By the Honorable Richard B. Sanders

While the United States Constitution and to an even greater extent, the Washington Constitution, recognize many rights the individual may assert against unwanted governmental intrusion, neither affords property any rights whatsoever:

Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right . . . a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.

Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 1122, 31 L. Ed. 2d 424 (1972). That every person has a "civil right" to his or her property secured by the Bill of Rights as well as the Washington Declaration of Rights is not debatable. See Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 2320 n.8, 129 L. Ed. 2d 304 (1994) ("we see no reason why the takings clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to the status of a poor relation . . . .").

To properly conceptualize the role of "property rights," we must step into the shoes of the founders to understand their perspective:

"Rights were owned by the people, as individuals, and never dichotomized into personal and property. It was to the contrary. The principle established by the Magna Charta and, thus, basic to the common law and later the constitution was the identification of liberty and property. Ownership of property was evidence of liberty. In solemn ceremony, it was their decree that neither the King nor government could take property except per legum terrae. The reach was not procedural but substantive. Koch in his writings used the phrase interchangeably with "due process of law;" and, in this form, the concept was included in the Fifth Amendment to the United States Constitution. Life, liberty, and property comprised an invulnerable trilogy . . . ."

Sinaloa Lake Owners Ass’n v. City of Simi Valley, 864 F.2d 1475, 1485 n.8 (9th Cir. 1989).

The English philosopher John Locke, whose writings dominated American colonial thought, viewed "property" as the sin qua non of what we today call "individual rights." To Locke, and the founders, property had a much broader meaning than we commonly ascribe to it today. Locke wrote that man’s property in his person is foremost among his rights to property. Madison argued that one not only had a property interest in his land, merchandise, and money but also in the "‘safety and liberty in his person . . . .’" State v. Valentine, __ Wn.2d __, 935 P.2d 1294, 1318 (1997) (Sanders, J. dissenting).

Indeed, according to the founders of our republic, as well as the original drafters of the Washington State Constitution, the purpose of legitimate governmental authority is to protect individual rights in the broadest sense. This is eloquently expressed in the Declaration of Independence which posits "That to secure these rights Governments are instituted among men . . . ." as well as article I, section 1, of the Washington Constitution which simply but eloquently provides: ". . . governments . . . are established to protect and maintain individual rights."

The first point is while there is no such thing as "property rights" per se, both the federal and state constitutions recognize the interest of the individual to freely conduct his affairs predominates over contrary governmental actions in many situations. Many of the constitutional clauses most protective of an individual’s interest in property do not even mention property by name but are expressions of more fundamental principles which include but are certainly not limited to an individual’s interest in his property.

It is therefore my thesis:

(1) Principles regarding "individual rights" should be applied consistently across the board;

(2) What goes around, comes around, in the sense that general principles may be strengthened or weakened depending upon how they are applied in specific cases.

Therefore it is in the interest of those who seek to strengthen "individual rights" in general to strengthen them in every particular application—with the hope and understanding that a rising tide will float all boats. Of course the opposite is true as well (so as to not offend the "anti-righters.")

Before proceeding to a more specific discussion of the constitutional principles at work let us reflect upon some property principles which have, or should have, a broader application to nonproperty subjects as well as some nonproperty principles which should perhaps be applied to property interests as well.

Two examples come to mind illustrated by recent decisions of the Washington and United States Supreme Court: State v. Valentine, ____ Wn.2d ____, 935 P.2d 1294 (1997) and Planned Parenthood Of Southeastern Pennsylvania v. Casey, 510 U.S. 1309, 114 S. Ct. 909, 127 L. Ed. 2d 352 (1994).

Valentine was decided on May 1, 1997 and is barely in the advance sheets. This case concerns a black Spokane motorist who was pulled over for an illegal lane change for which he was unlawfully arrested. Valentine forcibly resisted the unlawful arrest and then (or before) was brutally beaten by the arresting officers. In Washington one cannot be arrested for a traffic infraction. Notwithstanding he was eventually charged with assaulting an officer and went to trial without benefit of his proposed jury instruction which set forth his common law right to forcibly resist an unlawful arrest. Eventually the case made its way to the State Supreme Court which affirmed the conviction (7 to 2), overruling 300 years of common law precedent to the contrary in the process.

