Chong Yim v. City of Seattle ( 2019 )


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    IN CLERKS OFFICE X                                                 This opinion was
    8UPRBE COURT,SHOE OF Va%SHHId.
    After considering 
    the committee's recommendations, the Seattle City Council
    amended Seattle's Open Housing Ordinance, ch. 14.08 SMC. These amendments
    included adoption ofthe FIT rule.
    The FIT rule provides that when a Seattle property owner seeks to fill a
    tenancy, the owner must first "provide notice to a prospective occupant" of"the
    criteria the owner will use to screen prospective occupants and the minimum
    threshold for each criterion," as well as "all information, documentation, and other
    Yim etal. v. City ofSeattle,Ylo. 95813-1
    submissions necessary for the owner to conduct screening." SMC
    14.08.050(A)(l)(a)-(b). Next, the property owner must "note the date and time of
    when the owner receives a completed rental application" and "screen completed
    rental applications in chronological order." 
    Id. at (A)(2)-(3).
    "If, after conducting
    the screening, the owner needs more information than was stated in the notice," the
    owner must "notify the prospective occupant in writing, by phone, or in person of
    what additional information is needed." 
    Id. at(A)(3). Finally,
    the property owner
    must "offer tenancy of the available unit to the first prospective occupant meeting
    all the screening criteria necessary for approval of the application." 
    Id. at (A)(4).
    The first qualified applicant has 48 hours in which to accept the offer of tenancy.
    
    Id. If the
    applicant does not accept,"the owner shall review the next completed
    rental application in chronological order until a prospective occupant accepts the
    owner's offer of tenancy." 
    Id. There are
    a number of exceptions to these general procedures. No part of
    the FIT rule applies "to an accessoiy dwelling unit or detached accessory dwelling
    unit wherein the owner or person entitled to possession thereof maintains a
    permanent residence, home or abode on the same lot." 
    Id. at(F). In
    addition, an
    owner does not have to offer tenancy to the first qualified applicant if the owner "is
    legally obligated to" or "voluntarily agrees to set aside the available unit to serve
    specific vulnerable populations." 
    Id. at (A)(4)(a)-(b).
    The FIT rule also contains
    Yim et al. v. City ofSeattle, No. 95813-1
    procedures for potential occupants with disabilities to seek "additional time to
    submit a complete rental application because ofthe need to ensure meaningful
    access to the application." 
    Id. at(B). The
    FIT rule became effective on January 1, 2017, although compliance was
    not required until July 1, 2017. 
    Id. at(A),(E). On
    August 16, 2017, the plaintiffs
    filed a first amended complaint,"seeking a declaration that the City's [FIT]
    rule . . . violates the Takings, Due Process, and Free Speech Clauses of the
    Washington State Constitution, and also seeking a permanent injunction forbidding
    the City from enforcing its unconstitutional rule." CP at 19. The plaintiffs
    challenge the FIT rule only "on its face," not as applied. 
    Id. at 30,
    33.
    The parties filed cross motions for summary judgment based on a statement
    of stipulated facts and a stipulated record. The trial court ruled in favor of the
    plaintiffs on each of their claims, concluding that the FIT rule facially violates
    article I, section 16 (the takings clause), section 3 (the due process clause), and
    section 5 (the free speech clause) ofthe Washington State Constitution. The City
    appealed, and we granted direct review. Order, No. 95813-1 (Wash. Nov. 28,
    2018).
    ISSUES
    A.     Does the FIT rule facially effect a regulatory taking for purposes of
    article I, section 16?
    Yim etal. v. City ofSeattle,Y\o. 95813-1
    B.     If the FIT rule does facially effect a regulatory taking, is it for private
    use in violation of article I, section 16?
    C.     Does the FIT rule facially violate the plaintiffs' article I, section 3
    right to substantive due process?
    D.     Does the FIT rule facially violate the plaintiffs' article I, section 5
    right to free speech?
    ANALYSIS
    This case presents two important questions of state constitutional law that
    will have consequences far beyond the particular claims at issue here. First, we
    must define when a law regulating the use of property crosses the line into a
    "regulatory taking" for purposes of article I, section 16. Second, we must
    determine the standard of review that applies to article I, section 3 substantive due
    process challenges to laws regulating the use of property.
    As to the first issue, this court has always attempted to define regulatory
    takings consistently with federal courts applying the takings clause ofthe Fifth
    Amendment. U.S. CONST, amend. V. The federal definition of regulatory takings
    has been substantially clarified since we last considered the issue, such that the
    "legal underpinnings of our precedent have changed or disappeared altogether."
    W.G. Clark Constr. Co. v. Pac. Nw. Reg'I Council ofCarpenters, 
    180 Wash. 2d 54
    ,
    66, 322 P.3d 1207(2014). It has not been shown that we should adopt a
    Yim et al. v. City ofSeattle, No. 95813-1
    Washington-specific definition as a matter of independent state law at this time,
    and we therefore adopt the definition of regulatory takings set forth by the United
    States Supreme Court in Lingle v. Chevron U.S.A. Inc., 
    544 U.S. 528
    , 
    125 S. Ct. 2074
    , 
    161 L. Ed. 2d 876
    (2005), as discussed in more detail below. The following
    precedent is disavowed to the extent that it defines regulatory takings in a manner
    that is inconsistent with Chevron U.S.A.: Orion Corp. v. State, 
    109 Wash. 2d 621
    , 747
    P.2d 1062(1987); Presbytery ofSeattle v. King County, 
    114 Wash. 2d 320
    , 787 P.2d
    907(1990); Sintra, Inc. v. City ofSeattle, 
    119 Wash. 2d 1
    , 
    829 P.2d 765
    (1992);
    Robinson v. City ofSeattle, 
    119 Wash. 2d 34
    , 
    830 P.2d 318
    (1992); Guimontv.
    Clarke, 
    121 Wash. 2d 586
    , 
    854 P.2d 1
    (1993); Margola Associates v. City ofSeattle,
    
    121 Wash. 2d 625
    , 
    854 P.2d 23
    (1993); and Manufactured Housing Communities of
    Washington v. State, 
    142 Wash. 2d 347
    , 
    13 P.3d 183
    (2000)(plurality opinion).
    Regarding the second issue, as analyzed in more detail in our opinion for
    Chong Yim v. City ofSeattle, No. 96817-9(Wash. Nov. 14, 2019){Yim II), this
    court has always attempted to apply a standard of review to article I, section 3
    substantive due process claims that is consistent with the standard used by federal
    courts applying the due process clauses of the Fifth and Fourteenth Amendments to
    the United States Constitution. As with defining regulatory takings, it has not been
    shown that we should depart from federal law at this time, and we therefore apply
    Yim et al. v. City ofSeattle, No. 95813-1
    rational basis review to the plaintiffs' substantive due process challenge to the FIT
    rule.
