TAKINGS UNDER THE UNITED STATES AND WASHINGTON

CONSTITUTIONS^*

By the Honorable Richard B. Sanders

The Fifth Amendment focuses directly on property issues.

The Due Process clause (repeated almost verbatim in the Fourteenth Amendment) specifically includes property within the same constitutional protections as life and liberty. The Takings Clause, however, speaks only of taking property. 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. Compare Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) ("private takings" claims should be reviewed under Fifth Amendment takings analysis, not Fourteenth Amendment substantive due process analysis).

It is insufficient to know a taking when you see one unless you can also articulate a reason why, or why not, a taking has occurred. Thus conceptualizing some basic principles will at least help us to begin to understand the hodgepodge of contradictory court decisions which seem to otherwise defy comparison.

The guiding principle of takings law is well summarized in Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 155 (1960): "The fifth amendment’s guarantee . . . was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Hold that thought.

A taking may occur in one of two ways. The governmental act may constitute a taking if it (1) does not substantially promote legitimate public interests, or (2) deprives the owner of any profitable use of the land. Agins v. City of Tiburon, 447 U.S. 255, 260-61, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980).

This guiding principle and these two alternative "prongs" underlie what seems great judicial confusion over the true meaning of this clause. However, the controversy 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. There was "no individual power of eminent domain in the state of nature, which is why it was known in the seventeenth and eighteenth centuries as ‘the despotic power.’" Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y. Law School L. Rev. 311, 320 (1994) (citing William Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 585-86 (1972). When the government wants to build a highway through your property, it will usually proceed 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.

Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (quoting from Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W. 513, 19 A.L.R. 1387 (1921)).

Property consists of intangible rights as well as a tangible ones. Permits, in and of themselves, create property rights when the statutory scheme for permit issuance imposes "significant substantive restrictions" on the decision to grant a permit. Bateson v. Geisse, 857 F.2d 1300, 1304-05 (9th Cir. 1988) (building permit). This is even true of discretionary permits. See, e.g., Parks v. Watson, 716 F.2d 646 (9th Cir. 1983) (street vacation permit).

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) which 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 Fabulous Pharmacies rule to attorney trust accounts invalidating a Texas program almost identical to the Washington IOLTA rule. Washington Legal Found. v. Texas Equal Access to Justice Found., 94 F.3d 996 (5th Cir. 1996), cert. granted in part by Phillips v. Washington Legal Foundation, 117 S. Ct. 2535, 138 L. Ed. 2d 1011 (1997).

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

The first area involves the so called "regulatory" 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, 28 A.L.R. 1321 (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. An aspect of this analysis must concern whether the parcel as a whole is to be considered or only a portion thereof. See Allingham v. City of Seattle, 109 Wn.2d 947, 749 P.2d 160, 757 P.2d 533 (1988), overruled by Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 2d 238 (1990) (entire parcel must be considered to determine remaining use). See pages 22-23, ante.

The other quagmire involves permit conditions or exactions.

"For public use" is our segue to the second prong of the takings doctrine which generally holds a taking occurs if a land use regulation fails to substantially advance legitimate state interests. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980). The burden is on the government to show it does. Nollan, 483 U.S. at 836 n.3; Dolan, 114 S. Ct. at 2320 n.8. Although this part of the doctrine also encompasses appropriations of property for private, not public, use (which are outright prohibited) (see, e.g., In re City of Seattle, 96 Wn.2d 616, 638 P.2d 549 (1981) (condemnation of Westlake Mall property improper because for private use); but see Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984) (public purpose, as distinguished from use, good enough)), by far the most meaningful example of this are permit exaction cases such as Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) where a residential building permit was conditioned 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 Supreme Court 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 exacting a bike path was a condition to permit approval. Dolan clarifies the Nollan nexus requirement by specifying that an exaction, to be legitimate, must be roughly proportional to the impact of the development under consideration. Compare Sparks v. Douglas County, 127 Wn.2d 901, 904 P.2d 738 (1995) (A subdivision developer resisted dedication of private property to a public street, contending that the street improvement was not necessitated by his development. Our court concluded that the exaction had sufficient nexus because it was roughly proportional to the consequences of the project proposal.).