Of particular interest is the court would recognize and enforce Valentine’s right to use force to protect his property but would deny him a similar right to protect his person. Compare RCW 9A.16.020(3) with Valentine, 935 P.2d at 1317.

The dissent attempted to point out that this was a gross contradiction. Under classical theory the most important property a man has is his own person, and it is a violation of the principle, and inconsistent, to hold that he may not use force to protect his person while he may use force to protect his real property or chattel.

Planned Parenthood Of Southeastern Pennsylvania v. Casey, 510 U.S. 1309, 114 S. Ct. 909, 127 L. Ed. 2d 352 (1994) was a follow-on case to Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and generally considers the question whether or not a woman is denied her liberty without due process of law where a state undertakes to limit or eliminate her choice of abortion. Casey, like its predecessor, held under a substantive due process analysis due process is violated in a substantive sense when the government attempts to prohibit or regulate such activity. The due process clause of the 14th Amendment simply provides "nor shall any state deprive any person of life, liberty, or property without due process of law." Although it may be fairly said that the application of the clause may vary between particular factual circumstances, it must be recognized that the principle is stated in such a way that it applies equally to life, liberty, and property. It would seem, therefore, at least the methodology of analysis under the due process clause should be consistent regardless of its factual application.

For example, the ACLU recently argued in a case involving the medical use of marijuana that the principle set forth in Roe and Casey should equally apply to the interest of an individual to smoke marijuana, at least when same is for medicinal purposes. Property law is replete with examples of alleged due process violations committed by the government with respect to the individual right to own and/or use his property. In our state, for example, there are a number of Supreme Court decisions which find various governmental actions violated the substantive due process rights of a property owner because they were "unduly oppressive."

At their heart do not these "property" decisions apply the same principle the U.S. Supreme Court identified in Casey or Roe? Are the principles of Roe and Casey applicable to the medical marijuana case?

I suggest that every application of a constitutional principle helps define the principle insofar as it will be applied to every other application.

Property Rights Under the U.S. Constitution

Limited Government

The first principle of any right which the citizen may hold against, or notwithstanding, the government is the limited nature of the original delegation of authority. Alexander Hamilton argued in The Federalist No. 84 that an additional Bill of Rights was entirely unnecessary as the Constitution in its original form was in fact a "Bill of Rights" in the sense that if the federal government were held to its delegated powers, the liberties of the citizens would not be threatened. Limited government, in Hamilton’s view, was the first protection of individual rights, the rights of a person to own and control his property being firmly amongst them.

Impair Obligation of Contracts

The constitution of 1787 (Art. I, § 10) also spoke to property in the sense that it affirmatively prohibited any state from impairing the obligation of contracts. This was most recently articulated by the Washington State Supreme Court in King County v. Taxpayers of King County, ___ Wn.2d ___, ___ P.2d ___ (June 13, 1997), which referenced the contract clause in the majority’s determination that bonds issued to build the Mariners’ stadium could not be set aside through the retroactive application of a local initiative absent contract impairment. Of course, near the turn of the century the contracts clause was much more alive and well in a United States Supreme Court which frequently saw social welfare legislation as an impairment of contract, although after Franklin Roosevelt’s court-packing scheme in the late ‘30’s, the contract clause seemed to have all but disappeared.

Freedom of Religion, Speech, and Press

Freedom of religion, speech, and press clauses of the First Amendment are also relevant to "property rights" in some situations.

For example the free speech clause of the state constitution was clearly implicated in the recent supreme court decision in Ino Ino, Inc. v. City of Bellevue, __ Wn.2d __, 937 P.2d 154, 1997 WL 214801 (May 1, 1997) wherein adult cabaret owners and nude dancers attached Bellevue regulations on nude dancing, asserting these regulations violated free expression to the result these entrepreneurs were virtually put out of business. The dissenting opinion, written by yours truly, notes the relationship between this sort of activity and the marketplace, commenting the fastest way to suppress speech activity is to deny economic viability in the same sense that newspapers could not exist if they could not be sold or they were denied newsprint. The Sandanista government’s denial of newsprint to Nicaraguan newspapers is a recent example.

