Manufactured Housing Communities of Wash. v. State

• Decision Date: 27 February 1998
• Docket Number: No. 21705-8-II,21705-8-II
• Citation: 951 P.2d 1142,90 Wn.App. 257
• Court: Washington Court of Appeals
• Parties: MANUFACTURED HOUSING COMMUNITIES OF WASHINGTON, a nonprofit Washington corporation, Appellant, v. STATE of Washington; and Mobile Home Owners of American, Inc., a corporation, Respondents.

Page 257

90 Wn.App. 257

951 P.2d 1142

MANUFACTURED HOUSING COMMUNITIES OF WASHINGTON, a nonprofit Washington corporation, Appellant, v. STATE of Washington; and Mobile Home Owners of American Inc., a corporation, Respondents.

No. 21705-8-II.

Court of Appeals of Washington Division 2.

Feb. 27, 1998.

Reconsideration Denied April 7, 1998.

Joseph John Randazzo, Assistant Attorney General, Olympia, Dan Robert Young, Bjorklund & Young, Seattle, for Respondents.

John Douglas Blankinship, Montgomery Purdue Blankinship & Austin, Seattle, for Appellant.

SEINFELD, Judge.

Manufactured Housing Communities of Washington brought this facial challenge to the constitutionality of RCW 59.23, the Mobile Home Parks--Resident Ownership Act, a statute that grants mobile home park residents a right to purchase the park if the park owner decides to sell. Finding no unconstitutional taking of property under the Washington State or United States Constitution, we affirm the trial court's dismissal of the action.

FACTS

Manufactured Housing Communities (the Park Owners) is a nonprofit corporation representing the interests of mobile home park owners. The Park Owners filed this declaratory judgment action in superior court, arguing that the Act allows a taking of property without just compensation under both the state and federal constitutions.

After the trial court denied the Park Owners' motion for summary judgment and dismissed the action, the Park Owners brought this appeal. They contend that the Act derogates, infringes upon, or impairs their fundamental ownership right to possess, exclude others, and dispose of their property, and thus, constitutes an unconstitutional taking. They also argue that Article I, Section 16, of the Washington State Constitution provides greater protection against takings than does the Fifth Amendment of the United States Constitution. Accordingly, the Park Owners ask this court to reverse the trial court's ruling and invalidate the Act.

Standard of Review

When reviewing an appeal from summary judgment, an appellate court engages in the same analysis as the trial court. Margola Assoc. v. City of Seattle, 121 Wash.2d 625, 634, 854 P.2d 23 (1993). Issues of law are reviewed de novo; issues of fact are reviewed in the light most favorable to the nonmoving party. Margola, 121 Wash.2d at 634, 854 P.2d 23. As this is a facial challenge, there are no facts in dispute.

The Act

In 1993, the Washington State Legislature adopted RCW 59.23, which allows tenants of mobile home parks to exercise a right of first refusal if the park owner decides to sell the park. RCW 59.23.025. It found that mobile home park housing provides a valuable source of affordable housing and that the availability of sites for such housing was becoming "increasingly ... insecure." See RCW 59.23.005.

To exercise their right of first refusal, the tenants must organize into a "qualified tenant organization" and give written notice to the owner that they "have a present and continuing desire to purchase the mobile home park." RCW 59.23.015. A park owner who has received such notice must, upon reaching an agreement with a third party to sell the park, notify the tenants of the pending sale and disclose the terms. The tenant organization then has 30 days from receipt of notice to produce two percent of the agreed purchase price under the original agreement, along with a "fully executed purchase and sale agreement at least as favorable to the park owner as the original agreement." ¹ RCW 59.23.025.

If the tenants perform as stated, the owner must sell the park to the tenants. RCW 59.23.025. If the tenants fail to perform under the terms of their contract, the owner may proceed with a sale to any other party pursuant to the contract terms. RCW 59.23.025. If the owner fails to notify the tenants of a pending third party sale, the sale is voidable upon application to superior court. RCW 59.23.030.

