(concurring) — Although I concur emphatically in the result the majority reaches, I write separately to reaffirm the position I advanced in Hayes v. City of Seattle, 131 Wn.2d 706, 724, 934 P.2d 1179 (1997) (Talmadge, J., dissenting), and Sintra v. City of Seattle, 131 Wn.2d 640, 677, 935 P.2d 555 (1997) (Talmadge, J., concurring/dissenting): our land use jurisprudence requires modernizing. I would not recognize the claim of substantive due process in this case, relying instead on Armendariz v. Penman, 75 F.3d 1311, 1325-26 (9th Cir. 1996): "Substantive due process analysis has no place in contexts already addressed by explicit textual provisions of constitutional protection, regardless of whether the plaintiffs potential claims under those amendments have merit.” The proper way to evaluate the Christiansons’ claim in this case is under the takings clause of the Fifth Amendment.
This case involves the most fundamental, and perhaps least controversial, aspect of the police power—the *668absolute right of society to protect and preserve public health. At least since the time of the Assyrian king Hammurabi, a person has not been able to use land in a way that causes injury to another. See Mallett v. Taylor, 78 Or. 208, 213, 152 P. 873 (1915). "The right to use all property, must be subject to modification by municipal law. Sic utere tuo ut alienum non loedas is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbor.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53-54, 6 L. Ed. 23 (1824). The United States Supreme Court in Munn v. Illinois, 94 U.S. 113, 124-25, 24 L. Ed. 77 (1876), said:
When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, "is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143 [1854]; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non loedas.
In Camfield v. United States, 167 U.S. 518, 522-23, 17 S. Ct. 864, 42 L. Ed. 260 (1897), the Court said:
Ever since Aldred’s Case, 9 Coke, 57, it has been the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants. No person maintaining such a nuisance can shelter himself behind the sanctity of private property.
*669"[T]he Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 492, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987).5
The Christiansons complain about violation of their rights but the real issue is a fundamental application of a civilized society’s ancient right to protect its public health. Their claim lacks merit because such a proper public health regulation does not constitute a taking of their property.
The dissent quotes from Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982) (Utter, J.), and West Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782 (1986) (Utter, J.): "The basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees fit.” Dissent at 672-73. No authority had ever said that before, and no court, other than Washington courts, has said it since. Nor does such a rule follow from either the Fifth or Fourteenth Amendments. In fact, that statement has never been the basic rule in land use law. As noted above, the basic rule in land use law from time immemorial has been that one’s use of one’s property is subject to the police power, particularly where public health is implicated.