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 consisting of real property or not). Some Washington cases 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), cert. denied sub nom. by Robinson v. City of Seattle, 506 U.S., 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); but see Sintra, Inc. v. City of Seattle (Sintra II), 131 Wn.2d 640, 674, 935 P.2d 555 (1997) (Durham, C. J., concurs that HPO fee was a taking) (Durham, J., was author of Sintra I). Compare Nollan, 483 U.S. at 837 (requirement to pay $100 fee to shout fire lacks nexus to purpose of prohibition).

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 seek) compensation in the state before going to federal court.

The first prong of the ripeness doctrine was recently clarified in Suitum v. Tahoe Reg’l Planning Agency, __ U.S. __, 117 S. Ct. 1659, 137 L. Ed. 2d, 980 (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.

The most recent Washington Supreme Court discussion on compensation is contained in Sintra, Inc. v. City of Seattle (Sintra II), 131 Wn.2d 640, 935 P.2d 555 (1997). This appeal arose from the remand of Sintra I, wherein the jury awarded compensation for the leasehold value of the property during the period of the temporary taking. The jury was instructed that the gross leasehold value of the property as proposed to be built, for the period of the temporary taking, was the appropriate measure of compensation. The court held an award of reasonable attorney fees plus at least simple interest (compounded if you could prove necessity) were also necessary components of just compensation.

It is interesting to note that the jury award reviewed in Sintra II represents a jury determination that there was no remaining economic use (a second prong determination) whereas it was Sintra’s view that this was more properly viewed as a first prong "legitimacy" taking. However, the first prong analysis was apparently rejected by Justice Durham who wrote the majority opinion in Sintra I although her concurrence in Sintra II seems to suggest an acceptance of a first prong taking. ("We have already held that the HPO went far beyond the prevention of the anticipated harm of Sintra’s proposed use of its property, and imposed a burden to provide an affirmative public benefit, a burden which should have been born by the public as a whole. [Footnote omitted.] Based on this effect of the HPO, it has already been determined that the denial of Sintra’s proposed land use under the HPO amounted to a regulatory taking. Thus, under a correct analysis of the threshold issue, we would never reach Justice Talmadge’s proposed inquiry into whether the HPO demolition fee was ‘roughly proportional’ to the public benefit."). Sintra II, 131 Wn.2d at 674-75.

As a further caveat we must recall that an illegitimate taking (such as a private taking, see In re Seattle) is not justified even if compensation is paid.

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.

From time to time the Washington Supreme Court has attempted to consolidate all of the takings factors supposedly gleaned from federal jurisprudence into a master outline or checklist. The last comprehensive attempt at this appeared in 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). The analysis goes like this:

1. Does the regulation destroy or derogate any fundamental attribute of property ownership including the right to

a. possess

b. exclude others

c. dispose of property

d. prevent physical invasion, or

e. make some economically viable use of property?

If yes, a taking has occurred; provided if no economically viable use of the property is permitted, we must still ask if the intended uses are allowed under background property principles. If yes, a taking has occurred under that criteria as well.

2. If a taking has not been established under No. 1, above, we must then ask

(a) Does the regulation safeguard the public interest in health, safety, environment or fiscal integrity of an area?

or

(b) (i) Does the regulation seek less to prevent harm than afford affirmative public benefit, or

(ii) Does it infringe on fundamental attributes of property ownership?

If the answer to 2(b) is yes and

(a) the regulation does not advance legitimate state interests, a taking has occurred; however,

(b) if the regulation does advance legitimate state interests, the court must balance

(1) the economic impact of the regulation on the property

(2) interference with investment backed expectations, and

(3) the character of the governmental action.

