Last week, I wrote about Seattle Mayor Bruce Harrell’s modified version of his zoning-reform initiative. The policy shift away from more NIMBY-friendly land-use rules to Harrell’s “One Seattle” dream is long overdue, I insisted. After all, Seattle Metro has experienced robust growth over the past decade; a 25% increase between the 2010 and 2020 Censuses—but housing growth has not kept pace. Especially in the urban core, uber-restrictive development rules have meant almost no new construction across a huge chunk of Seattle. But limits on new construction are not the only culprit behind the ever-growing gap in Seattle between the numbers of residents and available rental units.
One real estate firm has had enough, this week filing a wide-reaching lawsuit against Seattle claiming, inter alia, that the panoply of regulations imposed on one building in particular amounts to what the U.S. Supreme Court calls a “regulatory taking”—i.e., when government imposes so many use restrictions on a property it has the same practical effect to the owner’s wallet as would an outright confiscation. This lawsuit, along with Harrell’s One Seattle and what the Seattle Times misidentified as a “rightward shift at Seattle City Hall”—“sensible” shift is a far more apt label for a City Council that is still 100% Democratic—indicates, above all, that ideological affinity only goes so far. Seattle remains an extremely progressive city, but after decades of floundering housing even the most “equity”-minded crowd reaches its breaking point. Decades of overregulation in the rental housing market have at best produced no results for Seattle, and at worst has been wholly counterproductive. As the urbanist City Journal observed: “Constraints on construction—including zoning and building codes, mandatory ‘affordable’ guidelines, and the opposition of anti-growth community groups—hamstring the capacity of the private market to respond to demand.”
This lawsuit is not the first of its kind—nor is it likely to be the last. But we need more of these. So-called “inverse condemnation” claims that are not “novel,” as the Seattle Times also misstated, but have certainly faced sharp uphill battles. Judicial bias in favor of government’s proffered legal theories is nothing new or rare, but it has taken on unprecedented dimensions in the regulatory-takings space. As I outline in a forthcoming article for George Mason University’s Journal of Law, Economics, and Policy, regulatory-takings plaintiffs tend to win at just half (at best) of the rate among any other Bill-of-Rights claimants. So filing inverse-condemnation lawsuits are not rare, nor are the theories deployed “novel”; it is simply the case that few break through and reach a reasonable jury before a judge steps in first and decides “no reasonable jury” could call this or that regulation a functional taking. This lawsuit has the support of property-rights advocates across the Pacific Northwest, notably including the Rental Housing Association of Washington. The Complaint is expertly written, offering, inter alia, that last decade “the City began adopting a series of ordinances that, together, made it virtually impossible to operate low-income housing in Seattle. While their purposes may have been to increase access to affordable housing, their result has been to ensure that low-income housing in Seattle is financially disastrous for housing providers.”
Again, at bottom this argument is hardly a novel one—despite what the Seattle Times will tell you—but given the improbable odds regulatory-takings plaintiffs face, the volume of such claims matters, though so does picking good ones and not any and all hoping that some will “stick.” As a lawyer who has dabbled in land-use law for years, this is a case that is likelier than most others to move the needle than any other recent case against Seattle land-use regulations. Yet, as always, it is an uphill battle—especially in these parts. Uphill . . . but certainly worth attempting ascent.
Alki,
Sam Spiegelman