    Turning to the specific claims presented in this case, the constitutionality of
    the FIT rule is a question of law reviewed de novo. Amunrud v. Bd. ofAppeals,
    
    158 Wash. 2d 208
    , 215, 
    143 P.3d 571
    (2006). The plaintiffs' facial takings and
    substantive due process claims cannot succeed unless the plaintiffs show that "no
    set of circumstances exists in which [the FIT rule], as currently written, can be
    constitutionally applied." City ofRedmond v. Moore, 
    151 Wash. 2d 664
    , 669, 
    91 P.3d 875
    (2004). They cannot meet that burden on the record presented, while the
    City has met its burden ofjustifying the FIT rule for puiposes ofthe plaintiffs'
    facial free speech claim. We therefore reverse and remand with instructions to
    grant the City's motion for summary judgment.
    A.      The FIT rule does not facially effect a regulatory taking
    The takings clause of the Fifth Amendment provides,"[N]or shall private
    property be taken for public use, without just compensation." U.S. CONST, amend.
    V. Likewise, article 1, section 16 provides,"No private property shall be taken or
    damaged for public or private use without just compensation having been first
    made." WASH. CONST, art. 1, § 16. Both the federal and state takings clauses allow
    for "[cjlaims of inverse condemnation by excessive regulation," otherwise known
    as "regulatory takings" claims. Orion 
    Corp., 109 Wash. 2d at 642
    .
    Yim et al. v. City ofSeattle, No. 95813-1
    Regulatory takings claims are based on the premise that "while property may
    be regulated to a certain extent, if regulation goes too far it will be recognized as a
    taking." Pa. Coal Co. v. Mahon,260 U.S. 393, 415, 
    43 S. Ct. 158
    , 
    67 L. Ed. 322
    (1922). When a regulation goes too far, it becomes "a de facto exercise of eminent
    domain," even though the private individual still actually owns and possesses the
    property. Orion 
    Corp., 109 Wash. 2d at 645
    . Such regulatory takings, like traditional
    exercises of eminent domain, require either just compensation (if the property is
    taken for public use) or invalidation of the law (if the property is taken for private
    use). Mfd. 
    Hous., 142 Wash. 2d at 362
    .
    Regulatory takings may be either "per se" or "partial." A per se regulatory
    taking is found where a regulation's impact is necessarily so onerous that the
    regulation's mere existence is, "from the landowner's point of view, the equivalent
    of a physical appropriation." Lucas v. S.C. Coastal Council, 
    505 U.S. 1003
    , 1017,
    
    112 S. Ct. 2886
    , 
    120 L. Ed. 2d 798
    (1992). As a matter of federal law, such
    categorical treatment is appropriate for only "two relatively narrow categories" of
    regulations—regulations that "require[]an owner to suffer a permanent physical
    invasion of her property" and "regulations that completely deprive an owner of'all
    economically beneficial us[e]' of her property." Chevron 
    U.S.A., 544 U.S. at 538
    Yim et al. v. City ofSeattle, No. 95813-1
    (second alteration in original)(quoting 
    Lucas, 505 U.S. at 1019
    ).' All other
    regulations are susceptible of partial regulatory takings claims, which federal
    courts decide based on a multifactor test (the Penn Central factors) applied on a
    case-by-case basis. 
    Id. at 538-39
    (citing Penn Cent. Transp. Co. v. New York City,
    
    438 U.S. 104
    , 124, 
    98 S. Ct. 2646
    , 
    57 L. Ed. 2d 631
    (1978)).
    The plaintiffs here claim the FIT rule facially effects a per se regulatory
    taking, but they do not contend that it fits into either of the per se categories
    recognized by federal courts. Instead, they contend that Washington courts
    recognize another category of per se regulatory takings, which includes any
    regulation that "destroys one or more of the fundamental attributes of ownership
    (the right to possess, exclude others and to dispose of property)." Mfd. 
    Hons., 142 Wash. 2d at 355
    . The plaintiffs argue that the FIT rule falls into this per se category
    "because it strips landlords of a fundamental attribute of property ownership—^the
    right to choose to whom one will rent their property." Resp'ts' Br. at 1.
    We now clarify that none of our regulatory takings cases have purported to
    define regulatory takings (either per se or partial) as a matter of independent state
    law. Instead, we have always attempted to discern and apply the federal definition
    'There is another form of takings cases not relevant here that deals with "adjudicative
    land-use exactions—specifically, government demands that a landowner dedicate an easement
    allowing public access to her property as a condition of obtaining a development permit."
    Chevron 
    U.S.A., 544 U.S. at 546
    (citing Dolan v. City ofTigard, 
    512 U.S. 374
    , 379-80, 
    114 S. Ct. 2309
    , 
    129 L. Ed. 2d 304
    {\99Ay, Nollan v. Cat. Coastal Comm'n,483 U.S. 825, 828, 
    107 S. Ct. 3141
    , 97 L. Ed. 2d 677(1987)).
    Yim et al. v. City ofSeattle, No. 95813-1
    of regulatory takings. Since we last attempted to do so, the federal definition has
    been clarified substantially and is now clearly inconsistent with the definitions set
    forth in our precedent. Thus, the legal underpinnings of our precedent have
    disappeared, and it has not been shown that we should now adopt a Washington-
    specific definition of regulatory takings as a matter of independent state law.
    Therefore, we disavow our precedent, adopt the federal definition of
    regulatory takings, and hold that the plaintiffs cannot show the FIT rule facially
    meets this definition on the record presented. We express no opinion as to whether
    the FIT rule effects a regulatory taking as applied to any particular property.
    1.      We have never defined regulatory takings as a matter of independent
    state law
    The plaintiffs emphasize that their takings claim is based on the Washington
    State Constitution and contend that "[t]he federal approach to takings therefore
    does not offer a relevant comparison because this Court can interpret its own state
    constitution as it sees fit—so long as its inteipretation does not go below the floor
    of protection guaranteed by the Federal Constitution." 
    Id. at 20-21.
