Laurel Park Community, LLC, et al v. City of Tumwater

Filing

FILED OPINION (JOHN Judge: JTN On panel but did not write, Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8379016]--[COURT UPDATE: To attach post-judgment information; resent NDA - 10/29/2012 by HH]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAUREL PARK COMMUNITY, LLC, a
Washington limited liability
company; TUMWATER ESTATES
INVESTORS, a California limited
partnership; VELKOMMEN MOBILE
PARK, LLC, a Washington limited
liability company; and
MANUFACTURED HOUSING
COMMUNITIES OF WASHINGTON, a
Washington nonprofit corporation,
Plaintiffs-Appellants,
v.
CITY OF TUMWATER, a municipal
corporation,
Defendant-Appellee.





No. 11-35466
D.C. No.
3:09-cv-05312-BHS
OPINION



Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
August 8, 2012—Seattle, Washington
Filed October 29, 2012
Before: John T. Noonan, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Graber

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COUNSEL
Philip A. Talmadge, Talmadge/Fitzpatrick PLLC, Tukwila,
Washington, for the plaintiffs-appellants.
Jeffrey S. Myers, Law, Lyman, Daniel, Kamerrer & Bogdanovich, P.S., Olympia, Washington, for the defendantappellee.
Daniel A. Himebaugh, Pacific Legal Foundation, Bellevue,
Washington, for the amicus curiae.

OPINION
GRABER, Circuit Judge:
Defendant City of Tumwater enacted two ordinances that
seek to preserve the existing stock of manufactured home

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parks within the municipality by limiting the uses of certain
properties. Plaintiffs are three of the affected property owners
—Laurel Park Community, LLC; Tumwater Estates Investors; and Velkommen Mobile Park, LLC—and a nonprofit
entity, Manufactured Housing Communities of Washington.
Plaintiffs allege that the ordinances, on their face, violate various constitutional provisions. The district court held that the
facial constitutional challenges fail and granted summary
judgment to Defendant. On de novo review, Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1205 (9th Cir.
2012), we affirm.
FACTUAL AND PROCEDURAL HISTORY
A.

Manufactured Homes

The term “manufactured homes” describes a type of housing that typically is not constructed at the installation site. See
generally Werner Z. Hirsch & Joel G. Hirsch, LegalEconomic Analysis of Rent Controls in a Mobile Home Context: Placement Values and Vacancy Decontrol, 35 U.C.L.A.
L. Rev. 399 (1988). Originally called “mobile homes,” early
versions were no more than travel trailers hitched to the back
of a car. Mobile homes can be moved from one site to
another, allowing the owner to change locations without
changing housing.
Over time, however, the predominant use of this type of
housing began to shift toward a more fixed use. Occupants
installed a “mobile” home in a fixed location and lived in it
year-round. In 1974, recognizing that these homes were more
akin to permanent dwellings than to travel trailers, Congress
enacted the National Mobile Home Construction and Safety
Standards Act of 1974, Pub. L. No. 93-383, 1974 S. 3066,
§§ 601-628 (now codified at 42 U.S.C. §§ 5401-5426). That
statute authorized the Department of Housing and Urban
Development to regulate the construction and safety of mobile
homes. In 1980, Congress replaced nearly all references to

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“mobile home” with “manufactured home.” Pub. L. No. 96399, § 308(c).
As the Supreme Court has noted, “[t]he term ‘mobile
home’ is somewhat misleading.” Yee v. City of Escondido,
503 U.S. 519, 523 (1992).
Mobile homes are largely immobile as a practical
matter, because the cost of moving one is often a significant fraction of the value of the mobile home
itself. They are generally placed permanently in
parks; once in place, only about 1 in every 100
mobile homes is ever moved.
Id.; see also Manufactured Hous. Cmtys. of Wash. v. State, 13
P.3d 183, 206 (Wash. 2000) (Talmadge, J., dissenting)
(“Mobile homes are not mobile. The term is a vestige of earlier times when mobile homes were more like today’s recreational vehicles. Today mobile homes are designed to be
placed permanently on a pad and maintained there for life.”
(internal quotation marks omitted)).
The Supreme Court has described the typical arrangement
between a mobile home’s owner and a mobile home park’s
owner:
A mobile home owner typically rents a plot of land,
called a “pad,” from the owner of a mobile home
park. The park owner provides private roads within
the park, common facilities such as washing
machines or a swimming pool, and often utilities.
The mobile home owner often invests in site-specific
improvements such as a driveway, steps, walkways,
porches, or landscaping.
Yee, 503 U.S. at 523; see also Manufactured Hous., 13 P.3d
at 206 (Talmadge, J., dissenting) (“In most instances a mobile
home owner in a park is required to remove the wheels and

