appropriation or the physical invasion of private
property.5
Reviewing historic takings jurisprudence, the
Lingle opinion recognizes the two distinct types
of regulatory takings claims: (1) categorical or per
se takings resulting from a loss of all economically
viable use of property and (2) all other claims, requiring factual, ad hoc inquiries. Under the former,
the Court determines whether the challenged regulation deprives a property owner of economically
beneficially use of property. If so, just compensation is required under the Court’s holding in Lucas
v. South Carolina Coast Council.6 Under the latter,
the Court conducts a factual inquiry to gauge the
impact of the regulation, utilizing the three nonexclusive balancing considerations set out in Penn
Central Transportation Co. v. City of New York7 to
determine if the regulation “goes too far:” (1) the
regulation’s economic impact on the claimant, (2)
the extent to which it interferes with distinct investment-backed expectations, and (3) the character of
the government action (hereinafter, regulatory takings requiring Penn Central’s ad hoc factual inquiries are referred to as “Penn Central takings”). The
Lingle Court then identifies a common touchstone
to the three inquiries that are not actual appropriation (physical invasion, deprivation of all economic
use, Penn Central takings): “Each [inquiry] aims to
identify regulatory actions that are functionally
equivalent to the classic taking in which government directly appropriates private property or ousts
the owner from his domain.”8
After presenting an overview of takings jurisprudence and recognizing the common touchstone,
the Court moved into an analysis of the Agins v.
City of Tiburon “substantially advances” test. In
the 1980 Agins opinion, the Court had announced:
“[T]he application of a general zoning law to particular property effects a taking if the ordinance does
not substantially advance legitimate state interests
… or denies an owner economically viable use of
his land.”9 Following the Agins opinion, courts had
used the “substantially advance” clause as a standalone regulatory takings test existing independently of Penn Central’s three factors; however, the test
does not – like the other three tests do – identify
regulations that are “functionally comparable” to
government appropriation or invasion of private
property. Rather, the substantially advances test
suggests a means-end test that inquires into how
“effective” the regulation is at achieving legitimate
public interests. In Lingle, then, the Court rejects
the “substantially advances” test for the purpose of
takings analyses because it “prescribes an inquiry
in the nature of a due process, not a takings, test,
and [has] no proper place in our takings jurisprudence.”10
After removing the substantially advances
clause from takings inquiries, the Lingle Court concludes by announcing the remaining field of takings analyses:
Lingle Lingering: Seven Years
after the United States Supreme
Court’s Lingle v. Chevron U.S.A.,
Inc., Washington Courts Have
Not Reformed the State’s
Regulatory Takings Test
By Paul J. Dayton and Leslie C. Clark, Short Cressman
& Burgess PLLC
In May 2007, the authors of this article published in
this Newsletter a Fifth Amendment takings article
addressing the 2005 United States Supreme Court
opinion, Lingle v. Chevron U.S.A., Inc.1 That article complained that Lingle’s extraction of the due
process clause of the Fourteenth Amendment from
Fifth Amendment regulatory takings analyses remained unapplied in Washington courts. Now five
years later, the same is still true. This article reminds
of how the Washington regulatory takings analysis
must change in light of Lingle.
I. Background: Lingle v. Chevron U.S.A.,
Inc.’s Extraction of Due Process
Considerations from Regulatory Takings
Claims
In Lingle v. Chevron U.S.A., Inc., the United States
Supreme Court extracted substantive due process
analyses from takings analyses and articulated the
takings theories under which plaintiffs may proceed.
The case began when Chevron challenged Hawaii’s new statute regulating gasoline leasesholds
claiming, among other things, that the statute’s
15 percent rent cap effected a taking of Chevron’s
property in violation of both the Fifth and Fourteenth Amendments. The federal district court
granted summary judgment to Chevron, applying
the “substantially advances” takings test articulated
in Agins v. City of Tiburon.2 Specifically, the court
held that “Act 257 fails to substantially advance a
legitimate state interest, and as such, effects an unconstitutional taking in violation of the Fifth and
Fourteenth Amendments.” After two appeals, the
Ninth Circuit affirmed the award of summary judgment to Chevron, with a dissenting opinion contending that the Act should not be reviewed under
the “substantially advances” standard.3
The Supreme Court granted certiorari and reversed.4 The opinion begins with a reminder that
the Takings Clause does not prohibit the government from taking private property but, rather,
places conditions on such takings: the taking must
be for public use, and the government must provide just compensation to the property owner. The
Court then observes that the “paradigmatic taking”
requiring just compensation is a direct government
May 2012
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We hold that the “substantially advances”
formula is not a valid takings test, and indeed
conclude that it has no proper place in our
takings jurisprudence. In so doing, we reaffirm that a plaintiff seeking to challenge a
government regulation as an uncompensated
taking of private property may proceed under
one of the other theories discussed above – by
alleging a “physical” taking, a Lucas-type “total regulatory taking,” a Penn Central taking,
or a land-use exaction violating the standards
set forth in Nollan and Dolan.11
Guimont Step 2: Only if answers to the threshold questions allow continued inquiry, the
court conducts a takings analysis.