    It is certainly
    true that we have the authority to interpret article I, section 16 independently of the
    Fifth Amendment's takings clause. However, it is incorrect to suggest that we
    have already done so for purposes of defining regulatory takings. To the contrary,
    for over 30 years, we have attempted to define regulatory takings in a manner that
    is consistent with federal law. Unfortunately, for many years, federal regulatory
    10
    Yim et al. v. City ofSeattle, No. 95813-1
    takings cases were complex and occasionally inconsistent, making our task
    extremely challenging and giving the inaccurate impression that this court was
    attempting to set forth a Washington-specific doctrine based on independent state
    law.
    a.     Our pvQ-Manufactured Housing cases did not define regulatory
    takings based on independent state law
    Although we have never defined regulatory takings based on independent
    state law, our precedent may appear to have done so. See, e.g., Laurel Park Cmty.,
    LLC V. City ofTumwater, 
    698 F.3d 1180
    , 1191-93 (9th Cir. 2012)(analyzing state
    regulatory takings claim separately from federal regulatory takings claim); Lemire
    V. Dep't ofEcology, 
    178 Wash. 2d 227
    , 242, 
    309 P.3d 395
    (2013)("The parties and
    amici strenuously debate the framework on which this court should rest a taking
    analysis, including whether and to what extent our state constitutional takings
    provision may offer greater protection than its federal counterpart."); Roger D.
    Wynne, The Path out of Washington's Takings Quagmire: The Casefor Adopting
    the Federal Takings Analysis, 86 WASH.L. Rev. 125, 136(2011)(pointing to
    "three unique elements" of Washington takings law). Regrettably, this court has
    added to the confusion by occasionally characterizing our cases as setting forth a
    "state 'regulatory takings' doctrine." 
    Robinson, 119 Wash. 2d at 47
    . We resolve this
    confusion now.
    11
    Yim et al. v. City ofSeattle, No. 95813-1
    The reason our precedent appears unusual is because this court was
    attempting to set forth "a doctrinally consistent, definitive test" for regulatory
    takings, which "has proved an elusive goal, sometimes characterized as 'the
    lawyer's equivalent of the physicist's hunt for the quark.'" Orion 
    Corp., 109 Wash. 2d at 645
    (internal quotation marks omitted)(quoting Williamson County Reg'I
    Planning Comm'n v. Hamilton Bank, 
    473 U.S. 172
    , 199 n.l7, 
    105 S. Ct. 3108
    , 
    87 L. Ed. 2d 126
    (1985), overruled in part by Knickv. Township ofScott, 588 U.S.
    , 
    139 S. Ct. 2162
    , 
    204 L. Ed. 2d 558
    (2019)). It should not be surprising that
    our pursuit of such an elusive goal left this court as something of an outlier.
    However, our attempts to articulate a test for when regulations cross the line into
    regulatory takings have always attempted to achieve consistency with federal law,
    not to set forth an independent state law doctrine.
    Achieving consistency with federal regulatory takings law proved difficult
    due to "unresolved tensions between divergent lines of authority." 
    Id. Even though
    the United States Supreme Court held in 1922 that a police power
    regulation becomes a taking if it goes too far, the United States Supreme Court
    (and this court, following its lead) continued to state that "an exercise of the police
    power protective ofthe public health, safety, or welfare cannot be a taking
    requiring compensation." 
    Id. at 646(emphasis
    added)(citing Keystone Bituminous
    Coal Ass'n v. DeBenedictis, 
    480 U.S. 470
    , 
    107 S. Ct. 1232
    , 
    94 L. Ed. 2d 472
    12
    Yim et al. v. City ofSeattle, No. 95813-1
    (1987); Miller v. Schoene, 
    276 U.S. 272
    , 
    48 S. Ct. 246
    , 
    72 L. Ed. 568
    (1928);
    Muglerv. Kansas, 
    123 U.S. 623
    , 
    8 S. Ct. 273
    , 
    31 L. Ed. 205
    (1897); Cougar Bus.
    Owners Ass'n v. State, 
    97 Wash. 2d 466
    , 
    647 P.2d 481
    (1982); Markham Advert. Co.
    V. State, 
    73 Wash. 2d 405
    , 427,439 P.2d 248 (1968)). Thus, it appeared that some
    regulations of private property were categorically incapable of being regulatory
    takings, but it was not clear which ones.
    Moreover, regulatory takings cases suffered from a "doctrinal blurring that
    has occurred between due process and regulatory takings." 
    Id. at 647.
    Federal and
    state cases held that "a police power action must be reasonably necessary to serve a
    legitimate state interest" to survive a substantive due process challenge. 
    Id. at 646-
    47(citing Goldblattv. Town ofHempstead, 
    369 U.S. 590
    , 594-95, 
    82 S. Ct. 987
    , 
    8 L. Ed. 2d 130
    (1962); Lawton v. Steele, 
    152 U.S. 133
    , 137, 
    14 S. Ct. 499
    , 38 E. Ed.
    385 (1894); W. Main Assocs. v. City ofBellevue, 
    106 Wash. 2d 47
    , 52, 
    720 P.2d 782
    (1986); Cougar Bus. 
    Owners, 97 Wash. 2d at 476
    ). Meanwhile,"[a] regulatory
    taking also hinges on whether the challenged regulation is 'reasonably necessary to
    the effectuation of a substantial public purpose,' or 'does not substantially advance
    legitimate state interests.'" 
    Id. at 647
    (citation omitted)(internal quotation marks
    omitted)(quoting Penn 
    Central, 438 U.S. at 127
    ; 
    Keystone, 480 U.S. at 485
    ). It
    was thus difficult to determine whether and to what extent substantive due process
    principles were relevant to the regulatory takings analysis.
    13
    Yim et al v. City ofSeattle, No. 95813-1
    As a result of such confusion, courts were left to determine when a
    regulation crosses the line into a regulatory taking based on '"essentially ad hoc,
    factual inquiries.'" 
    Keystone, 480 U.S. at 495
    (internal quotation marks omitted)
    {(yyolmg Kaiser Aetna V. United States, 
    444 U.S. 164
    , 175, 100 S. Ct. 383,62
    L. Ed. 2d 332(1979)). In an effort to bring some uniformity to the regulatory
    takings analysis, this court "ventur[ed] where other courts had feared to go,[and]
    began the painful process of developing coherent legal doctrine to supplant vague
    or nonexistent principles and intuitive determinations." Richard L. Settle,
    Regulatory Taking Doctrine in Washington: Now You See It, Now You Don't, 12
    U.PUGET Sound L. Rev. 339, 341 (1989). After revising and clarifying our
    analysis several times, we ultimately settled on the following multistep test:
    14
    Yim etal. v. City ofSeattle, No. 95813-1
    Does the regulation
    compel the landowner to          Yes
    suffer a permanent                                                          Taking
    "physical invasion" of the
    property?
    No
    Does the regulation deny
    all economically                Yes
    beneficial or productive                                                   Taking
    use of the property?