If the "balance" favors a taking, it is a taking. If none of the above, however, there may be a due process violation.

The aforementioned formulation, however, raises a number of further concerns.

First, development rights are not listed as a "fundamental" attribute of property ownership notwithstanding substantial case law which says they are. Compare pp. 16-17, ante.

Second, the question of whether or not one can make "some economically viable use" of his property raises the further question of whether we must consider the size of the parcel as a whole (see, e.g., Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 2d 238 (1990)), or whether deprivation of something less than the entire parcel will suffice. Compare physical invasion (e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) (TV cable wire is taking) with cases that hold deprivation of significant use are not taking, e.g, Presbytery.

A third problem involves the legitimacy prong of the test illustrated by Nollan. Obviously Nollan deals with the right to develop ones property notwithstanding "illegitimate" governmental permitting restrictions in the form of insufficiently related exactions. These types of takings do not seem to fit within this grand outline.

Another objection is what is meant by "health, safety, environment or fiscal integrity of an area?" Under some circumstances these may describe, or be difficult to distinguish from, the "public benefit" which is supposedly the alternative.

And what is a "legitimate state interest?" Is it a hypothetical interest which is within the police power or is it the specific interest actually sought to be advanced by the regulation in question? And what if the regulation is unlawful or invalid for some other state law reason—for example, the housing preservation ordinance was an invalid tax as held by San Telmo v. City of Seattle, 108 Wn.2d 20, 735 P.2d 673 (1987) and R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 780 P.2d 838 (1989). Compare Sederquist v. City of Tiburon, 765 F.2d 756, 761 (9th Cir. 1984) (conditions imposed which are illegal under state law yield "taking").

When we get to the balancing test, what do these terms mean, how much do each of them "weigh," and how are they supposed to be weighed?

Now if all this seems confusing, at least you may be rest assured that you are not alone.

While the text of Constitution Article I, § 16, amend. 9, and U.S. Constitution Fifth Amendment significantly differ, no modern Washington authority undertakes an independent interpretation of the state constitutional provision on eminent domain. See by Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 2d 238 (1990). This may be the case because lawyers (like me) declined to brief the issue pursuant to the criteria set forth in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) or perhaps because the court sidestepped the issue, deferring an independent analysis which might require a radical departure from current practice.

Perhaps the reluctance of counsel to explore the depths of a truly independent interpretation of Washington’s eminent domain provision can be explained by the very natural psychological reluctance to sail uncharted waters, murky ones at that. However a renewed political and judicial interest in the takings issue at both the state and national level seems to indicate the tide is turning and the breeze is freshening, especially with regard to alleged "regulatory takings" resulting from use restrictions.

Besides the all important text of Article I, § 16, one must begin by taking stock of available resources.

One resource as little known as it is valuable is a series of student term papers prepared for Justice Robert Utter’s U.P.S. Law School course on state constitutional law, now taught by Justice Charles Johnson (who has collected and maintained the papers at the Supreme Court under each state constitutional provision to which they pertain). Special thanks therefore goes to the following law students, most of whom are now practicing attorneys—Tanya Button, Mary Helen Carrosino, Thomas M. Ellington, Tracy Douglas Forsythe, Richard Piccioni, Robert Raymond, and William G. Simmons.

To this bold beginning one may well add "A Constitution Adapted to the Coming State, Suggestions by Honorable W. Lair Hill" (hereafter "Hill"), published in the Morning Oregonian on July 4, 1889, the first day of Washington’s Constitutional Convention (KF 4530 H56). Convention delegates utilized Hill’s working draft with commentary as a starting point for their constitutional deliberation.

Several other resource documents are available in the library regarding constitutional history in this state, including James Leonard Fitts’ "The Washington Constitutional Convention of 1889" (KF 4512 F58 1951) (a master’s thesis) as well as Wilfred J. Airey’s doctoral thesis: "A History of the Constitution and Government of Washington Territory," (U.W. 1945) (KF 4541 A957 1945).