Another example is Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 279, 931 P.2d 870 (1997) wherein the Tacoma News Tribune claimed government regulation of its editorial hiring decisions violated its freedom of press because if it were not allowed to choose its reporters based upon editorial criteria, the paper would allegedly lose credibility and, ultimately, profitability.

Freedom of religion also plays a part in property regulation in the sense that Seattle’s landmark ordinance was largely struck down when city fathers attempted to apply it to a church (First United Methodist Church of Seattle v. Hearing Examiner for Seattle Landmarks Preservation Bd., 129 Wn.2d 238, 916 P.2d 374 (1996)) and Walla Walla zoning regulations were invalidated in the same way. Munns v. Martin, 131 Wn.2d 192, 930 P.2d 318 (1997).

Followers of Lyndon LaRouche claimed a state constitutional free speech right to not only distribute but also sell their literature in the privately owned Southcenter Shopping Mall. Southcenter Joint Venture v. National Democratic Policy Committee, 113 Wn.2d 413, 780 P.2d 1282 (1989). A majority of the court found that there was no constitutional right under the state constitution to engage in any free speech activities in a privately owned shopping mall save and except gathering initiative signatures. Justice Utter opined in a concurring opinion that the distribution, but not the sale, of literature is constitutionally protected. As a private attorney I argued this case from the LaRouche view. By contract, the LaRouches had previously won a suit in federal court against the Port of Seattle, a publicly owned facility, under the First Amendment theory.

Of course the Second Amendment (the right to keep and bear arms), the Third Amendment (right to be free of government’s quartering troops in your home), and the Fourth Amendment (search and seizure) all have relevance to a person’s right to own, possess, and control his property.



The Fifth Amendment directly focuses on property issues.

No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The first clause (repeated almost verbatim in the Fourteenth Amendment) specifically includes property within the same due process clause which protects life and liberty. I shall discuss due process further under the Fourteenth Amendment. The second clause, however, talks about takings. Note that these are two separate clauses which serve separate functions, although the United States Supreme Court has applied both to the states as another aspect of that process which is due a citizen under the Fourteenth Amendment.

The simple language of the takings clause belies the great judicial confusion over the true meaning of this clause. This controversy and confusion finds its origin in the original text.


What is a taking? A "taking" in its clearest form is a physical appropriation of property to the government. When the government wants to build a highway through your property, it will usually proceeds by initiating a condemnation proceeding to carry its burden to establish (1) the public use and necessity and (2) appropriate compensation. Appropriations of this kind, however, are not limited to real property but also include personal property. "Property" is defined by state law. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). Our state, and most other states, define property in an extremely broad sense.

Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys any of the elements of property, to that extent, destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.

Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (quoting from Spann v. Dallas, 111 Tx. 350, 355, 235 Sw. 513 (1921)).

Property also consists of intangible rights as well as a tangible ones.

Of particular interest is the United States Supreme Court case of Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980). That case holds governmental attempts to appropriate interest from bank accounts is a "taking" for Fifth Amendment purposes. The Washington Legal Foundation has sued the Legal Foundation of Washington (your friendly IOLTA people) as well as the State Supreme Court for withholding this interest from the trust accounts of limited practice officers and their employers. The basis for this suit is the Fifth Amendment. A Fifth Circuit case applied the Webb's Pharmacies rule to attorney trust accounts invalidating a Texas program almost identical to the Washington IOLTA rule. Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 94 F.3d 996 (5th Cir. 1996).

There are, however, yet two more subjects of even greater controversy regarding what is a "taking."

The first area involves the so called "regulatory use" taking wherein the property owner claims that although the government has not appropriated his land in the traditional sense it has restricted its use to accomplish a public purpose to a sufficient degree (sufficient degree is always a matter of dispute) to accomplish a "taking" in the constitutional sense. We most often associate this line of thinking with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 160, 67 L. Ed. 322 (1922) wherein Justice Holmes tells us a use restriction which "goes too far" constitutes a taking even where the property itself remains in the possession of the property owner. The latest expression of this rule is found in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992) wherein the Supreme Court held a total restriction of use inconsistent with background property principles constitutes a per se taking, while hinting a use restriction less than total may also constitute a taking, but not per se.