    No
    '
    Does the regulation
    destroy one or more
    fundamental attributes of      Yes    Does the regulation
    No
    property ownership (the               substantially advance a            > Taking
    right to possess, to                  legitimate state interest?
    exclude others, or to
    dispose of property)?                         Yes
    No                            Is the state interest
    outweighed by economic
    burden on the owner in
    Does the regulation seek
    Yes     light of the Penn Central
    less to prevent a harm than
    factors (economic impact,    Yes
    to require an affirmative                                                  Taking
    interference with
    public benefit?
    investment-backed
    expectations, and
    character of the
    No                            goveimment action)?
    NoI
    No taking                              No taking
    
    Margola, 121 Wash. 2d at 643-46
    ; 
    Guimont, 121 Wash. 2d at 598-604
    ; see also
    Robinson, 
    119 Wash. 2d 34
    ; Sintra, 
    119 Wash. 2d 1
    ; Presbytery, 
    114 Wash. 2d 320
    ; Orion
    Corp., 
    109 Wash. 2d 621
    .
    By the time we settled on this framework in 1993, it had been suggested that
    our test was "undermined by language in Lucas questioning harm versus benefit
    15
    Yim et al. v. City ofSeattle, No. 95813-1
    analysis." 
    Guimont, 121 Wash. 2d at 603
    n.5. However, we declined to address that
    issue because "it would be premature to begin dismantling our takings framework,
    carefully crafted in Presbytery, Sintra, and Robinson, without more definitive
    guidance on this issue from the United States Supreme Court." 
    Id. While we
    continued to await more definitive guidance, this court decided
    Manufactured Housing, which forms the basis of the plaintiffs' regulatory takings
    claim in this case.
    b.     Manufactured Housing did not define regulatory takings based
    on independent state law
    Manufactured Housing's lead opinion cited only Presbytery to support its
    holding that a regulation is "subject to a categorical 'facial' taking challenge"
    when it "destroys one or more of the fundamental attributes of ownership (the right
    to possess, exclude others and to dispose of property)."^ Mfd. 
    Hous., 142 Wash. 2d at 355
    . The plaintiffs and allied amici contend that this category of per se regulatory
    takings is based on independent state law and therefore cannot be disavowed
    unless it is shown to be both incorrect and harmful. We clarify that this category
    of per se regulatory takings is not based on independent state law.
    ^ The dissents challenged this holding as an incorrect application ofPresbytery. Mfd.
    
    Hous., 142 Wash. 2d at 388
    (Johnson, J., dissenting), 407-08 (Talmadge, J., dissenting). However,
    because we hold that Manufactured Housing's legal underpinnings have disappeared, we assume
    without deciding that it correctly applied Presbytery. We also assume without deciding that
    Manufactured Housing's lead opinion was joined by a majority of the court on the issues
    relevant to this case and that the facts of Manufactured Housing are not materially
    distinguishable from the facts presented here.
    16
    Yim et al. v. City ofSeattle, No. 95813-1
    Presbytery unambiguously applied 'fhe 'taking' analysis used by the United
    States Supreme Court and by this court," drawing no distinction between the 
    two. 114 Wash. 2d at 333
    (emphasis added). Presbytery's approach was entirely
    consistent with our prior explicit holding that"we will apply the federal analysis to
    review all regulatory takings claims." Orion 
    Corp., 109 Wash. 2d at 658
    ; see also
    Margola 
    Assocs., 121 Wash. 2d at 642
    n.6; 
    Guimont, 121 Wash. 2d at 604
    . Thus, by
    relying solely on Presbytery to define a per se regulatory taking. Manufactured
    Housing necessarily relied on federal law.
    Furthermore, when applying its definition to the facts presented.
    Manufactured Housing's lead opinion cited Presbytery again, along with other
    Washington cases, federal cases, and cases from other states. Mfd. 
    Hous., 142 Wash. 2d at 364-68
    . Thus, it is clear from the range of authorities cited in
    Manufactured Housing's lead opinion that its definition of a per se regulatory
    taking was not based on independent state law but on an attempt to apply federal
    law and, perhaps, to discern a national consensus.
    It may appear that Manufactured Housing was applying a Washington-
    specific definition of regulatory takings because the lead opinion included a
    GunwalP analysis. 
    Id. at 356-61.
    However, the Gunwall analysis was unrelated to
    the definition of regulatory takings. Instead,"[wjhat is key is article I, section 16's
    State V. Gunwall, 
    106 Wash. 2d 54
    , 61-62, 
    720 P.2d 808
    (1986).
    17
    Yim et al. v. City ofSeattle, No. 95813-1
    absolute prohibition against taking private property for private use." 
    Id. at 357.
    The court therefore concluded that the Washington State Constitution is more
    protective than the federal constitution on the basis "that 'private use' under
    amended article I, section 16 is defined more literally than under the Fifth
    Amendment, and that Washington's interpretation of'public use' has been more
    restrictive," 
    Id. at 361.
    Nevertheless, the conclusion that article I, section 16
    defines public and private use more protectively than the federal constitution does
    not also establish that article I, section 16 has a more protective definition of
    regulatory takings. Those are two separate questions implicating two different
    parts of the regulatory takings analysis.
    Regulatory takings cases involve a "remedial question of how compensation
    is measured once a regulatory taking is established" and "the quite different and
    logically prior question whether the . . . regulation at issue had in fact constituted a
    taking." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'I Planning Agency, 
    535 U.S. 302
    , 328, 
    122 S. Ct. 1465
    , 152 L. Ed. 2d 517(2002). The definition of a
    regulatory taking goes only to the initial determination of whether "'property' has
    actually been taken." Mfd. 
    Hous., 142 Wash. 2d at 363-64
    . Meanwhile, the
    public/private use distinction goes only to the appropriate remedy once a taking
    has been established—compensation or invalidation. See 
    id. at 362.
    18
    Yim et al. v. City ofSeattle, No. 95813-1
    Thus, none of our cases, including Manufactured Housing, defined
    regulatory takings based on independent state law. Instead, we have always tried
    to ascertain and apply a definition that is consistent with federal law. Our
    regulatory takings cases appear state-specific only because, for many years, the
    federal definition was difficult to understand. The United States Supreme Court
    has since provided definitive guidance on that issue, which "[a]n overwhelming
    majority of states" have followed. Phillips v. Montgomery County, 
    442 S.W.3d 233
    , 240(Term. 2014). We now do the same.
    2.      The legal underpinnings of our definition of regulatory takings have
    disappeared
    Because our prior definition of regulatory takings was not based on
    independent state law, we need not decide whether it is incorrect and harmful.