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anchor the home to the ground in order to facilitate connections with electricity, water and sewerage.” (internal quotation
marks omitted)).
Given the “site-specific improvements,” Yee, 503 U.S. at
523, and the fact that “mobile homes are designed to be
placed permanently on a pad and maintained there for life,”
Manufactured Hous., 13 P.3d at 206 (Talmadge, J., dissenting), it is not surprising that the costs of relocating a mobile
home are very high. “Once ‘planted’ and ‘plugged in,’
[mobile homes] are not easily relocated.” Id. (internal quotation marks omitted). For example, “[p]hysically moving a
double- or triple-wide mobile home involves unsealing;
unroofing the roofed-over seams; mechanically separating the
sections; disconnecting plumbing and other utilities; removing
carports, porches, and similar fixtures; and lifting the home
off its foundation or supports.” Id. (internal quotation marks
omitted).
Because they cost less than traditional homes (less even
than rental housing in some circumstances), manufactured
homes are an attractive option for lower-income and poorer
residents. “Mobile home residents are typically poorer than
the average rental household, with incomes lower by onethird.” Id. at 207 (internal quotation marks omitted).
The combination of those factors—the “immobility of
mobile homes,” id. at 206, the resulting high costs of relocation, the fact that mobile home owners typically do not own
their pads, and the limited financial resources of many owners
of mobile homes—has led to a well-documented problem
when the owner of a mobile home park wants to convert the
property to a different use:
The effects on mobile home owners . . . faced with
moving because mobile home park owners . . . want
to convert a mobile home park to another use can be
devastating. A home owner owns the mobile home,

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but only rents the land on which it sits. Closure and
conversion of a mobile home park force the owner
either to move, or to abandon what may be his most
valuable equity investment, a mobile home, to the
developer’s bulldozer. Displacement from a mobile
home park can mean economic ruin for a mobile
home owner.
....
. . . [Moreover,] there is a major shortage of space
for mobile homes. Thus the owner who needs to rent
a lot for his mobile home has no choice but to enter
the “park owner’s market” in which the demand for
space far exceeds the supply of available lots.
Id. at 206-07 (citations and internal quotation marks omitted).
As a result, many states and municipalities have enacted
laws aimed at protecting owners of manufactured homes.
Those actions, though, often impinge on the property rights of
the owners of mobile home parks, sometimes to such a degree
that the legislation amounts to a constitutional violation.
In the state of Washington, an average of 5.8 mobile home
parks closed every year between 1989 and 2002. That average
rose to 14 park closures per year between 2003 and 2008. The
number of closures is not surprising, given the high level of
residential development during those years. As some of the
Plaintiffs here candidly admit, one investment strategy for
mobile home parks is to purchase land located in the path of
development. The rental income from the mobile home pads
provides steady income and, if the land’s value rises as development surrounds the park, the park’s owner can sell the land
or convert it to other, more profitable uses, such as multifamily housing.
The Washington legislature responded to the large number
of park closures by enacting, first, the Mobile Home Reloca-

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tion Assistance Act, Wash. Rev. Code § 59.21, 1989 Wash.
Sess. Laws, ch. 201. “When a mobile home park is closed,
this law requires the park owner to contribute money toward
the tenants’ relocation costs.” Guimont v. Clarke, 854 P.2d 1,
3 (Wash. 1993). The Washington Supreme Court held that
“the Act is unduly oppressive and violates substantive due
process.” Id. at 16. The court invalidated the law in its
entirety. Id. at 16-17.
Next, the Washington legislature enacted a law that “gives
mobile home park tenants a right of first refusal when the
park owner decides to sell a mobile home park.” Manufactured Hous., 13 P.3d at 185 (citing Wash. Rev. Code
§ 59.23.025 (2000)). The Washington Supreme Court invalidated that law, too, this time holding that “the statutory grant
of a right of first refusal to tenants of mobile home parks[ ]
amounts to a taking and transfer of private property.” Id. at
196. Although some protections for owners of mobile homes
remain on the books in Washington, they are mostly procedural, such as the requirement that, before closure of a mobile
home park, the park’s owner must give at least 12 months’
notice to all residents of the park. Wash. Rev. Code
§ 59.21.030.
B.

Tumwater’s Ordinances

Tumwater contains ten manufactured home parks. The
parks are located throughout Tumwater, and none appears to
border any other park. Three of the parks are very small and
do not have a name apart from their respective addresses. The
remaining seven are named Laurel Park, Tumwater Mobile
Estates, Velkommen, Eagles Landing, Western Plaza, Thunderbird Villa, and Allimor Carriage Estates.
Against the backdrop of increasing closures of manufactured home parks in Washington and the limited constitutionally valid statutory protections, the Tumwater City Council
began hearing concerns from residents that some of the own-