The other quagmire involves permit conditions or exactions. An example of this is Nollan v. California Coastal Com'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) where a residential building permit was granted on condition that the property owner grant the public an easement to walk across his beach. Eventually the United States Supreme Court found that this was a taking because there was an insufficient nexus between the harm, which might be caused by the proposed property development, and the easement, i.e. they were unrelated and the condition was a form of government "extortion." The most recent subsequent application of this rule appears in Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) wherein the property owner was required to allow or permit a bike path as a condition to permit approval.

Yet another layer of controversy surrounds these cases in the sense that some courts and commentators would limit the rule to cases where exactions of real property are required as a permit condition whereas other courts and commentators would apply the rule to any permit condition or exaction (whether related to real property or not). Washington courts seem to limit the rule to real property exactions. See Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 16 n.7, 829 P.2d 765 (1992). (As a private attorney I saw this case proceed from my client’s point of view--Sintra--however, now that I am on the Supreme Court my mind is empty.)

Another aspect of the taking problem is "ripeness." The ripeness doctrine usually pertains to takings claims arising from alleged overregulation. It has two prongs: (1) determining remaining uses of the property (MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S. Ct. 2561, 2566, 91 L. Ed. 2d 285 (1986) ("[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes")); and (2) determining whether the party seeking compensation for a state taking has first sought (or must seeks) compensation in the state before going to federal court.

The first prong of the ripeness doctrine was recently clarified in Suitum v. Tahoe Regional Planning Agency, __ U.S. __, 117 S. Ct. 1659, __ L. Ed. __, 65 USLW 4385 (1997) decided on May 27, 1997. There the Supreme Court held that the ripeness doctrine does not apply to a claim for taking where the restriction on the use of the land is known although a landowner’s right to receive some benefit through transferable development rights is still a possibility. I posit, however, this aspect of the ripeness doctrine has nothing to do with taking claims which arise in the permit exaction context because such claims are based upon legitimacy, not upon the degree of use restriction.

There is of course a further question about whether or not the landowner should be entitled to general damages for pain and suffering and emotional distress and/or punitive damages under 42 U.S.C. § 1983. A Fifth Amendment takings violation literally fulfills the statutory requirement that such action be predicated upon the deprivation of a constitutional right as well as case law which provides a full range of relief in the form of money damages, injunctions, and declaratory relief.

Now if all this seems confusing, at least you may be rest assured that you confusion is shared by everyone else.


Takings under the State Constitution

While the Takings topic is fresh in our minds let us recall that article I, section 16 of the state constitution (as much a component of the state declaration of rights as freedom of speech or anything else) departs first from its federal counterparts significantly in text although there is a marked paucity of precedent exploring the differences.

This topic was explained in much greater detail in the WTSLA Civil Rights Seminar of February 23, 1996, and I will mail any interested party a copy of those seminar materials upon request; however, for our purposes today, let us recall the difference in the text and at least identify some of the issues.

Article I, section 16, Eminent Domain

Private property shall not be taken for private use . . . no private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into for the owner . . . whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public . . . .


"For Public Use"

This, in my view, is a key phrase often overlooked which distinguishes legitimate police power regulations from the government’s authority to exercise its right of eminent domain though "taking."

This phrase has a double meaning: (1) it distinguishes takings "for public use" from legitimate exercise of the police power to contain, regulate, or prohibit harmful activities whereas (2) it outright prohibits an exercise of the public power to "take," condemn, or acquire through eminent domain for any purpose other than a "legitimate" public one.

The first aspect is highlighted by the distinction between a public purpose and a public use. Some argue a "public purpose" is insufficient absent a public use. An example of this situation is Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984) wherein the United States Supreme Court upheld a Banana Republic-style land redistribution program from large landowners to small landowners. Time will tell whether this precedent will be followed.

The second aspect concerns legitimacy. If a taking is not for a "legitimate" public use or purpose, then it is simply prohibited by the clause—with or without compensation. The Supreme Court decisions in Nollan and Dolan represent a refinement of this rule as it pertains to nexus requirements on permit condition and exactions. Under this theory it would seem that those who claim the precise nature of the exaction (land, easements, money, what have you) doesn’t matter have the more convincing side of the argument. (See also discussion on takings for a "private" use, ante).