    Instead,"we can reconsider our precedent not only when it has been shown to be
    incorrect and harmful but also when the legal underpinnings of our precedent have
    changed or disappeared altogether." W.G. 
    Clark, 180 Wash. 2d at 66
    . We do so now
    because two United States Supreme Court cases decided after Manufactured
    Housing establish that the federal legal underpinnings of our precedent have
    disappeared, and it has not been shown that there is a principled basis on which to
    depart from federal law at this time.
    First, in 2002, the United States Supreme Court held that categorical rules
    are rarely appropriate in regulatory takings cases. Tahoe-Sierra, 
    535 U.S. 302
    .
    19
    Yim et al. v. City ofSeattle, No. 95813-1
    The regulations at issue in Tahoe-Sierra were two temporary development
    moratoria "that, while in effect, denie[d] a property owner all viable economic use
    of her property." 
    Id. at 320(emphasis
    added). A number of property owners
    brought a facial takings claim, arguing that the regulations "g[ave] rise to an
    unqualified constitutional obligation to compensate [them] for the value of its use
    during that period." 
    Id. The United
    States Supreme Court rejected their claim, cautioning that"we
    still resist the temptation to adopt per se rules in our cases involving partial
    regulatory takings." 
    Id. at 326.
    Instead, categorical rules for regulatory takings
    claims are appropriate only in an "'extraordinary circumstance,'" such as when a
    permanent regulation provides that '''no productive or economically beneficial use
    of land is permitted.'" 
    Id. at 330(quoting
    Twcaj', 505 U.S. at 1017
    ).
    In such extraordinary circumstances, there is no need for a case-specific
    inquiry because the regulation will "always force individuals to bear a special
    burden that should be shared by the public as a whole." 
    Id. at 341
    (emphasis
    added). However, absent extraordinary circumstances,"the default rule remains
    that, in the regulatory taking context, we require a more fact specific inquiry." 
    Id. at 332.
    To determine whether there were extraordinary circumstances requiring a
    categorical rule, Tahoe-Sierra considered "the concepts of'fairness and justice'
    20
    Yim et al. v. City ofSeattle, No. 95813-1
    that underlie the Takings Clause" and held that the temporary moratoria at issue
    could not be deemed per se regulatory takings. 
    Id. at 334.
    Tahoe-Sierra thus deeply undermines Manufactured Housing''s view that a
    categorical rule is appropriate whenever a property owner is deprived of any part
    of"the 'bundle of sticks' representing the valuable incidents of ownership." Mfd.
    
    Hous., 142 Wash. 2d at 366
    . Instead, according to Tahoe-Sierra, categorical rules for
    regulatory takings claims are appropriate only in extraordinary circumstances.
    It is unlikely that Tahoe-Sierra would recognize extraordinary circumstances
    are present whenever a regulation limits "the right to choose to whom one will rent
    their property." Resp'ts' Br. at 1. If that were so, every antidiscrimination law that
    prohibits a landlord from rejecting a tenant based on protected characteristics
    would be a per se regulatory taking requiring either compensation or invalidation.
    E.g., RCW 49.60.222(l)(f); SMC 14.08.040(A). Tahoe-Sierra would likely not
    allow such a holding because it "would render routine government processes
    prohibitively expensive," if not 
    impossible. 535 U.S. at 335
    .
    Although Tahoe-Sierra cautioned that categorical rules are rarely
    appropriate in regulatory takings cases, it left open the question of when
    regulations present such extraordinary circumstances that categorical rules are
    appropriate. That question was resolved in 2005, when Chevron U.S.A.
    definitively held that there are only "two relatively narrow categories" of
    21
    Yim et al. v. City ofSeattle, No. 95813-1
    "regulatory action that generally will be deemed per se takings for Fifth
    Amendment 
    purposes." 544 U.S. at 538
    .
    One per se category applies "where government requires an owner to suffer
    a permanent physical invasion of her property." 
    Id. The other
    "applies to
    regulations that completely deprive an owner of'all economically beneficial us[e]'
    of her property." 
    Id. (alteration in
    original)(quoting        505 U.S. at 1019
    ).
    Any other alleged regulatory taking must be analyzed on a case-by-case basis
    according to the Penn Central factors. 
    Id. at 538-39
    . The United States Supreme
    Court has since consistently applied these standards when defining regulatory
    takings, such that Chevron U.S.A. is clearly the Court's final, definitive statement
    on this issue at this time. See Murr v. Wisconsin, 582 U.S.     , 
    137 S. Ct. 1933
    ,
    1942-43, 198 L. Ed. 2d 497(2017); Home v. Dep't ofAgric., 576 U.S.           , 
    135 S. Ct. 2419
    , 2429, 
    192 L. Ed. 2d 388
    (2015); Ark. Game & Fish Comm 'n v. United
    States, 
    568 U.S. 23
    , 31-32, 
    133 S. Ct. 511
    , 184 L. Ed. 2d 417(2012); Stop the
    Beach Renourishment, Inc. v. Fla. Dep't ofEnvtl. Prot., 
    560 U.S. 702
    , 713, 
    130 S. Ct. 2592
    , 111 L. Ed. 2d 184(2010)(partial plurality opinion).
    Chevron U.S.A. nan"owly defines per se regulatory takings that trigger
    categorical rules. By contrast. Manufactured Housing''s, definition of per se
    regulatory takings broadly applies a categorical rule to any regulation that destroys
    any fundamental attribute of ownership. Tahoe-Sierra strongly indicates such a
    22
    Yim et al. v. City ofSeattle, No. 95813-1
    categorical rule would be rejected by the United States Supreme Court and
    Chevron U.S.A. confirms it. Therefore, Manufactured Housing's definition of per
    se regulatory takings is no longer a valid application of the federal law on which it
    was based. And because it has not been shown that we should now depart from the
    federal definition of regulatory takings as a matter of independent state law, we
    disavow Manufactured Housing's definition."^
    In addition. Chevron U.S.A. clarified the Penn Central factors for evaluating
    partial regulatory takings claims that do not fit within either per se category. Those
    factors are intended to shed light on "the magnitude or character ofthe burden a
    particular regulation imposes upon private property rights" and to provide
    "information about how any regulatory burden is distributed among property
    owners." 
    Id. at 542.
    The factors explicitly do not ask "whether a regulation of
    private property is effective in achieving some legitimate public purpose." 