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ers of Tumwater manufactured home parks had plans to close.
Tumwater residents expressed their views at several public
meetings. Mobile home owners tended to seek protection
from park closures, while park owners tended to emphasize
respect for private property and the legal limits on property
restrictions.
The City Council ultimately enacted two ordinances. Ordinance No. O2008-027 amended the Tumwater Comprehensive Plan and the Tumwater Zoning Map. Ordinance No.
O2008-009 amended the Tumwater City Code. The ordinances create a new Manufactured Home Park land use designation (“MHP”) and a new Manufactured Home Park zone
district.
The ordinances designate six of the ten existing Manufactured Home Parks—Laurel Park, Tumwater Mobile Estates,
Velkommen, Eagles Landing, Western Plaza, and Thunderbird Villa—under the new land use designation and include
those properties, and only those properties, as the new Manufactured Home Park zone district. Before the enactment of the
ordinances, the zoning code permitted a wide range of uses on
the properties, including multi-family residences and other
dense types of development. The ordinances restrict those
uses in the following relevant ways.
First, the ordinances specify certain “permitted uses,”
which are allowed as of right: manufactured home parks, one
single-family dwelling per lot, parks, trails, open spaces, other
recreational uses, family child care homes, and child mini-day
care centers. Second, the ordinances specify 11 “conditional
uses,” which are allowed via a discretionary conditional use
permit: churches, wireless communication facilities, cemeteries, child day care centers, schools, neighborhood community
centers, neighborhood-oriented commercial centers, emergency communications towers, group foster homes, agriculture, and bed and breakfast establishments. Third, the
ordinances permit still other uses if specified criteria are met:

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“The City Council may approve the property owner’s request
for a use exception if the property owner demonstrates a. they
do not have reasonable use of their property under the MHP
zoning; or b. the uses authorized by the MHP zoning are not
economically viable at the property’s location.”
The stated “intent” of the ordinances is: “The Manufactured
Home Park (MHP) zone district is established to promote residential development that is high density, single family in
character and developed to offer a choice in land tenancy. The
MHP zone is intended to provide sufficient land for manufactured homes in manufactured home parks.”
The ordinances include many explanations for the creation
of the new land use designation and zone district and the
inclusion of existing manufactured home parks in the district.
Most relevant here, the ordinances state that applying the new
designation and zone district to existing manufactured home
parks is consistent with a wide range of goals and policies
included in various documents, such as the Tumwater Comprehensive Plan. They also state that:
•

“applying the Manufactured Home Park land use
designation and zone district to existing manufactured/mobile home parks will help to ensure a
sufficient supply of land for these types of uses
in the future”

•

“manufactured home parks are a source of affordable single family and senior housing in Tumwater,” and “protecting manufactured home
parks from the pressures of development will
help to maintain the existing stock of manufactured housing provided by these ‘parks.’ ”

•

“the manufactured/mobile home parks known as
Eagles Landing, Laural [sic] Park, Tumwater
Mobile Estates, Thunderbird Villa, Velkommen,

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and Western Plaza are located within residential
neighborhoods and currently have residential
zoning and are easily recognized as traditional
manufactured housing communities.”
•

“applying the Manufactured Home Park zone to
the six traditional mobile/manufactured home
parks . . . is consistent with [a stated policy] to
support healthy residential neighborhoods which
continue to reflect a high degree of pride in ownership or residency” and “is consistent with [a
stated policy] to support the stability of established residential neighborhoods”

The ordinances exclude the three small, unnamed parks, in
part because “the small size of these three ‘parks’ does not
foster a sense of community or neighborhood, and the owners
of these three small ‘parks’ appear to own all of the dwellings
located on the properties which contrasts sharply with the rest
of the more traditional mobile/manufactured home parks in
Tumwater where the majority of dwellings are not owned by
the land owner.” The ordinances excluded the seventh named
park—Allimor Carriage Estates (“Allimor”)—because it “is
currently the only mobile/manufactured home park within
Tumwater that is zoned General Commercial, the only ‘park’
that is almost completely surrounded by General Commercial
zoning, and the only ‘park’ that abuts intensive commercial
development in the form of commercial strip development
and intensive large scale commercial retail including Albertsons, Costco, and Fred Meyer.”
C.

Procedural History

The owners of three of the six newly designated Manufactured Home Parks—Laurel Park, Tumwater Estates, and
Velkommen—along with the nonprofit Manufactured Housing Communities of Washington, filed this action in federal

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district court.1 Plaintiffs allege that the enactment of the ordinances violated their constitutional rights under several theories. The district court granted summary judgment to
Defendant on all claims and entered final judgment. Plaintiffs
timely appeal.
DISCUSSION
Although Plaintiffs raised a number of theories before the
district court, they have limited their appeal to three claims:
(1) a federal takings claim, (2) a state takings claim, and (3)
a state substantive due process claim.2
A.