"Without just compensation"

Once we have a "taking" which is for "public use" the constitution requires compensation. Who calculates the compensation, when it is due, and how it is measured are issues of continuing dispute.

Where the state is doing the taking, it is the responsibility of the state to pay the compensation. When it takes without compensation, same is called an "inverse condemnation." In such situations it is still the responsibility of the state to pay the compensation, however, you will probably have to sue them to get it. If you sue in federal court under the Fifth Amendment, the federal court may remand you to State Court to seek your state remedies to obtain compensation and only entertain the claim for compensation under the Fifth Amendment if you are unsuccessful. A recent state court decision relating to this is Sintra, Inc. v. City of Seattle, __ Wn.2d __, 935 P.2d 555 (1997) (Sintra II), wherein a majority of the Supreme Court held an award of reasonable attorney fees and simple interest is part of the compensation remedy—although some federal courts have held compound interest is more appropriate.

Let us again compare the state constitutional text with that of the Fifth Amendment to the United States Constitution:

Nor shall private property be taken for public use without just compensation.

Some of the textual differences may be summarized as follows:

(1) Washington expressly prohibits taking property for private use whereas such application of the Fifth Amendment is left to inference.

(2) The Washington Constitution expressly prohibits taking or damaging property, whereas the Fifth Amendment references only taking.

(3) The Washington Constitution only permits taking or damaging where compensation is first paid to the owner, whereas the federal constitution is silent as to when the compensation must be paid.

(4) The Washington Constitution expressly provides that the public nature of the proposed use, if any, shall be a judicial question without deference to legislative assertion, whereas the Fifth Amendment is silent.

"Private use" language was used effectively in Petition of City of Seattle, 96 Wn.2d 616, 638 P.2d 549 (1981) to set aside the condemnation of property near what was to become the Westlake Mall to build an office building to house private enterprise. Query: Would this principle apply equally to condemnation of land for a public stadium provided exclusively to private entrepreneurs?

The language "taking or damaging" seems pregnant with so much meaning that any aspect of governmental interference in private property less than a taking may well be a "damaging."

The distinction between the two concepts—"taking" and "damaging"—must be determined by the "quality" or "character" of the governmental interference. Where such interference is mere happenstance, fortuitous or of inconsequential dimension, that interference may properly be classified as a "damaging." Where, however, the character of the governmental interference of the private property rights is planned, deliberate, and substantial, such interference, upon proper factual showing, should be deemed a "taking. . . ."

Windemere Corporation v. State, 79 Wn.2d 688, 693, 488 P.2d 1088 (1971).

Some Washington cases suggest there is no difference between "taking" and "damaging." For example, Highline School District v. Port of Seattle, 87 Wn.2d 6, 11, 548 P.2d 1085 (1976) contains confusing language suggesting, perhaps in dicta, that there really is no difference. See also Sintra v. City of Seattle, 119 Wn.2d 1, 12, 829 P.2d 765 (1992) (dicta).

An early Washington case, Brown v. City of Seattle, 5 Wash. 35, 31 P. 313 (1892), is most instructive. Brown was written by one of my favorite Supreme Court justices, Theodore Stiles, on behalf of a narrow (3-2) majority. Essentially the case involved a situation where the City of Seattle had proposed to lower a street grade with the effect that an adjacent property owner would be denied access to his property. Brown not only sued the city for an unconstitutional damaging, but actually obtained an injunction against the project (affirmed in the Supreme Court) to prevent it from going ahead. I find this case significant because there was no physical invasion of the Brown property, no overregulation of the Brown property, and does not seem to be a "taking" of the Brown property in any traditional sense. However, the Brown property was "damaged" in that its utility and value was undeniably adversely affected because of the denial of access. By the same token the denial of access under these circumstances was for a legitimate public purpose. Subsequent cases may have limited the holding in Brown to change of grade situations, however, I am not so certain the term "damaging" may be similarly restricted.