    Id. By contrast,
    our prior regulatory takings cases allow a regulation to be
    "insulated from a 'takings' challenge" if it "protects the public from harm" and
    require courts to consider whether the challenged "regulation substantially
    Some amici appear to contend that we should now adopt Manufactured Housing'?,
    definition of per se regulatory takings as a matter of independent state law. However, amici's
    arguments are all based on Washington's more protective definitions of public and private uses,
    which, as discussed above, are relevant only to the appropriate remedy once a taking has been
    established. No party or amicus performs a Gunwall analysis or provides any other principled
    basis on which to define regulatory takings broadly as a matter of independent state law. See
    Gunwall, 
    106 Wash. 2d 54
    . We therefore decline to do so.
    23
    Yim et al. v. City ofSeattle, No. 95813-1
    advances legitimate state interests." 
    Presbytery, 114 Wash. 2d at 330
    , 333; see also
    Margola 
    Assocs., 121 Wash. 2d at 645-46
    ; 
    Guimont, 121 Wash. 2d at 603
    -04; 
    Robinson, 119 Wash. 2d at 49-50
    ; 
    Sintra, 119 Wash. 2d at 14-17
    ; Orion 
    Corp., 109 Wash. 2d at 658
    .
    That precedent can no longer be valid because it may provide less protection for
    private property rights than the federal constitution does. See Orion 
    Corp., 109 Wash. 2d at 652
    , 657-58.
    In sum,today we continue our long-standing practice of following federal
    law in defining regulatory takings and explicitly adopt the definition set forth in
    Chevron U.S.A. Pursuant to Chevron U.S.A., there are only two categories of per
    se regulatory takings:(1)"where government requires an owner to suffer a
    permanent physical invasion of her property" and (2)"regulations that completely
    deprive an owner of'all economically beneficial us[e]' of her 
    property." 544 U.S. at 538
    (alteration in original)(quoting 
    Lucas, 505 U.S. at 1019
    ). If an alleged
    regulatory taking does not fit into either category, it must be considered on a case-
    by-case basis in accordance with the Penn Central factors. 
    Id. at 538-39
    .
    3.     The plaintiffs do not show that the FIT rule facially effects a
    regulatory taking
    The plaintiffs do not argue that the FIT rule fits into either of the per se
    categories set forth in Chevron U.S.A., and it clearly does not. On its face, the FIT
    rule does not require any property owners to suffer any permanent physical
    invasion of their properties, and the plaintiffs do not contend that the FIT rule
    24
    Yim et al. v. City ofSeattle, No. 95813-1
    deprives them of any economically beneficial uses of their properties, let alone
    every economically beneficial use. The plaintiffs also do not contend that the FIT
    rule is a regulatory taking pursuant to the Penn Central factors.^ We therefore
    reverse the trial court and hold that the plaintiffs have not shown the FIT rule
    facially effects a regulatory taking of their property.
    B.     Because the plaintiffs have not shown that the FIT rule effects a taking, we
    do not reach the issue of whether it is for private use
    The plaintiffs contend that the regulatory taking effected by the FIT rule is
    for private use, rather than public use, and is therefore invalid. Because we hold
    that the plaintiffs do not show the FIT rule effects a taking at all, we decline to
    consider the public/private use distinction. As discussed above, that distinction is
    relevant only to the appropriate remedy where a taking has been shown, and no
    taking has been shown here.
    C.     The FIT rule does not facially violate substantive due process
    The plaintiffs next claim that the FIT rule facially violates their article I,
    section 3 right to substantive due process, contending that the FIT rule is subject to
    heightened scrutiny because it regulates a fundamental attribute of property
    ownership. We hold that the applicable standard is rational basis review, which the
    FIT rule survives.
    ^ We express no opinion on whether application of the Penn Central factors would show
    that the FIT rule effects a regulatory taking as applied to any particular property.
    25
    Yim et al. v. City ofSeattle, No. 95813-1
    1.      The FIT rule is subject to rational basis review
    As discussed in more detail in our opinion in Yim II, we have never held that
    independent state law requires a heightened standard of review for substantive due
    process challenges to laws regulating the use of property. Instead, we have always
    looked to federal law to discern the appropriate standard of review, and it has not
    been shown that we should adopt a heightened standard now as a matter of
    independent state law. We therefore hold that the plaintiffs' article I, section 3
    substantive due process claim is subject to the same standard that would apply if
    their claims were based on the due process clauses of the Fifth and Fourteenth
    Amendments. That standard is rational basis review.
    We recognize that some United States Supreme Court precedent might
    suggest heightened scrutiny is required by stating that laws regulating the use of
    property must not be '"unduly oppressive'" on the property owner, or must have a
    '"substantial relation'" to a legitimate government purpose. 
    Goldblatt, 369 U.S. at 595
    (quoting 
    Lawton, 152 U.S. at 137
    ); Nectow v. City of Cambridge, 
    211 U.S. 183
    , 187, 
    48 S. Ct. 447
    , 72 L. Ed. 842(1928)(quoting Village ofEuclid v. Ambler
    Realty Co., 
    272 U.S. 365
    , 395, 
    47 S. Ct. 114
    , 
    71 L. Ed. 303
    (1926)). However,the
    United States Supreme Court does not interpret this language as requiring
    heightened scrutiny. Instead, the "unduly oppressive" test has been interpreted as
    "applying a deferential 'reasonableness' standard." Chevron 
    U.S.A., 544 U.S. at 26
    Yim et al. v. City ofSeattle, No. 95813-1
    541 (internal quotation marks omitted)(citing and quoting 
    Goldblatt, 369 U.S. at 594-95
    ; 
    Lawton, 152 U.S. at 137
    ). Likewise, it has long been acknowledged that
    "the use of property and the making of contracts are normally matters of private
    and not of public concern," but "[ejqually fundamental with the private right is that
    of the public to regulate it in the common interest." Nebbia v. New York, 
    291 U.S. 502
    , 523, 
    54 S. Ct. 505
    , 
    78 L. Ed. 940
    (1934).
    Therefore, a law regulating the use of property violates substantive due
    process only if it "fails to serve any legitimate governmental objective," making it
    "arbitrary or irrational." Chevron 
    U.S.A., 544 U.S. at 542
    ; see also Kentner v. City
    ofSanibel, 
    750 F.3d 1274
    , 1280-81 (11th Cir. 2014), cert, denied, 
    135 S. Ct. 950
    (2015); Samson v. City ofBainbridge Island, 
    683 F.3d 1051
    , 1058 (9th dr.), cert,
    denied, 
    568 U.S. 1041
    (2012). This test con-esponds to rational basis review,
    which requires only that "the challenged law must be rationally related to a
    legitimate state interest." 