The takings analysis, in turn, has two parts:
(1)The court asks whether the regulation “substantially advances” a legitimate state interest. [This is the same test rejected in Lingle.]
If the answer is “no,” the regulation is a taking, and the analysis ends.
If the answer is “yes,” the court proceeds
with a balancing test.
As explained below, this reassurance from the
Court—that despite the rejection of the “substantially advances” test plaintiffs still have available
the three regulatory takings challenges for a “physical” taking, a “total” taking, and a Penn Central taking—remains out of reach to a Washington state
court plaintiff litigating a Fifth Amendment takings
claim.
(2)If the inquiry continues, the court engages
in the ad hoc takings balancing test established in Penn Central in which the court
considers:
II. Contrary to Lingle, Washington’s TwoPart Threshold Inquiry Bars Many
Plaintiffs from Proceeding on a Fifth
Amendment Taking Claim.
1. The regulation’s economic impact on
the property;
2. The extent of the regulation’s interference with investment-backed expectations; and,
In its 1993 Guimont v. Clarke opinion,12 the
Washington Supreme Court established a mandatory, ordered analysis to be followed by every plaintiff
advancing a Fifth Amendment takings claim. Under
Guimont, Washington’s analysis for Fifth Amendment takings claims13 sends plaintiffs through the
initial double hurdle of a two-part “threshold inquiry” before posing the “substantially advances”
inquiry as a final gatekeeper before plaintiffs may
litigate the merits of a Penn Central regulatory taking claim:
3. The character of the government action.
If, after balancing these considerations, the
court determines that a taking has occurred,
just compensation is required.
Thus, Guimont requires the satisfaction of two
threshold inquiries and an affirmation that a challenged regulation substantially advances a legitimate state interest before state courts ever even
reach Penn Central’s factual inquiry. Under Lingle’s
clear pronouncement that due process and takings
analyses should no longer commingle, the Guimont
test is constitutionally invalid. In addition to retaining the rejected “substantially advances” inquiry, Guimont’s second threshold inquiry sounds in
due process reasonableness rather than regulatory
takings because it provides no help in determining
whether the regulation is the “functional equivalent” of a government appropriation or invasion.
Finally, the existence of Guimont’s two “threshold”
inquiries bars a plaintiff from immediately making
out a Penn Central regulatory takings claim when,
as quoted above, the Lingle Court had been careful
to reassure Fifth Amendment takings plaintiffs of
the remaining, direct availability of the Penn Central
test.
Guimont Step 1: The court engages in a two-part
threshold inquiry.
(1)Does the challenged regulation destroy or
derogate a fundamental attribute of property ownership including the right to possess,
to exclude others, to dispose of others, or to
make some economically viable use of the
property.
If the answer is “yes,” the court conducts a
takings analysis.
If the answer is “no,” the court proceeds to
the second threshold inquiry.
(2)Does the challenged regulation safeguard
the public interest in health, safety, the environment or the fiscal integrity of an area,
or does the challenged regulation seek less
to prevent a harm than to impose on those
regulated the requirement of providing an
affirmative public benefit?
If the answer is “the regulation seeks more
to impose on those regulated the requireMay 2012 ment providing an affirmative public benefit,” the court conducts a takings analysis.
If the answer is “the regulation seeks more
to safeguard the public interest,” there is no
taking, and the analysis ends.
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III.The Washington Courts’ Adherence to
the Guimont Construct Blocks Litigants
from the Lingle-Endorsed Direct Takings
Analyses.
claimed that a newly-acquired parcel should have
been deemed buildable. Although his as-applied
challenge was not yet ripe, the court laid out the
structure of the takings analysis, again citing Guimont’s two-part threshold inquiry and the Linglerejected “substantially advances” test without even
acknowledging the applicability of Lingle.
