Takings and due process in Laurel Park Community: public burdens on private shoulders
Author: Daniel Himebaugh
PLF recently filed this amicus brief in a case called Laurel Park Community, LLC v. City of Tukwila. In our brief, we support several mobile home park owners in their effort to overturn a city ordinance that essentially prohibits them from using their property for anything but mobile home parks. The ordinance is a problem for the park owners, who believe they should be allowed to change the use of their property, especially if operating a mobile home park becomes economically infeasible.
The city has argued that its ordinance is needed to make affordable housing available to its residents. Even so, the park owners assert that the ordinance is a taking of their property for which they must be compensated; or in the alternative, a violation of their due process rights. We agree with the park owners on both counts.
With respect to the takings claim, the court must look to the "character" — fairness — of the ordinance. We argue that the ordinance should be seen as a taking under this character inquiry because it singles out a few park owners to shoulder the entire public burden of providing for affordable housing in Tukwila. Our argument is consistent with Armstrong v. United States, in which the Supreme Court famously remarked that the constitutional "guarantee that private property shall not be taken for a public use without just compensation 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." The basic idea is that the government must compensate individuals when it takes their property for public use to ensure those individuals will not bear the entire cost of the public use for which their property is being sacrificed. But the danger comtemplated by Armstrong is exactly what is going on here — the city is trying to conveniently solve a perceived housing problem by forcing a targeted group of private property owners to provide a specific kind of housing against their will, and without compensation for the losses caused by the policy.
Interestingly, the character aspect of the takings analysis dovetails with the park owners' due process claim. Under Washington's due process test, a regulation must not be "unduly oppressive" to the property owner. Otherwise, the regulation is said to deprive the owner of his property without due process of law.
We argue in our amicus brief that Tukwila's ordinance stands in opposition to several Washington decisions that invalidated land use regulations for being unduly oppressive. In Guimont v. Clarke, for example, the Supreme Court of Washington invalidated a law requiring owners of mobile home parks to pay relocation assistance fees to tenants if the owner closed the park or converted it to a different use. The court's decision in that case hinged on its view that "the costs of relocating mobile home owners, like the related and more general problems of maintaining an adequate supply of low income housing, are more properly the burden of society as a whole than of the individual property owners." Similarly, in both Robinson v. City of Seattle and Sintra, Inc. v. City of Seattle, the court invalidated an ordinance requiring property owners to pay substantial fees to fund low-income housing before converting property to a different use. Again, the court's reasoning rested on the proposition that "solving the problem of the decrease in affordable . . . housing . . . is a burden to be shouldered commonly and not imposed on individual property owners." Tukwila's ordinance is no different. In fact, it is more restrictive than the ordinances invalidated in Guimont, Robinson, and Sintra because it bars conversion by outlawing economically viable alternative uses for the park owners' property.
In their effort to provide affordable housing, cities may not take private property without paying just compensation, or deprive individuals of their property without due process of law. There are simply no shortcuts when it comes to these constitutional guarantees.
Laurel Park Community is Ninth Circuit case no. 11-35466. The city's answering brief is due to be filed October 11, 2011.