    Amunrud, 158 Wash. 2d at 222
    . We therefore apply
    rational basis review to the plaintiffs' substantive due process challenge to the FIT
    rule.^
    ® Appended to our opinion in Yim II is a nonexclusive list of this court's precedent that
    can no longer be interpreted as requiring heightened scrutiny in substantive due process
    challenges to laws regulating the use of property.
    27
    Yim et al. v. City ofSeattle, No. 95813-1
    2.      The FIT rule survives rational basis review on its face
    Rational basis review requires that "the challenged law must be rationally
    related to a legitimate state interest." 
    Id. Rational basis
    review is highly
    deferential because "a court may assume the existence of any necessary state of
    facts which it can reasonably conceive in determining whether a rational
    relationship exists between the challenged law and a legitimate state interest." 
    Id. The purpose
    of the FIT rule is to mitigate the impact of implicit bias in
    tenancy decisions. The plaintiffs appear to suggest this is not a legitimate
    government interest because "implicit bias can be both positive and negative."
    Resp'ts' Br. at 41. However, the fact that implicit bias may work to some people's
    advantage some of the time does not mean that mitigating its impact is an
    illegitimate purpose. Indeed, this court has recognized the importance of
    mitigating implicit bias in the context ofjury selection with the enactment of GR
    37. The plaintiffs do not show that implicit bias must be allowed to continue in the
    rental housing context.
    The FIT rule's requirements are also rationally related to achieving its
    purpose. A rational person could believe that implicit bias will be mitigated by
    requiring landlords to offer tenancy to the first qualified applicant, rather than
    giving landlords discretion to reject an otherwise-qualified applicant based on a
    "gut check." Verbatim Report of Proceedings (Feb. 23, 2018) at 36. It is precisely
    28
    Yim et al. v. City ofSeattle, No. 95813-1
    in such gut-check decisions where implicit bias is most likely to have influence
    because bias is "often unintentional, institutional, or unconscious." State v.
    Saintcalle, 
    178 Wash. 2d 34
    , 36, 309 P.3d 326(2013)(plurality opinion), abrogated
    on other grounds by City ofSeattle v. Erickson, 
    188 Wash. 2d 721
    , 
    398 P.3d 1124
    (2017).
    Indeed, the FIT rule's requirements are based on best practices
    recommended by industry associations, who advise that "[ujsing a set criteria also
    helps show that you are screening all applicants alike and can help avoid claims of
    discrimination by applicants not granted tenancy." CP at 315. Landlords are
    therefore advised to offer tenancy to the first qualified applicant "as a best practice
    when confronted with multiple, equally valid applications as a 'tie breaker.'" Br.
    of Amicus Curiae Rental Hons. Ass'n of Wash, at 3. Appearing as amici, several
    rental housing associations emphatically state that they do not support the FIT rule.
    Nevertheless, the procedures required by the FIT rule are consistent with industry-
    recommended best practices. Amici object only to making those practices
    mandatory, contending that doing so is unwise and will prove ineffective.
    Rational basis review does not invite a demanding inquiry by this court into
    whether the FIT rule is good policy. Instead, our task is limited to deciding
    whether mandating industry-recommended best practices for avoiding
    29
    Yim et al. v. City ofSeattle, No. 95813-1
    discrimination in tenancy decisions is rationally related to reducing the influence of
    implicit bias in tenancy decisions. The answer is clearly yes.
    The plaintiffs further suggest that the FIT rule fails rational basis review
    because it is overbroad, given that "non-legal approaches" could be used instead
    and the FIT rule applies "even where a protected class is not among the landlords'
    applicant pool." Resp'ts' Br. at 41. However,"[t]he overbreadth doctrine may not
    be employed unless First Amendment activities are within the scope ofthe
    challenged enactment." City ofSeattle v. Montana, 
    129 Wash. 2d 583
    , 598, 
    919 P.2d 1218
    (1996)(plurality opinion); U.S. Const, amend. I. Thus, any assertion of
    overbreadth is irrelevant to the plaintiffs' facial substantive due process claim. The
    plaintiffs' free speech claim is addressed separately below.
    It may well be that the FIT rule will prove ineffective or unwise as a matter
    of policy. However,the plaintiffs do not carry their "'heavy burden'" of showing
    that it facially violates substantive due process as a matter of law. 
    Amunrud, 158 Wash. 2d at 215
    (quoting Larson v. Seattle Popular Monorail Auth., 
    156 Wash. 2d 752
    ,
    757, 131 P.3d 892(2006)). We therefore reverse the trial court and hold that the
    FIT rule survives rational basis review on its face.
    D.     The FIT rule does not facially violate free speech rights
    Finally, the plaintiffs claim that the FIT rule facially violates their article I,
    section 5 right to free speech. It is undisputed that the speech at issue here
    30
    Yim et al. v. City ofSeattle, No. 95813-1
    (advertisements for vacant tenancies) is "commercial speech," that is,'"speech
    proposing a commercial transaction.'" Zauderer v. Office ofDisciplinary Counsel,
    
    471 U.S. 626
    , 637, 
    105 S. Ct. 2265
    , 85 L. Ed. 2d 652(1985)(quoting Ohralikv.
    Ohio State Bar Ass'n, 
    436 U.S. 447
    , 455-56, 
    98 S. Ct. 1912
    , 
    56 L. Ed. 2d 444
    (1978)). It is also undisputed that article I, section 5 and the First Amendment
    provide identical protections for commercial speech. Bradburn v. N. Cent. Reg'I
    Library Dist., 
    168 Wash. 2d 789
    , 800, 
    231 P.3d 166
    (2010).
    The main focus of the parties' dispute is the level of scrutiny that we must
    apply to the FIT rule. The trial court agreed with the plaintiffs that the FIT rule is
    subject to intermediate scrutiny and "cannot survive." CP at 520. We reverse.
    The FIT rule is subject to, and survives, deferential scrutiny.
    1.     The FIT rule is subject to deferential scrutiny
    "'[Cjommercial speech' is entitled to the protection of the First Amendment,
    albeit to protection somewhat less extensive than that afforded 'noncommercial
    speech.'" 
    Zauderer, 471 U.S. at 637
    . The level of scrutiny applied to laws
    governing commercial speech depends on whether the law at issue actually
    restricts commercial speech or merely requires commercial speakers to include
    factual disclosures. 
    Id. at 650.
    Where a law restricts truthful commercial speech proposing a lawful
    transaction, the law is subject to intermediate scrutiny. Cent. Hudson Gas & Elec.