Federal Takings Claim

The Fifth Amendment provides, “nor shall private property
be taken for public use, without just compensation.” There are
two types of “per se” takings: (1) permanent physical invasion
of the property, Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 426 (1982); and (2) a deprivation of all
economically beneficial use of the property, Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1015-16 (1992). Plaintiffs do
not contend that the ordinances constitute a “per se” taking.
They argue, instead, that the ordinances constitute a regulatory taking because the ordinances go “too far.” Pa. Coal Co.
v. Mahon, 260 U.S. 393, 415 (1922).
1

Plaintiffs also filed a petition for review with the state administrative
agency, alleging certain state-law violations. The agency found that
Defendant had violated certain state-law provisions but declined to reach,
for lack of jurisdiction, the constitutional issues. Those administrative proceedings are not part of this appeal.
2
Plaintiffs also argue that the district court abused its discretion by
granting a motion to quash certain notices of deposition filed by Plaintiffs.
See Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 813 (9th Cir.
2003) (holding that we review for abuse of discretion a district court’s
decision on a motion to quash). We hold that the district court did not
abuse its discretion. The evidence sought is either known to Plaintiffs or
is irrelevant to the facial challenges.

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[1] As a general rule, zoning laws do not constitute a taking, even though they affect real property interests: “[T]his
Court has upheld land-use regulations that destroyed or
adversely affected recognized real property interests. Zoning
laws are, of course, the classic example, which have been
viewed as permissible governmental action even when prohibiting the most beneficial use of the property.” Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 125 (1978)
(citations omitted); see Pa. Coal, 260 U.S. at 413
(“Government hardly could go on if to some extent values
incident to property could not be diminished without paying
for every such change in the general law.”); see also Lingle
v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005) (holding
that, in considering a regulatory taking case, “we must remain
cognizant that ‘government regulation—by definition—
involves the adjustment of rights for the public good’ ” (quoting Andrus v. Allard, 444 U.S. 51, 65 (1979)).
[2] Nevertheless, as noted, regulations that go “too far”
constitute a taking. Determining whether a regulation goes too
far requires a court to engage in “essentially ad hoc, factual
inquiries.” Penn Cent., 438 U.S. at 124. “[R]egulatory takings
challenges are governed by the standards set forth in [Penn
Central].” Lingle, 544 U.S. at 538. “Primary among [the relevant] factors are [1] the economic impact of the regulation on
the claimant and, particularly, [2] the extent to which the regulation has interfered with distinct investment-backed expectations. In addition, [3] the character of the governmental
action . . . may be relevant in discerning whether a taking has
occurred.” Id. at 538-39 (citation, internal quotation marks,
and brackets omitted). “[T]hese three inquiries . . . share a
common touchstone. Each 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.” Id. at 539.
At the outset, we note that Plaintiffs bring a facial challenge. It is not clear that a facial challenge can be made under

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Penn Central. Guggenheim v. City of Goleta, 638 F.3d 1111,
1118 & n.32 (9th Cir. 2010) (en banc), cert. denied, 131 S. Ct.
2455 (2011). As we did in Guggenheim, we will “assume,
without deciding, that a facial challenge can be made under
Penn Central.” Id. at 1118. We turn, then, to the three Penn
Central factors.
1.

“Economic Impact of the Regulation on the Claimant”

[3] Plaintiffs offer very little evidence of economic effect
resulting from enactment of the ordinances. At best, Plaintiffs
have presented information that reflects an economic loss of
less than 15% with respect to one of the three Plaintiff properties and no effect on the other two Plaintiff properties or the
properties of the remaining affected MHP parks.3 Although
there is no precise minimum threshold, Plaintiffs’ evidence is
of very little persuasive value in the context of a federal takings challenge. See, e.g., Cienega Gardens v. United States,
331 F.3d 1319, 1343 (Fed. Cir. 2003) (holding that a taking
occurred when a regulation effected a 96% loss of return on
equity). A small decrease in value, for only one affected property, falls comfortably within the range of permissible landuse regulations that fall far short of a constitutional taking.
See Penn Cent., 438 U.S. at 125 (“[T]his Court has upheld
land-use regulations that destroyed or adversely affected recognized real property interests.”). The Supreme Court cases
“uniformly reject the proposition that diminution in property
value, standing alone, can establish a ‘taking,’ see Euclid v.
3

The one Plaintiff property that showed a decrease in value was Velkommen. Various reports and assessments—operating under different
background assumptions—valued the park: One report assigned a preordinance value of $2.7M and a post-ordinance value of $2.4M (11.1%
decrease); one assessment assigned a pre-ordinance value of $1.8M and a
post-ordinance value of $1.6M (11.1% decrease); and a final report
assigned a pre-ordinance value of $1.675M and a post-ordinance value of
$1.45M (13.4% decrease). The other two Plaintiff properties showed no
change pre-ordinance and post-ordinance (with appraised values of $6.3M
and $4.37M, respectively).

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Ambler Realty Co., 272 U.S. 365 (1926) (75% diminution in
value caused by zoning law); Hadacheck v. Sebastian, 239
U.S. 394 (1915) (87 1/2% diminution in value).” Penn Central, 438 U.S. at 131.
[4] In sum, the minimal economic effect of the ordinances
does not support a takings claim.
2.

