONCLUSION.....................................................................................184

INTRODUCTION

In 1990, the Washington State Supreme Court breathed a sigh of relief. Looking back, the Court lamented the "quagmire" into which Washington and federal courts had wandered when analyzing claims that government regulation constituted a taking of private property for which compensation was due:(fn1)The "tests" for over-regulation have until recently proved somewhat of a quagmire of constitutional theory vacillating between substantive due process and "takings" theory. Both this court and the United States Supreme Court have in the past struggled with the difficult determination of where a mere regulation ends and a "taking" commences.(fn2)

Looking ahead, however, the Court expressed confidence that it had found a path out of the quagmire through a comprehensive takings analysis harmonizing Washington and federal takings law.(fn3) Although the Court refined this analysis through 1993, the Court never questioned its 1990 pronouncement that its takings analysis delivered Washington from the takings quagmire.

The Court's confidence has proved unwarranted. Washington remains mired in a cumbersome, confusing, and constitutionally suspect takings analysis. The Court should extricate Washington from this situation by adopting the federal takings analysis.

Part I of this Article compares the straightforward federal takings analysis with Washington's complex and disjointed takings analysis. Part II explains how the Washington takings analysis is unfounded on three key levels: (1) it is fatally undermined by the fact that it differs from the analysis established by the U.S. Supreme Court; (2) the nature of those differences renders the Washington analysis constitutionally insufficient by lowering the floor of protection that property owners enjoy under the federal takings analysis; and (3) the differences do not improve the federal analysis. Part III demonstrates how overruling Washington's takings case law would be consistent with the doctrine of stare decisis, and cautions the Washington State Supreme Court to avoid mischaracterizations of the federal takings analysis and the temptation to justify the Washington analysis on independent state constitutional grounds for the first time.(fn4)

I. THE WASHINGTON TAKINGS ANALYSIS IS MORE COMPLEX AND CONFOUNDING THAN THE FEDERAL TAKINGS ANALYSIS

Stark differences exist between the analyses federal and Washington courts apply to a takings claim brought under the U.S. Constitution. Federal courts employ a straightforward, three-part analysis. Washington courts, by contrast, use the three parts of the federal takings analysis, plus three unique elements arranged in a complex series of questions and sub-questions. Washington takings case law is confusing and often difficult to reconcile. The result is a quagmire that vexes attorneys and judges alike.

A. The Federal Takings Analysis Is Relatively Simple and Omits Due Process Considerations

Key to understanding the evolution and current form of the federal takings analysis is the distinction between the federal Due Process and Takings Clauses. The Due Process Clause that regulates state action is in the Fourteenth Amendment to the U.S. Constitution and provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law."(fn5) The constitutional remedy for government action that violates this prohibition is the invalidation of the action, not the payment of compensation.(fn6) By...