    31
    Yim et al. v. City ofSeattle, No. 95813-1
    Corp. V. Pub. Serv. Comm 'n, 
    447 U.S. 557
    , 564, 
    100 S. Ct. 2343
    , 
    65 L. Ed. 2d 341
    (1980). Meanwhile, if the law merely requires factual disclosures by commercial
    speakers, review is deferential because a person's "constitutionally protected
    interest in not providing any particular factual information in his advertising is
    minimal." 
    Zauderer, 471 U.S. at 651
    . Therefore,"an advertiser's rights are
    adequately protected as long as disclosure requirements are reasonably related to
    the State's interest in preventing deception of consumers." 
    Id. The government
    has the burden of proving its disclosure requirements are "neither unjustified nor
    unduly burdensome." Nat'llnst. ofFamily & Life Advocates v. Becerra, 585 U.S.
    , 
    138 S. Ct. 2361
    , 2377, 
    201 L. Ed. 2d 835
    (2018)(NIFLA).
    The plaintiffs contend that the FIT rule is a restriction on their commercial
    speech because the FIT rule provides that "[IJandlords cannot decline to
    communicate a minimum threshold or communicate a flexible standard and then
    weigh the credit history against other positive or negative factors in the
    application." Resp'ts' Br. at 43. Nothing in the text of the FIT rule supports the
    plaintiffs' contention.
    Washington law already provides that "[pjrior to obtaining any information
    about a prospective tenant, the prospective landlord shall first notify the
    prospective tenant" of the "types of information [that] will be accessed to conduct
    the tenant screening" and "[wjhat criteria may result in denial of the application."
    32
    Yim et al. v. City ofSeattle, No. 95813-1
    RCW 59.18.257(1)(a)(i)-(ii). The validity of that statute is not challenged here.
    The FIT rule merely provides that if property owners have additional rental criteria
    beyond what may result in a denial, they must "at the same time" give prospective
    tenants notice of what those criteria are and how they may be met. SMC
    14.08.050(A)(1).
    On its face, the FIT rule does not impose any restrictions on what the
    landlord's additional criteria may be or how they must be worded, and, contrary to
    the trial court's finding, it does not facially preclude advertisements for vacant
    tenancies from including phrases such as '"call to learn how to apply' or 'email me
    for further details.'" CP at 518. If the FIT rule is interpreted to impose such
    restrictions in the future, a property owner may bring an as-applied challenge that
    might be subject to heightened scrutiny. However, on its face, the FIT rule
    requires only that landlords disclose factual information about their own rental
    criteria. It is therefore subject to deferential scrutiny in accordance with Zanderer.
    2.     The FIT rule survives deferential scrutiny
    The plaintiffs analyze their free speech claim only in accordance with
    intermediate scrutiny. However, it is still the City's burden to prove that the FIT
    rule survives deferential scrutiny. 
    NIFLA, 138 S. Ct. at 2377
    . We hold the City
    has met its burden because on its face, the FIT rule is a justified disclosure
    requirement that does not unduly burden the plaintiffs' free speech rights.
    33
    Yim et al. v. City ofSeattle, No. 95813-1
    To prove that the FIT rule is justified, the City must show that it addresses
    "a harm that is 'potentially real not purely hypothetical.'" 
    Id. (quoting Ibanez
    v.
    Fla. Dep'tofBus. & ProfI Regulation, 
    512 U.S. 136
    , 146, 
    114 S. Ct. 2084
    , 
    129 L. Ed. 2d 118
    (1994)). The City has shown that the problem of implicit bias in
    Seattle's rental housing market is (at least) potentially real, based on a 2014 study
    that "showed evidence of differential treatment in over 60% of the tests" based on
    "race, national origin, sexual orientation and gender identity." City of Seattle's
    Opening Br. at 7; CP at 57. This differential treatment included subjecting
    different applicants to different rental criteria:
    African American and Latino testers were told about criminal
    background and credit history checks more frequently than the white
    testers. They also were asked more often about their spouses'
    employment history (especially with Latino testers). They also were
    shown and told about fewer amenities, provided fewer applications
    and brochures, were shown fewer vacant units. In some cases, the
    prices quoted were higher for the same unit.
    Testers for sexual orientation and gender identity were shown fewer
    amenities, provided fewer applications and brochures, and were
    shown fewer vacant units. In some cases, the prices quoted were
    higher for the same unit.
    CP at 57. This is sufficient justification for the FIT mle's enactment.
    To prove that the FIT rule does not "unduly burden[]protected speech," the
    City must show that it does not impose "a government-scripted, speaker-based
    disclosure requirement that is wholly disconnected from [the Cityj's informational
    interest." 
    NIFLA, 138 S. Ct. at 2377
    . It clearly does not. The landlords are
    34
    Yim et al. v. City ofSeattle, No. 95813-1
    required to disclose only the rental criteria they set for themselves, so the FIT rule
    does not impose any type of script. In addition, requiring landlords to disclose
    their rental criteria is directly connected to the City's interest in ensuring that the
    same rental criteria are applied to all applicants rather than subjecting some
    applicants to more demanding criteria due to the influence of implicit bias.
    We therefore reverse the trial court and hold that the FIT rule survives
    deferential scrutiny on its face.
    CONCLUSION
    The FIT rule is unquestionably an experiment. This is clear from the rule
    itself, which requires "the City Auditor to conduct an evaluation ofthe impact of
    the program described in subsections 14.08.050.A-C to determine if the program
    should be maintained, amended, or repealed." SMC 14.08.050(D). There is room
    for substantial debate about whether such an experiment is likely to succeed.
    However, the plaintiffs' facial challenges ask only whether the FIT rule is an
    experiment that Seattle is constitutionally prohibited from conducting. It is not.
    We clarify that Washington courts have always attempted to define
    regulatory takings consistently with federal law, and we continue to do so now.
    Therefore, we adopt the definition of regulatory takings set forth in Chevron U.S.A.
    for purposes of article I, section 16 and hold that the plaintiffs have not met their
    burden of showing the FIT rule facially meets this definition. We also clarify that
    35
    Yim et al. v. City ofSeattle, No. 95813-1
    rational basis review applies in substantive due process challenges to laws
    regulating the use of property and hold that the plaintiffs have not met their burden
    of proving that the FIT rule fails rational basis review on its face. Finally, we hold
    that on its face, the FIT rule requires only factual disclosures and the City has met
    its burden of showing the FIT rule survives deferential scrutiny.
    We therefore reverse the trial court and remand with instructions to grant the
    City's motion for summary judgment.
    36
    Yim, etal., v. City ofSeattle,Y\o. 95813-1
    WE CONCUR:
    H2^('e-7
    37