"Just Compensation Having Been First Made"

This clause seems to say the government must pay first and act later. Therefore, at least arguably, any governmental taking or damaging may be subject to injunctive relief at the outset (rather than a subsequent damage suit for inverse condemnation) as the constitution appears to require compensation as a condition precedent to governmental action. Such seems the opposite extreme from "ripeness" which in effect would deny compensation until one had progressed far down the track of litigation. A student State Constitutional Law paper aptly argues this may eliminate inverse condemnation in Washington, i.e. it is outright prohibited.

". . . Without regard to any legislative assertion . . ."

This takes an action for taking or damaging out of the rule which frequently gives the government a judicial benefit of doubt. Although this language is not included in the Fifth Amendment text, Supreme Court opinions show similar lack of deference to the government position in Fifth Amendment takings claims. See Nollan v. California Coastal Com'n, 483 U.S. 825, 107 S. Ct. 3141, 3148 n.3, 97 L. Ed. 2d 677 (1987).

Equal Protection

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend XIV, § 1.

This provision as well as its similar provision in the state constitution affords protection to property owners. It requires, at minimum, distinctions in the law have a rational basis. Unfortunately for property owners, the lowest level of scrutiny is reserved for their interest in property stemming from a footnote in a new deal era case U.S. v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 784 n.4, 82 L. Ed. 1234 (1938) which purports to make a distinction between constitutional rights based upon that writer’s perception of importance. For example, rights associated with free speech and political expression are said to be "fundamental" whereas rights associated with commercial activities and the protection of property are not. I cannot find any basis in the constitutional text for this view, nor can I rationally articulate any basis for the view other than personal bias. Nevertheless it is frequently honored as "the rule."

Notwithstanding, equal protection still has force and effect in the property area. For example, Grader v. City of Lynnwood, 45 Wn. App. 876, 728 P.2d 1057 (1986) (Pekelis, J.) review denied, 113 Wn.2d 1001, used an equal protection argument to strike down a land use ordinance which discriminated on the basis of continuity of adjoining land ownership (a property owner who also owned an adjacent parcel was subject to more restrictive land use requirements than the owner who owned but a single parcel). A similar case involving Seattle’s small lot ordinance, however, sustained the regulation which in essence directed that small lots be combined for development purposes where they were jointly owned by the same owner; although if they were separately owned, they could be developed separately. Tekoa Const., Inc. v. City of Seattle, 56 Wn. App. 28, 781 P.2d 1324 (1989) review denied, 114 Wn.2d 1005 (1990).

Due Process

The Fourteenth Amendment, as the Fifth Amendment, provides:

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .

The Washington State Constitution has a similar provision which is largely construed in a similar fashion. Our courts subscribe to the Lawton v. Steele test (152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385 (1894)) which has been articulated in numerous decisions including Presbytery of Seattle v. King County, 114 Wn.2d 320, 330, 787 P.2d 907 (1990) and Sintra I, 119 Wn.2d at 21.

Generally speaking due process requires (1) government action be reasonably calculated to achieve a legitimate governmental objective; (2) the means utilized be only that necessary to accomplish the objective; and (3) the end product not be "unduly oppressive" on the landowner. Presbytery, 114 Wn.2d at 300. These principles have found multiple application in a number of Supreme Court cases. See e.g. Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993), cert. denied, 510 U.S 1176, 114 S. Ct. 1216, 127 L. Ed. 2d 563 (1994) (state statute requiring location assistance to displaced tenants is "unduly oppressive"); Sintra I, 119 Wn.2d at 22 (excessive fees for a demolition permit are "unduly oppressive" upon the landowner).

Recently the Supreme Court refused to reexamine its language in Sintra I when the matter came back on appeal after remand for trial in Sintra, Inc. v. City of Seattle, __ Wn.2d __, 935 P.2d 555 (1997) (Sintra II). At issue in Sintra II was whether or not the property owner was entitled to his remedy under section 1983 when the city action violated due process because it was "unduly oppressive" yet not "irrational." The property owner claimed if the due process clause was violated for any reason, it was violated for purposes of 42 U.S.C. § 1983. The remedy would include compensatory damages and, in some instances, punitive damages as well. The court seemed to artfully dodge the issue, however, saying it was going to adhere to its original decision without deciding whether that original decision was correct or not.