Professor William B. Stoebuck’s Nontrespatory Takings in Washington (Butterworth 1980) (hereafter "Stoebuck") and related texts and articles prepared by Professor Stoebuck provide a welcome foundation to further inquiry which include the philosophical underpinnings of the eminent domain provision as well as case law construing the provision in this state as well as the 26 states that have adopted a similar provision. Stoebuck at 9.

Article I, § 16 raises several questions unique from its federal counterpart:

1. Does the requirement that "no private property shall be taken or damaged . . ." provide a broader right than similar language in the Fifth Amendment which states ". . . nor shall private property be taken . . . ", particularly with respect to nontrespatory regulation of use?

2. Can inverse condemnation exist in the State of Washington in light of the state constitutional requirement that "just compensation having been first made, or paid into court for the owner. . . ."?

3. Are presumptions that the government acts legitimately inconsistent with the requirement that the public nature of a use be determined ". . . without regard to any legislative assertion . . . ."?

The text of Washington Constitution Article I, § 16, amend. 9, Eminent Domain, is most important. It differs significantly in text from its Fifth Amendment cousin.

Compare the Fifth Amendment to the United States Constitution, which provides:

Some of the textual differences may be summarized as follows:

It is the thesis of this writer that the original text is the most reliable chart to discovery of a truly independent, and accurate, interpretation of the Washington eminent domain provision and that everything else is logarithmically less important. Gunwall sets forth factors to be considered but does order their relative importance.

The greatest modern champion of Washington’s Constitution is undoubtedly retired Justice Robert F. Utter, who drew the loose ends of constitutional interpretation together in coherent form in his law review article, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 (1984) (hereafter "Utter"). Under the heading "How to Analyze the Washington Declaration of Rights," Justice Utter divides the topic in two: "Textual Analysis" and "Intent of the People." Under the former heading he opines that a textual analysis of the Constitution is generally subject to the same maxims as a textual analysis of statutory law and adds it is undisputed that "if a constitutional provision is plain and unambiguous on its face, then no construction or interpretation is necessary or permissible." Utter at 509 quoting State ex rel. Anderson v. Chapman, 86 Wn.2d 189, 191, 543 P.2d 229, 230 (1975). See also Washington Economic Dev. Fin. Auth. v. Grimm, 119 Wn.2d 738, 837 P.2d 606 (1992) (supreme court will not construe or interpret constitutional provision that is plain or unambiguous).

As if to underline this fundamental point, which scarcely permits any other, Utter observes that the object of constitutional interpretation is to reflect and apply the intent of the people who ratified the document rather than the intent of the handful of men who wrote it. Utter at 512. See also Boris I. Bittker, Interpreting the Constitution: Is the Intent of the Framers Controlling? If Not, What Is?, 19 Harv. J.L. & Pub. Pol’y 9 (1995). Therefore it is a mandate of constitutional construction that words be given the literal meaning ascribed to them by the ordinary citizens at the time of the constitution’s popular ratification in October 1889.

Justice Joseph Story announced

A few maxims of constitutional construction might well be recalled:

The court should never allow a change in public sentiment to influence them in giving the construction to the written constitution not warranted by the intention of the founders. State ex rel. O’Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969). The meaning of the state constitution was fixed at the time it was adopted and must be construed in the sense in which the framers understood it. Boeing Aircraft Co. v. Reconstruction Fin. Corp., 25 Wn.2d 652, 171 P.2d 838, 168 A.L.R. 539 (1946). A constitutional provision should receive a consistent and uniform interpretation. Even though the circumstances may have changed to make a different rule seem more desirable, the constitution should not be taken to mean one thing at one time and another at another time. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954). Nor is it the role of the supreme court to engraft exceptions where none are expressed in the constitutional provision, no matter how desirable or expedient such exception might seem. State ex rel. O’Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965).