“Distinct Investment-backed Expectations”

[5] When Plaintiffs bought the properties, they had the
expectation that, when they desired or when market conditions made it attractive, they could convert to a more profitable use, such as multi-family housing or housing
developments. The zoning laws previously allowed such
development, and the ordinances now foreclose that option (at
least until Plaintiffs show that there are no economically viable options available under the other uses expressly permitted
by the ordinances). But those facts are no different than the
assertions that could be made by property owners adversely
affected by any zoning law. As the Supreme Court wrote in
Penn Central, “the submission that [the plaintiffs] may establish a ‘taking’ simply by showing that they have been denied
the ability to exploit a property interest that they heretofore
had believed was available for development is quite simply
untenable. Were this the rule, this Court would have erred [in
many of its previous takings cases].” Id. at 130. Of most
importance, Plaintiffs retain the ability to continue operating
the properties as manufactured home parks. “So the law does
not interfere with what must be regarded as [Plaintiffs’] primary expectation concerning the use of the parcel.” Id. at 136.
In other words, although the ordinances affected one of Plaintiffs’ expectations—that at some indefinite time in the future
they could convert their properties to some other specific uses
—the ordinances did not affect Plaintiffs’ “primary expectation.”
In Guggenheim, we held that “ ‘[d]istinct investmentbacked expectations’ implies reasonable probability, like

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expecting rent to be paid, not starry eyed hope of winning the
jackpot if the law changes.” 638 F.3d at 1120. In our view, the
ordinances at issue here fall between the two poles used in
that example. Plaintiffs’ expectation of converting their properties is speculative to a degree, because it depends on future
events (chief among them, market forces making conversion
economically attractive). But it is not as speculative as “winning the jackpot if the law changes,” because it depends only
on unknown future economic trends, not an outright change
in law. Our clarification later in the same paragraph provides
a means of assessing Plaintiffs’ expectations here: “Speculative possibilities of windfalls do not amount to ‘distinct
investment-backed expectations,’ unless they are shown to be
probable enough materially to affect the price.” Id. at
1120-21. As discussed above, the speculative possibility of
converting the properties to another use had little to no effect
on price.
[6] This factor, too, fails to support a takings claim.
3.

“The Character of the Governmental Action”

“[T]he character of the governmental action—for instance
whether it amounts to a physical invasion or instead merely
affects property interests through some public program adjusting the benefits and burdens of economic life to promote the
common good—may be relevant in discerning whether a taking has occurred.” Lingle, 544 U.S. at 539 (internal quotation
marks omitted). The government generally cannot “ ‘forc[e]
some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ”
Id. at 537 (quoting Armstrong v. United States, 364 U.S. 40,
49 (1960)).
[7] Although it is a close call, we agree with Plaintiffs that
the character of the governmental action here slightly favors
their takings claim. The intent and effect of the ordinances are
to require only Plaintiffs and the other affected owners of

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manufactured home parks to continue to provide the public
benefit (manufactured home parks), when the benefit could be
distributed more widely (for example, by providing relocation
assistance to owners of manufactured homes or a larger MHP
zone district). The ordinances do allow many other uses but,
at least at the moment, those other uses do not appear to provide truly economically attractive alternatives to the existing
manufactured home parks. As a practical matter, Plaintiffs
must continue to use their properties as manufactured home
parks. Indeed, that was the intended effect of the ordinances.
[8] That analysis goes only so far, however. Unlike in
other cases where the challenged law required continued
operation of an existing use, e.g., Cienega Gardens, 331 F.3d
at 1338-39, the ordinances here do not force Plaintiffs to continue operating their properties as manufactured home parks.
See Lingle, 544 U.S. at 537 (holding that the government cannot “forc[e] some people alone to bear public burdens”). As
just a few examples, Plaintiffs could decide to close their
parks, to convert their properties to other allowed uses, or to
sell the properties, and the ordinances have no effect on those
possibilities.
4.

Conclusion

[9] Because the first two factors weigh strongly against a
takings claim and the third factor weighs only slightly in favor
of a takings claim, we conclude that, on their face, the ordinances do not constitute a taking under the Fifth and Fourteenth Amendments. See also Guggenheim, 638 F.3d at 1120
(holding that the first two factors are the “primary” factors to
consider; the character of the governmental action is not on
equal footing).
B.

