Garneau

concurring in part and dissenting in part.

I join Part IV of the court’s opinion regarding the district court’s discovery rulings. As to Parts II and III, however, which discuss the constitutionality of the Tenant Relocation Assistance Ordinance (“TRAO”), I respectfully dissent.

I

Nollan v. California Coastal Commission, 483 U.S. 825, 831-37 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 386-91 , 114 S.Ct. 2309 , 129 L.Ed.2d 304 (1994), outline the steps a court should take in determining the constitutionality of a government’s exaction of private property made in exchange for a development permit. In essence, the exaction is unconstitutional when it (a) would be an outright taking in the absence of any exchange for the development permit, and (b) is not “roughly proportional” to the harms caused by the proposed development. Regrettably, the court finds Nollan and Dolan to be inapplicable for two reasons, which I shall address in turn.

A

The court first concludes that Nollan and Dolan pertain only to as-applied takings challenges, not to facial takings challenges. The analysis goes as follows: (1) the Nollan “nexus” test and the Dolan…

concurring.

I concur in the result but wish to set forth my reasoning separately.

I

The Tenant Relocation Assistance Ordinance (“TRAO”) and its enabling legislation, ROW 59.18.440, like thousands of other ordinances and statutes imposing fees and penalties, call for the payment of money, not the dedication of “property” for which just compensation can logically be paid. The lack of a just compensation remedy should activate the jurisprudential alarms and warn us that appellants’ claim falls not within the confines of the Fifth Amendment, which prevents governments from taking property without just compensation, but within the scope of the Fourteenth Amendment, which prevents states from taking property without due process of law.

The just compensation clause of the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” 1 The plain language of this clause guarantees property owners a monetary remedy in the event the government wishes to use their property for some public purpose. With the exception of the public purpose requirement, the clause omits any language relating to a substantive limit on government action. As…

In this ease we are asked to decide whether the enactment of the Tenant Relocation Assistance Ordinance by the City of Seattle effected a taking of property in violation of the Fifth and Fourteenth Amendments.

*804 I.

A.

During the 1980s, Seattle area low-income tenants were hurt by a booming redevelopment market that led to a sharp increase in rental prices and a corresponding decrease in the number of rental units affordable to low-income tenants. In 1990, as part of the Growth Management Act, the Washington State Legislature adopted legislation enabling municipal governments to enact relocation assistance provisions. RCW 59.18.440. In relevant part, the enabling legislation authorizes certain local jurisdictions:

RCW 59.18.440(1)

Through this legislation, the state hoped to encourage economic opportunity for all Washington citizens and to promote the availability of affordable housing as well as to preserve existing housing stocks. Washington Laws, 1990, 1st Ex.Sess., Ch. 17, § 2(4) and (5).

In July 1990, the City of Seattle took advantage of the State’s enabling legislation by promulgating the Tenant Relocation Assistance Ordinance (“TRAO”), which requires landlords to…