Of course state courts have the power to interpret their constitutional provisions as more protective of individual rights than parallel provisions of the United States Constitution. Such independent interpretation is particularly appropriate when the language of the state provision differs from its federal counterpart. State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980). However the supreme court is not at liberty to disregard the fundamental nature of the state constitution in order to advance theories that may be perceived by some to constitute desirable social policy. Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 780 P.2d 1282 (1989).

While the importance of the text may seem self-evident, it is submitted it is anything but trivial. If true that it is the text, and the ordinary meaning of words in that text, which is the ultimate rule of constitutional construction, that text must prevail against any and every argument which leads to an inconsistent conclusion.

Perhaps these considerations are particularly important with respect to Article I, § 16, since alternative approaches so often lead to results which simply cannot be reconciled with the text or, for that matter, each other (although supported by ample precedent).

It may be appropriate to measure the relative importance of other relevant Gunwall factors against the ultimate textual standard.

1. The Text

Lund v. Idaho & W.N.R.R., 50 Wash. 574, 576, 97 P. 665 (1908). Without fear of contradiction our court has consistently defined property broadly. Our supreme court has repeatedly stated:

Wandermere Corp. v. State, 79 Wn.2d 688, 692, 488 P.2d 1088 (1971) (quoting from Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960). Cf. William B. Stoebuck, Nontrespatory Takings in Washington (Butterworth 1980) at 7.

Lawson v. State, 107 Wn.2d 444, 456-457, 730 P.2d 1308 (1986).

While it is up to each state to define property for itself, the right to use one’s property has been universally understood to be a fundamental attribute of real property ownership. Compare Eaton v. Boston, C. and M.R.R., 51 N.H. 504, 511-512 (1872) ("the framers of the Constitution intended to protect property rights which are worth protecting; not mere empty titles . . . among those elements is, fundamentally, the right of use . . . ") and Lord Coke: "to deprive one of the use of his land is depriving him of his land. What is the land but the profits thereof?" See also John M. Groen and Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, at 1266, 1295 (Spring 1993).

The terms "taken or damaged" are here considered together because (1) they appear together in the original constitutional text and (2) the meaning of one is often explained by comparison to the meaning of the other. Wandermere Corp. v. State, 79 Wn.2d 688, 693, 488 P.2d 1088 (1971) provides definition and distinction:

The Wandermere definition is consistent with the more fundamental canon of statutory construction that different words when used in the same text must mean different things. See, e.g., State ex rel. Public Disclosure Comm’n v. Rains, 87 Wn.2d 626, 634, 555 P.2d 1368, 94 A.L.R.3d 933 (1976).

However Highline School Dist. v. Port of Seattle, 87 Wn.2d 6, 11, 548 P.2d 1085 (1976) contains confusing language suggesting, perhaps in dicta, that there is really no difference between "taking" and "damaging." See also Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765, cert. denied sub nom. by Robinson v. City of Seattle, 506 U.S., 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992) (dicta). However Highline preceded Gunwall by about ten years and evidenced no deliberate intent to define or redefine these terms for the purpose of establishing their independent meaning in Article I, § 16. "Cases decided without benefit of Gunwall scrutiny lack the precedential force which follows from this more thorough review." State v. Rivers, 129 Wn.2d 697, 723, 921 P.2d 495 (1996) (Sanders, J., dissenting).

2. Proceedings at the State Constitutional Convention

The Washington State Constitutional Convention was convened on July 4, 1889 and utilized a draft constitution prepared by W. Lair Hill as its model. Hill’s draft with commentary was published in the Morning Oregonian, July 4, 1889, page 9, and served as the starting point for the convention.

Hill had a familiar 19th Century reverence for the importance of rights associated with property. His introduction to the Washington Declaration of Rights characterizes the enumerated rights as "natural," and "unalienable," "sacred and invoidable" "such as the right . . . to acquire and own property . . . ." Id. vii.