State Takings Claim

Plaintiffs next argue that, even if the ordinances do not constitute a taking under the Federal Constitution, the ordinances

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nevertheless effect a taking under the state constitution.4 Article I, section 16 of the Washington Constitution provides, in
relevant part: “No private property shall be taken or damaged
for public or private use without just compensation having
been first made . . . .”
Commentators have asserted that the Washington Supreme
Court cases that interpret that provision are confusing and that
discerning the applicable analytical framework is difficult.
Roger D. Wynne, The Path Out of Washington’s Takings
Quagmire: The Case for Adopting the Federal Takings Analysis, 86 Wash. L. Rev. 125 (2011); Jill M. Teutsch, Comment,
Taking Issue with Takings: Has the Washington State
Supreme Court Gone Too Far?, 66 Wash. L. Rev. 545 (1991);
Richard L. Settle, Regulatory Taking Doctrine in Washington:
Now You See It, Now You Don’t, 12 U. Puget Sound L. Rev.
339 (1989); see also Guimont v. City of Seattle, 896 P.2d 70,
75-76 (Wash. Ct. App. 1995) (describing the doctrine as “the
complex, confusing and often-ethereal realm of theoretical
law that has developed in Washington under the taking
clause”). Quagmire or not, we need not wade far into this area
of Washington law, because Plaintiffs advance only two specific arguments—both leaning heavily on the Washington
Supreme Court’s decision in Manufactured Housing—
concerning state takings law. We turn to that case.
[10] In Manufactured Housing, 13 P.3d at 185, the Washington Supreme Court considered the constitutionality of a
state law that “g[ave] qualified tenants a right of first refusal
to purchase a mobile home park.”5 The court held that “a right
4

The district court did not analyze this issue. Because this is a pure issue
of law that the parties have briefed fully, we decide it on the merits.
Bibeau v. Pac. Nw. Research Found. Inc., 188 F.3d 1105, 1111 n.5 (9th
Cir. 1999).
5
The court described the act as follows:
To exercise a right of first refusal, the tenants must organize
into a “qualified tenant organization” and give the park owner

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of first refusal, even one created by statute, can create an
interest in property.” Id. at 192. The court reasoned that “[a]
right of first refusal to purchase is a valuable prerogative, limiting the owner’s right to freely dispose of his property by
compelling him to offer it first to the party who has the first
right to buy.” Id. (internal quotation marks omitted). Citing a
treatise, the court concluded that “the right to grant first
refusal is a part of ‘the bundle of sticks’ which the owner
enjoys as a vested incident of ownership.” Id. at 193 (footnote
omitted). “Property is not one single right, but is composed of
several distinct rights, which each may be subject to regulation. The right of property includes four particulars: (1) right
of occupation; (2) right of excluding others; (3) right of disposition, or the right of transfer in the integral right to other persons; (4) right of transmission.” Id. (internal quotation marks
and brackets omitted). Accordingly, “the statute deprives park
owners of a fundamental attribute of ownership.” Id. at 194;
see also id. (“The instant case falls within the rule that would
generally find a taking where a regulation deprives the owner
of a fundamental attribute of property ownership.”).
written notice of “a present and continuing desire to purchase the
mobile home park.” Once the park owner has received such
notice, the park owner must notify the tenants of any agreement
to sell the park to a third party, as well as disclose the agreement’s terms. If the park owner fails to properly notify the qualified tenant organization, a pending third party sale is voidable.
Upon receiving proper notice, the tenants have 30 days in
which to pay the park owner two percent of the third party’s
agreed purchase price and to tender a purchase and sale agreement as financially favorable as the agreement between the
owner and the third party. If the tenants meet these requirements
within the 30-day period, the park owner must sell them the park.
If, however, the tenants fail to meet these requirements or if, in
the case of seller financing, the owner determines selling the park
to the tenants would create a greater financial risk than selling to
the third party, the owner may proceed with the sale to the third
party.
Manufactured Hous., 13 P.3d at 185 (citations and footnotes omitted).

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[11] The court held, additionally, that “we are persuaded
that a taking has occurred in this case not only because an
owner is deprived of a fundamental attribute of ownership,
but also because this property right is statutorily transferred”
to the park residents, who can exercise the right of first
refusal. Id. “[T]he actual effect of [the statute] is more closely
akin to the exercise of eminent domain . . . because the property right is not only taken, but it is statutorily transferred to
a private party for an alleged public use.” Id.
[12] Plaintiffs first argue that the ordinances have
destroyed one of the sticks in the bundle representing a fundamental property right, by depriving the parks’ owners of the
right to dispose of their property as they choose and effectively conferring control of that right on the tenants. We disagree. As an initial matter, the ordinances here do not at all
limit the owners’ ability freely to dispose of the property.
Indeed, one owner appears to have sold his property.
[13] The ordinances restrict to some extent the owners’
ability to use their properties, because they can no longer
build multi-family housing, for example. But imposing use
restrictions on property—as distinct from restrictions on
alienation—is the essence of zoning. The Washington
Supreme Court consistently has defined the fundamental attributes of property rights by reference to rights that do not
include the free use of the property. See id. at 193 (identifying
the fundamental rights of occupation, excluding others, disposition, and transmission); see also Guimont, 854 P.2d at 10
(“[T]he court must first ask whether the regulation destroys or
derogates any fundamental attribute of property ownership:
including the right to possess; to exclude others; or to dispose
of property.”); Presbytery of Seattle v. King County, 787 P.2d
907, 912 (Wash. 1990) (“[T]he court should ask whether the
regulation destroys one or more of the fundamental attributes
of ownership—the right to possess, to exclude others and to
dispose of property.”). Indeed, concerning use, the court has
defined a fundamental attribute of property only with respect