The due process clause of the Fourteenth Amendment was the basis for the original attack on zoning ordinances in general. In Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926) Justice Sutherland (another personal favorite) wrote the majority for a split court (6-3) holding zoning ordinances do not violate due process. For those interested in questions of appellate practice and procedure it is interesting to note that the three dissenters simply signed as dissenters without an dissenting opinion. This would never happen in the Washington State Supreme Court which prohibits this practice. (If you’re going to dissent, you have to tell us why. This may discourage some from dissenting.)

There are some cases which involve government deferral to private parties (such as neighbors or neighborhood groups) with respect to the permitting process. Under State ex rel. Seattle Title Trust v. Roberge, 278 U.S. 116, 49 S. Ct. 50, 52, 73 L. Ed. 210 (1928) delegation to private parties of responsibility in the permitting process may involve due process issues as that case generally holds it is a due process violation to allow private persons to decide whether or not a land use permit will be granted to another private citizen. There are many different ways why or how this rule is or could be applied; however it is rarely applied because lawyers rarely raise it.

There is so much to be said about due process that I wouldn’t know how to end, therefore I will just stop.

Remedial Statutes

There are many statutes which are designed to assist individuals vindicate their rights pertaining to property against governmental entities. I will briefly mention a few.

42 U.S.C. § 1983 generally provides any person who is deprived of a federal constitutional right under color of state law has a cause of action against the person who perpetrated the violation with a corresponding right to recover all appropriate remedies including compensatory damages, punitive damages, equitable relief, declaratory relief, etc. This statute applies to every federal constitutional right without limitation as to the nature of the specific interest and has been effectively used with reference to property interests. Unfortunately this statute does not provide a remedy for violations of the state constitution.

RCW 64.40

This statute is of particular help to landowners who believe their rights with respect to his possession or use of real property have been unlawfully abridged by his local government. The statute is poorly drafted and has prompted much litigation, however, it is still a valuable tool. Watch out for RCW 64.40.030 which has a 30-day statute of limitations which the courts have also construed as a requirement to exhaust administrative remedies as well. Recent cases construing RCW 64.40.040 are Hayes v. City of Seattle, __ Wn.2d __, 934 P.2d 1179 (1997) and Smoke v. City of Seattle, __ Wn.2d __, 937 P.2d 186 (1997). Hayes disapproved earlier Court of Appeals decisions which started the 30-day statute of limitations to run before judicial review of the land use decision was final whereas Smoke held that the alleged requirement to exhaust administrative remedies did not pertain to administrative procedures which were not specifically "remedial" and/or which were collateral or optional.

RCW 8.04.090 and 8.28.040 were cited in Sintra II to provide authority to obtain an award of reasonable attorney fees and interest in an inverse condemnation situation.


Civil Rights Act of 1997 (1998?)

This legislation has been introduced in succeeding sessions of the Washington State Legislature with bipartisan support, but not quite enough to pass. Its principal sponsor is Senator Pam Roach and its principal advocate is WSTLA member Jeff Needle. Your undersigned also testified in favor of the bill (the price of which was another negative PI editorial). Once again this bill illustrates the principle that there is a unity amongst all individual rights since it provides that any state constitutional violation, of whatever nature, will provide a cause of action and remedy (similar to 42 U.S.C. § 1983 but more expansive) to the injured victim. It will be reintroduced in the 1988 session (at which time the PI editorial board will hopefully explain why citizens who have had their state constitutional rights violated by the government should be denied a remedy).


Property has no rights, but people do. People’s rights to own and use their property are just as important as their right to speak, worship, or engage in any other constitutionally protected activity. Since all rights are related, the violation of one man’s legal rights may, in the long run, undercut the viability of others. A vigorous defense of all constitutional rights is the most conservative approach to preserve any or all of them.


There is more than meets the eye in constitutional takings litigation. The world of takings is divided into two hemispheres: Appropriations and use restrictions of property on the one hand; and questions of legitimacy on the other. This is a basic and critical distinction which will determine appropriate legal analysis.

The state constitution, even where the language is very similar, provides an opportunity to argue that what may be a strike-out under the federal constitution is a home run under the state’s. Be creative.