Hill’s proposed text for Article I, § 16, differed from that finally accepted:

Hill specifically referenced the "or damaged" text as a necessary addition to the Constitution to protect the rights of the individual from indirect deprivations of property not falling within the prohibition against taking private property.

Clearly Hill, at least subjectively, believed the prohibition against damaging added protections to the property owner beyond that associated with the term "taking."

But here is the rub: Hill apparently understood the term to reference adverse consequences visited upon neighboring property by public acquisitions of land. ("These words give redress for all damages which are the direct, natural and immediate results of the taking of property for public use even through the property actually taken did not belong to the person so damaged.") However, this may not mean Hill would have opposed government payment of compensation for "damaging" where nobody’s land was actually "taken" (e.g., by regulation/use restrictions) although other possible applications of the term not involving any taking at all seemed to have been outside his contemplation or experience since the advent of aggressive public use restrictions came decades later.

Therefore it could be argued that Hill’s subjective view of the term "damaging" is broader than the dicta in Highline School District but still substantially narrower than the literal meaning of the text in 1889 Washington.

3. Judicial Precedent/History in Other States.

"Damaging" was apparently first added to a constitutional prohibition against taking property without just compensation by amendment to the Illinois State Constitution in 1870. This history is retraced in City of Chicago v. Taylor, 125 U.S. 161, 8 S. Ct. 820, 31 L. Ed. 638 (1888). It is also interesting to note that Taylor was decided just the year before the 1889 Washington Constitution was adopted and ratified. Taylor holds:

The decision went on to apply the language to change in a road grade which thereby denied the property owner access, hence "damaging" his property while not "taking" it.

This "change in road grade" application seems to be fairly typical of other jurisdictions, few of which have literally applied the "damaging" text to regulatory use restrictions.

4. Comparison of Federal Precedent

There is a dearth of federal precedent on regulatory takings prior to the adoption of the Washington Constitution in 1889, and federal precedent was slow to develop thereafter. I assume the reason for this is simply that governments had not embarked on substantial regulatory use restrictions or, if they did, it was rare. There is, however, at least one early reference to the problem by the United States Supreme Court:

Pumpelly v. Green Bay Co., 81 U.S. (13 Wall.) 166, 177-78 (1871). There the matter lay, relatively dormant, until the famous opinion by Oliver Wendell Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 160, 67 L. Ed. 322 (1922) ("The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.").

The federal courts have been fairly unsuccessful in their attempts to define a principled and easily applicable rule to determine when a regulation goes "too far." Professor Charles Haar has suggested that the difference between a police power regulation and a regulatory taking "may be the lawyer’s equivalent of the physicist’s hunt for the quark." Charles Haar, Land Use Planning 766 (3d ed. 1977).

For my purposes, at least, "regulatory taking" cases are cases which involve governmental imposition or restriction of some use a private property owner would otherwise be entitled to make of his property. This would exclude physical invasion cases such as Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) (cable TV wire to apartment house is a taking) as well as cases involving an exaction in exchange for a land use permit. See, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (condition on development is not legitimate if it does not arise from a problem caused by the development), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (refinement of Nollan nexus test). Regulatory takings would also seem to be generally inapplicable to personal property, although that point seems at least debatable. Compare Concrete Pipe & Prods. of California v. Construction Laborers Pension Trust, 508 U.S. 602, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993).

Other federal regulatory cases from United States courts of appeal which post-dated Lucas include Reahard v. Lee County, 968 F.2d 1131 (11th Cir. 1992); Florida Rock Indus. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995); and Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir.) (procedural decision, en banc) aff’d by 28 F.3d 1171 (Fed. Cir. 1994) (merits).