2005: City of Des Moines v. Gray Businesses,
L.L.C., 130 Wn. App. 600, 124 P.3d 324 (2005). The
dissent in Gray Businesses recognized that Lingle
simplified the takings analyses, suggesting that the
Lingle test would ultimately replace the Guimont
structure.
Since the Lingle decision—now nearly seven
years old—Washington has not altered its inconsistent Guimont Fifth Amendment takings claim construct. As a result, and as illustrated in the following
examples, takings challenges decided in Washington state court have been curtailed.
2011: Thun v. City of Bonney Lake, 164 Wn.
App. 755, 265 P.3d 207 (2011). In Thun, the plaintiff claimed a taking under Article I, Section 16 of
the Washington Constitution when undeveloped
property he owned was downzoned from allowing 20 housing units per acre to only allowing one
housing unit per 20 acres. Division II of the Court
of Appeals correctly noted that Lingle had removed
the “substantially advances” test from the federal
courts’ constitutional analysis, but it declined to
apply Lingle to the state constitutional claim, continuing to follow Guimont. 164 Wn. App. at 760
n.4 (“the effect of [Lingle] on takings claims under
the Washington Constitution is as yet undecided”).
There are two fundamental problems with Thun’s
announced divorce of Lingle from the state takings
claim that was alleged. First, the Guimont test is a
federal Fifth Amendment takings claim test, not a
Washington state constitution test.14 Second, here
was an opportunity for the plaintiff to argue that
the state constitutional takings provision must be
interpreted to afford him at least as much takings
protection as available under the Fifth Amendment. In other words, if Lingle means that a Fifth
Amendment takings plaintiff can proceed directly
on a Penn Central regulatory analysis, then so must
a parallel state constitutional provision.
2011: Star Northwest, Inc. v. City of Kenmore,
2011 Wn. App. LEXIS 800 (Apr. 4, 2011).15 In an
unpublished opinion, Division I of the Court of
Appeals affirmed summary judgment dismissal precluding the plaintiff from advancing its Penn Central regulatory takings claim. The court determined
that the plaintiff, as the owner of a social card
room, operated a “vice-like” business the closure
of which—by nature of gambling’s historical disfavor—yielded a “no” under the second Guimont
threshold test, ending the Guimont analysis. Division I acknowledged the plaintiff’s argument that
part of Guimont’s analysis did not survive Lingle, but
it declined to examine or apply Lingle. 2011 Wn.
LEXIS 800 at *21, n.31. The Washington Supreme
Court denied review. 2011 Wn. LEXIS 729 (Sept. 7,
2011). Thus, plaintiff Star Northwest was deprived
of its day in court to put on its evidence supporting
the three Penn Central factors. A proper application
of Lingle would have allowed Star Northwest this
access to justice.
2011: Olson v. Pierce County, 2011 Wn. App. LEXIS 256 (Jan. 25, 2011). In an unpublished opinion
by Division II of the Court of Appeals, a landowner
May 2012
IV.Conclusion
The United States Supreme Court’s opinion in
Lingle v. Chevron U.S.A., Inc. demands alteration of
Washington’s Guimont v. Clarke takings analysis.
The two-part threshold inquiry prevents plaintiffs from reaching Penn Central regulatory takings
analyses. Even plaintiffs who succeed beyond the
two-part threshold inquiry remain subjected to the
“substantially advances” question squarely rejected
in Lingle. Now seven years after the Lingle decision,
the Washington Supreme Court should soon hear
and decide a regulatory takings claim case that presents the Court with an opportunity to extract due
process inquiries from Washington courts’ takings
analyses.
Paul J. Dayton and Leslie Clark chair the Commercial
and Appellate Litigation practice group at Short Cressman & Burgess PLLC. Paul and Leslie have represented
both public and private sector clients on issues relating
to the Fifth Amendment takings clause and previously
wrote on this subject in the May 2007 issue of this publication.
1 544 U.S. 528 (2005).
2 447 U.S. 255 (1980).
3 Id.
4 Id.
5 Id. at 536-37.
6 505 U.S. 1003 (1992).
7 438 U.S. 104 (1978) (hereinafter “Penn Central”).
8 544 U.S. at 540.
9 447 U.S. at 260.
10Id. at 540.
11Id.
12121 Wn.2d 586, 854 P.2d 1 (1993).
13The Guimont court clarified that its decision addressed
only takings claims brought under the Federal Constitution, as the plaintiffs had not engaged in necessary
briefing of the analogous State Constitution provisions.
14See footnote 13 supra.
15The authors disclose that they represented the plaintiff-appellant, Star Northwest, Inc., in the litigation
against the City of Kenmore.
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