I. ARTICLE I, SECTION 16 : Gunwall ANALYSIS

According to the Park Owners, the textual and historical differences between Article I, Section 16, of the Washington State Constitution and the Fifth Amendment of the United States Constitution takings clause demonstrate that the drafters of the state constitution intended to afford Washington residents greater protection than the federal document provides. The Park Owners support their argument with a Gunwall analysis. State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Thus, we first analyze the state constitution. Malyon v. Pierce County, 131 Wash.2d 779, 791, 935 P.2d 1272 (1997).

Washington courts have recognized that Article I, Section 16, of the Washington State Constitution extends protection equivalent to the takings clause of the Fifth Amendment. Orion Corp. v. State, 109 Wash.2d 621, 657, 747 P.2d 1062 (1987). But the courts have not addressed whether the state constitution provides greater protection. The State contends that the theories underlying regulatory takings arose from federal constitutional jurisprudence and that the text and the history of Article I, Section 16, reveal that the framers intended this provision to control only formal eminent domain proceedings.

The Text of the State Constitution and its Parallels with

the Federal Document

We begin by examining the six nonexclusive factors set forth in Gunwall. 106 Wash.2d at 58, 720 P.2d 808. The first two are: (1) the textual language of the state constitutional provision at issue and (2) differences in the parallel texts of the federal and state constitutions.

The takings clause of the Fifth Amendment states succinctly: "nor shall private property be taken for public use without just compensation." Article I, Section 16, of the Washington State Constitution, on the other hand, provides more specificity:

Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. 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: Provided, That the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use.

The Park Owners contend that the state framers intended Article I, Section 16, to provide greater protection because it prohibits the State from "tak[ing] or damag[ing]" private property without just compensation, while the federal clause prohibits only the "tak[ing]" of private property. They argue that the greater detail set forth in the state clause further demonstrates this intent.

The State acknowledges the differences in the texts, but notes that the majority of these differences relate to procedures governing formal eminent domain proceedings, as opposed to substantive rights. For instance, Article I, Section 16, requires the State to pay compensation to the court on behalf of the property owner before initiating condemnation proceedings. The State further notes that the concept of a regulatory taking, like the one at issue here, first arose from an interpretation of the federal takings clause in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414-15, 43 S.Ct. 158, 160, 67 L.Ed. 322, 28 A.L.R. 1321 (1922), and postdates the adoption of the state constitution by over 30 years. Richard S. Settle, Regulatory Taking Doctrine in Washington: Now You See It, Now You Don't, 12 U. Puget Sound L.Rev. 339, 347 (1989).

We find the State's argument more compelling. These factors favor finding that the state constitution's protection against regulatory takings is coextensive with the Fifth Amendment provision.

State Constitutional and Common Law History

We next consider the third Gunwall factor, state constitutional and common law history. The Park Owners contend that because the federal constitution predates the state constitution, the state drafters presumably knew the contents of the federal document and consciously chose to make a more detailed and comprehensive eminent domain provision.

The State, on the other hand, argues that in 1889, when the state constitution was adopted, citizens had little recourse for injuries to private property resulting from State action, see Brown v. City of Seattle, 5 Wash. 35, 38, 31 P. 313 (1893), and that the Fifth Amendment's takings clause did not extend to the states until the Supreme Court's ruling in Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 586, 41 L.Ed. 979 (1897) (holding that the Fourteenth Amendment's due process clause makes federal takings clause applicable to states). Before the adoption of Washington's Constitution, most courts in states with constitutions that contained provisions identical to the federal takings clause narrowly interpreted the term "taking." Brown, 5 Wash. at 39, 31 P. 313. Accordingly, these states had to compensate property owners only for the physical occupation of their property, unless the claimant could prove that the government acted negligently or exceeded the its scope of authority. Brown, 5 Wash. at 39, 31 P. 313.

In response, Washington's state framers adopted a detailed eminent...