The modern trend in federal authority appears to be that less than the entire parcel of property need be considered as the takings "denominator." See Lucas, 505 U.S. 1003, 1016 n.7, and that it is not necessary that all of the use need be taken by regulation to afford the owner the right of compensation. See Lucas, 505 U.S. at 1020 n.8. This is to say that the United States Supreme Court seems to be working its way around to what the Washington State Supreme Court did in Allingham v. City of Seattle, 109 Wn.2d 947, 749 P.2d 160, 757 P.2d 533 (1988) (city greenbelt ordinance which restricted the use of 70 percent of the lot, leaving the owner unfettered use of the remaining 30 percent, is a taking). See also Takings, supra, at 149-50. However the Washington Supreme Court was soon to overrule Allingham in Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S. Ct. 284, 112 L. Ed. 2d 238 (1990), marking a retreat from the partial parcel "denominator" it had previously defined in Allingham.

Some commentators summarized the post-Lucas state of federal law as requiring compensation for a regulatory taking if

(a) Regulation takes all economic use but does not abate a nuisance and takes an interest recognized under background state law principles, or

(b) if some use remains, a taking may still have occurred subject to an ad hoc balancing of various interests.

Suffice to say federal regulatory takings law was virtually nonexistent prior to the adoption of our State Constitution and subsequent recent precedent hardly sheds any light on the "original intent" of our constitutional framers as to the meaning of "taking" much less "damaging" which has no federal counterpart in any event.

5. 1889 Washington Practice and Sentiment

Another interesting area of inquiry would be the state of local and statutory law in 1889 Washington as it pertained to regulations which might constitute a taking, as well as what historical references there may be to the zeitgeist of that era.

As to the first proposition, regulations which might constitute regulatory takings, I have not been able to find any, however, my research in this regard was not exhaustive. I would be looking for generalized use restrictions such as wetlands restrictions, environmental restrictions of other kinds, and other prohibitions on a landowner’s right to use his land as he saw fit, including development prohibitions, if any. As to the zeitgeist (spirit of the times) I note the following passage in Washington: A Centennial History (n.p.) (University of Washington Press 1988)

These folks don’t seem like Sierra Club members!

Based upon the preceding quotation, I do not see a great deal of sympathy amongst the general population for land use restrictions in 1889 Washington. Once again, my research on this point has not been exhaustive.

6. Early Washington Precedent on "Damaging"

The earliest reported case on Article I, § 16’s use of the term "damaging" is Brown v. City of Seattle, 5 Wn. 35, 31 P. 313 (1892). This decision is attached in its entirety since it is often not available in smaller law libraries. Although it is a change of grade case the language and implications seem to go substantially beyond its facts; although Fletcher v. City of Seattle, 43 Wn. 627, 629, 86 P. 1046 (1906) purported to limit its holding to change of grade as opposed to establishing a new grade.

Brown is somewhat remarkable because it granted an injunction against the City of Seattle pursuant to Article I, § 16 against lowering the grade of a public street so as to deny access to the property owner. This is remarkable because in the usual inverse condemnation situation government acts first, leaving the property owner to subsequently litigate for damages or invalidation. Such a holding also has arguable bearing upon claims that litigation arising under Article I, § 16, is premature or "not ripe," i.e., if the government acts, or is expected to act, without first paying compensation, an equitable remedy is immediately available as per Brown.

The court also emphatically holds that "‘damaged’ does not mean the same thing as ‘taken’ in ordinary phraseology," Brown, 5 Wn. at 40, and therefore deserves a more expansive interpretation.

Justice Theodore Stiles (1848-1925), author of the opinion, was a delegate to the Washington State Constitutional Convention in 1889 and played a leading role at the convention, chairing the Committee on County, Township, and Municipal Organizations and serving on the Rules, Judiciary, and Public Lands Committee as well. Charles H. Sheldon, The Washington High Bench (WSU Press 1992) 326-28. Stiles was nominated for the state supreme court by the Republican Party and, with his four Republican brethren, thrashed the democratic opposition in October 1889 balloting. According to Professor Sheldon: "Judge Stiles developed a reputation as a scholar as the state’s leading authority on the Washington Constitution." Id. at 327.