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to being able to make some economically viable use of the
property. See, e.g., Guimont, 854 P.2d at 10 (“[A]nother ‘fundamental attribute of property’ appears to be the right to make
some economically viable use of the property.”). Plaintiffs do
not argue, of course, that the ordinances deprive them of all
economically viable uses; they are instead being encouraged
to continue the economically viable use that they freely chose.
In sum, the ordinances do not destroy or limit any fundamental property right as defined by the Washington Supreme
Court.
Plaintiffs’ other argument is that a taking has occurred
because some property right has been transferred to the parks’
residents. As an initial matter, it is unclear whether this alternative argument is viable. The court’s discussion of the statutory transfer issue in Manufactured Housing appears to be
premised on its finding of a fundamental property right:
“[W]e are persuaded that a taking has occurred in this case
not only because an owner is deprived of a fundamental attribute of ownership, but also because this property right is statutorily transferred.” 13 P.3d at 194 (first emphasis added). In
any event, Plaintiffs’ argument fails on its own terms.
In Manufactured Housing, the statute granted the right of
first refusal to the parks’ residents. Accordingly, the residents
—and only the residents—could exercise that valuable property right. Here, the residents have no ability—now or in the
future—to require the parks’ owners to perform any act.
Nothing prohibits the owners from converting their properties
to one of the many permitted uses under the ordinances (such
as a cemetery, bed and breakfast, day care center, recreational
facility, or single-family dwelling) or from selling to a third
party. If a park owner so chose, the residents would be powerless to affect that decision.
[14] We therefore hold that the ordinances do not constitute a taking under the Washington Constitution.

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State Substantive Due Process Claim

[15] Finally, Plaintiffs argue that the ordinances violate
their state substantive due process rights. Article I, section 3
of the Washington Constitution states: “No person shall be
deprived of life, liberty, or property, without due process of
law.”
To determine whether the regulation violates due
process, the court should engage in the classic 3prong due process test and ask: (1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably
necessary to achieve that purpose; and (3) whether it
is unduly oppressive on the land owner. In other
words, 1) there must be a public problem or “evil,”
2) the regulation must tend to solve this problem,
and 3) the regulation must not be unduly oppressive
upon the person regulated. The third inquiry will
usually be the difficult and determinative one.
Presbytery, 787 P.2d at 913 (footnotes and some internal quotation marks omitted).
The first prong is “whether the regulation is aimed at
achieving a legitimate public purpose.” Id. The stated “intent”
of the ordinances is: “The Manufactured Home Park zone district is established to promote residential development that is
high density, single family in character and developed to offer
a choice in land tenancy. The MHP zone is intended to provide sufficient land for manufactured homes in manufactured
home parks.” That stated purpose is quintessentially legitimate: the organization of land uses to promote the public
goals of “high density, single family” development and a
“choice in land tenancy.” This prong is easily met. See, e.g.,
Guimont, 854 P.2d at 14 (concluding, with little discussion,
that “aid[ing] mobile home owners with relocation expenses

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when a mobile home park is closed” is a legitimate public
purpose).
The second prong is “whether [the law] uses means that are
reasonably necessary to achieve that purpose.” Presbytery,
787 P.2d at 913. In Guimont, the Washington Supreme Court
held:
Certainly, providing mobile home owners with relocation assistance would be a reasonably necessary
step in achieving the Act’s purpose. The more difficult issue here is whether it is reasonably necessary
to require the assistance to be paid by the closing
park owner. To assist in determining whether these
means used by the Act are reasonably necessary in
all regards, we must turn to the third due process
question, that of undue oppression.
854 P.2d at 14.
[16] A similar analysis applies here. The zoning changes
encourage the continued provision of manufactured home
parks, which is “[c]ertainly” a reasonably necessary step in
achieving the ordinances’ purpose. “The more difficult issue
here is whether it is reasonably necessary to require” that
development to be provided only by some of the present-day
park owners. Id. Plaintiffs have a point that the provision of
certain types of housing may be considered a burden that
should be borne more generally by the public. As in Guimont,
the answer to the reasonableness of the law depends on “the
third due process question, that of undue oppression.” Id.; see
also Presbytery, 787 P.2d at 913 (“The third inquiry will usually be the difficult and determinative one.”).
We determine if a statute is unduly oppressive by
examining a number of nonexclusive factors to
weigh the fairness of the burden being placed on the
property owner:

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On the public’s side, the seriousness of the public
problem, the extent to which the owner’s land contributes to it, the degree to which the proposed regulation solves it and the feasibility of less oppressive
solutions would all be relevant. On the owner’s side,
the amount and percentage of value loss, the extent
of remaining uses, past, present and future uses, temporary or permanent nature of the regulation, the
extent to which the owner should have anticipated
such regulation and how feasible it is for the owner
to alter present or currently planned uses.
Guimont, 854 P.2d at 14-15 (internal quotation marks omitted).
[17] Here, we conclude that the two most important factors
are the fact that the present-day effect on Plaintiffs’ property
values is little to none and the fact that Plaintiffs may continue to use their properties as they have been used for decades. It is true that Tumwater’s solution is not necessarily the
most efficient and that it concentrates the economic burden on
a relatively small number of property owners. It is also true
that the regulation is permanent (at least until future speculative amendments). But, when all is said and done, the amount
of harm is very small or nonexistent. In each case described
by Plaintiffs in which the Washington Supreme Court has
found a due process violation, the amount of measurable harm
has been great. See Guimont, 854 P.2d at 15-16 (concluding
that the relocation-assistance statute violated substantive due
process because it imposed a fee of $7,500 per pad on a park
owner who wished to close, which would amount to $750,000
for a park with 100 pads); Sintra, Inc. v. City of Seattle, 829
P.2d 765, 776-77 (Wash. 1992) (holding that imposition of a
$218,000 fee to develop a $670,000 property was unduly
oppressive).
[18] In this regard, we consider it important that Plaintiffs
have chosen to raise a facial challenge. If a particular Plaintiff

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could show a significant diminution in value of a particular
parcel of property, then the weighing of the factors might be
different. As it stands, however, the fact that Plaintiffs have
presented no evidence of diminution of value, apart from one
park that suffered a loss in value of less than 15%, severely
undermines their claim that, on their face, the ordinances are
unduly oppressive. It would be odd to conclude that an ordinance that had no economic effect on most properties was
oppressive at all, let alone unduly oppressive. For those reasons, we hold that the ordinances do not violate Washington
principles of substantive due process.
Under the heading of substantive due process, Plaintiffs
also argue that the ordinance is illegal “spot zoning”: “that an
individual piece of property was singled out for zoning
incompatible with neighboring property.” Buckles v. King
County, 191 F.3d 1127, 1137 (9th Cir. 1999).6 As an initial
matter, it is unclear whether a party can raise a “spot zoning”
challenge in the context of a facial challenge to ordinances;
we have found no Washington cases that involve a facial
“spot zoning” challenge. We assume, without deciding, that a
facial “spot zoning” challenge is viable.
[19] “Spot zoning has been consistently defined to be zoning action by which a smaller area is singled out of a larger
area or district and specially zoned for a use classification
totally different from and inconsistent with the classification
of surrounding land, and not in accordance with the comprehensive plan.” Save Our Rural Env’t v. Snohomish County,
662 P.2d 816, 819 (Wash. 1983). There is no “hard and fast
rule that all spot zoning is illegal.” Id. “[T]he main inquiry of
the court is whether the zoning action bears a substantial rela6

“Spot zoning” “is variously characterized as a substantive due process
violation, a taking, or even an equal protection violation; spot zoning does
not neatly fit into one category.” Buckles, 191 F.3d at 1137. In the absence
of any objection, we accept, for purposes of analysis, Plaintiffs’ characterization of their spot zoning claim.

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tionship to the general welfare of the affected community.”
Id. For all the reasons discussed above, there is little doubt
that the ordinances bear a substantial relationship to the general welfare of the community. Other than the original Washington “spot zoning” decision in 1969, Smith v. Skagit
County, 453 P.2d 832 (Wash. 1969), in which the court held
that placing an aluminum processing plant on an island constituted illegal spot zoning, Plaintiffs cite no case in which the
Washington courts have found illegal spot zoning. See Save
Our Rural Env’t, 662 P.2d at 819 (holding that no illegal spot
zoning occurred where a new “business park zoning classification provides a flexible means to broaden the industrial base
of the region and to produce energy and travel time savings
for employees”); Bassani v. Bd. of Cnty. Comm’rs, 853 P.2d
945, 951 (Wash. Ct. App. 1993) (holding that there was no
illegal spot zoning where the zoning was “generally consistent” with the relevant plans and was “good for the county,
and good for one of the county’s major employers”). We thus
reject Plaintiffs’ spot zoning challenge.
CONCLUSION
Plaintiffs cannot establish that the Tumwater ordinances, on
their face, effect a taking or constitute undue oppression. The
most fundamental reason why that is so is that the enactment
of the ordinances had nearly no effect on the value of their
properties. They can continue to use the properties just as they
have chosen to do for years; the new zoning ordinances allow
many alternative uses; and the new zoning ordinances contain
a “safety valve” pursuant to which Plaintiffs may pursue other
uses if the presently authorized uses are not economically viable.
AFFIRMED.