Future litigation on this point will no doubt pit Judge Stiles’ views against subsequent precedent which, unlike Justice Stiles, seems to find little or no distinction between takings and damaging.

This constitutional clause assumes that the property is about to be taken or damaged for a legitimate public purpose. If it is not public then the power to take or damage may not be exercised with or without compensation, or at least arguably so.

Brown seems to serve as a good example of the importance of paying compensation before, not after, the taking or damaging occurs and provides a basis for injunctive relief.

At this point some observations from the excellent student paper prepared by Tracy Douglas Forsythe "Inverse Condemnation—A Non Sequitur in Washington?" become most appropriate. According to Forsythe the phrase "without just compensation having first been made" . . . "would seem to imply an affirmative act that seems inconsistent with inverse condemnation. Inverse condemnation or regulatory takings [without prior compensation] are based upon the premise that the government is not affirmatively exercising its eminent domain power, that in fact the government has regulated to the extent that a defacto [sic] taking has occurred. The requirement that compensation be first paid could imply that unless payment is made as a threshold, the power to take or damage does not exist. This is distinctly different from the language of the Fifth Amendment . . . ." Forsythe at 16. He argues because the Constitution requires up front compensation, so-called inverse condemnation would be an ultra virus act regardless of whether compensation was later required or offered. Forsythe at 21. Although no precedent is cited for the proposition it is difficult to argue with this logic.

The implications of this kind of argument not only defeat ripeness-type defenses but arguably clear the way for invalidation ab initio with a hefty award of compensatory damages—even if the governmental action was for a legitimate public use, yet taken without prior compensation.

Whether this argument finds any precedential support anywhere is beyond the present diligence of your undersigned to determine.

The legal implications, and natural consequences, of this phrase deserve further exploration. As previously noted, the Fifth Amendment to the United States Constitution provides ". . . nor shall private property be taken for public use without just compensation."

Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960).

The Washington Constitution, however, would apparently make the question of whether or not the "contemplated use be really public" a judicial question without reference to any legislative declaration of purpose or, perhaps by inference, dispel any presumption that the use is or is not "really public" which might arise from the legislation itself.

Enforcement of this rule to its logical conclusion might have some unanticipated results.

First, it would be a "judicial question" whether or not the proposed governmental action was in substance an effort to take or damage for "public" benefit on the one hand or a legitimate exercise of the police power to prevent harmful activity on the other. The latter might be outside Article I, § 16, and not subject to either its prohibitions or its compensatory requirements.

The other side of the "public use" question is legitimacy in a broader sense. Compare Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (there must be a substantial nexus between the proposed private development and the asserted public purpose of the permit condition to avoid the prohibited taking).

Analyzing a taking by "balancing" the public burden unfairly shouldered by a private landowner against the benefit flowing to the public from the private imposition, as per Guimont I, seems to be at least arguably out of sync with the question posed by Article I, § 16, i.e., "whether the contemplated use be really public . . . ." If it is "really public" a taking or damaging is permitted if compensation is first paid; if it isn’t, the proposed governmental action is simply prohibited. Cf. John M. Groen and Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, at 1281 (Spring 1993); William W. Wade, Ph.D., Economic Considerations of Regulatory Takings Reform: Judicial Precedent and Administrative Law vs. Legislative Intent, 8-4-95, BNA, 676.

This provision of Article I, § 16 is also consistent with federal case law which burdens the government to justify its actions under the takings clause. See Nollan, 483 U.S. at 834 n.3 and see Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 2320 n.8, 129 L. Ed. 2d 304 (1994).

The legitimacy/public use side of the takings equation is perhaps the least understood yet most important issue in takings law. Our state constitution may provide an independent source for a definitive answer.