(concurring) — I concur this statute unconstitutionally takes private property for private use, but write separately to add a perspective not otherwise presented.
Police Power Not Implicated
Both the majority and the dissents compare and contrast, more or less, an exercise of the police power, which may require no compensation,14 with an exercise of the power of eminent domain, which always does.
But a principled dichotomy makes sense only if we use the term “police power” in the sense of its original understanding,15 used by the majority at 354-55 in its extended quotation from Conger v. Pierce County, 116 Wash. 27, 36, 198 P. 377 (1921) (“to prevent all things harmful to the comfort, welfare and safety of society”). Certainly by that definition what we have here is not an exercise of the police power at all. Rather it is a garden variety appropriation of an interest in private property for the benefit of others, not a limitation on the use of that property to protect others from harm. Cf. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 16, 829 P.2d 765 (1992) (regulatory scheme which goes beyond preventing harm to affirmatively provide low-cost housing is not proper exercise of police power but crosses taking threshold). This statute is not an exercise of the police power because the police power, in its purest form, is *376the “power to secure rights, through restraints or sanctions, not some general power to provide public goods.” Cato Handbook for Congress: Policy Recommendations for the 106th Congress 206 (Edward H. Crane & David Boaz eds., 1999). When the government acquires a public good, it does not do so as an exercise of the police power but rather the power of eminent domain. William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 569 (1972).
The distinction between the legitimate exercise of the police power and the power of eminent domain is aptly described in Conger after a most appropriate beginning to its analysis:
It seems to us that a recurrence to certain fundamental principles may assist us in reaching a correct conclusion. One of the greatest contributions of the English speaking people to civilization is the protection by law of the private individual in the enjoyment of his property and his personal liberties against the demands and aggressions of the public. No better illustration of the progressive growth of this principle can be found than that contained in our various state constitutions with reference to the taking of private property for a public use.
Conger, 116 Wash. at 33-34. In Conger Pierce County defended against an action to recover compensation for an alleged inverse condemnation, asserting that its actions were no more than a legitimate exercise of the police power for which no compensation would be due. This caused us to compare and contrast the police power with the power of eminent domain:
Indeed, it is the police power theory upon which respondents seem most strongly to rely. It is probable that this power is the most exalted attribute of government, and, like the power of eminent domain, it existed before and independently of constitutions. ... It is not inconsistent with nor antagonistic to the rules of law concerning the taking of private property for a public use. Because of its elasticity and the inability to define or fix its exact limitations, there is sometimes a natural tendency on the part of the courts to stretch this power in order to bridge *377over otherwise difficult situations, and for like reasons it is a power most likely to be abused. . . . Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public. . . .
“ . . . But the moment the legislature passes beyond mere regulation, and attempts to deprive the individual of his property, or of some substantial interest therein, under pretense of regulation, then the act becomes one of eminent domain, and is subject to the obligations and limitations which attend an exercise of that power.”
Conger, 116 Wash. at 35-37 (quoting 1 John Lewis, A Treatise on the Law of Eminent Domain § 6, at 14-15 (3d ed. 1909)).
The majority’s retreat from this principled dichotomy as reflected in Conger and like authorities is understandable given modern confusion over the nature of the police power. If, for example, construction of a baseball stadium is now deemed an exercise of the police power, as it was in CLEAN v. State, 130 Wn.2d 782, 805, 928 P.2d 1054 (1996), the language of the common law and the vocabulary of our founders has been so radically altered in meaning so as to require new words to express old ideas. See Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 506 (2000) (“This broad definition of the police power appears overinclusive and thus not analytically useful.”). Where the police power never ends, the takings clause never begins.
I also take issue with Justice Talmadge’s claim that “ [a]ll zoning laws would be abrogated under the majority’s analysis as well because they interfere with the possession and use of private property.” Dissent, Talmadge, J., at 417. Zoning laws which limit the harmful use of one person’s property so as to protect the legal entitlements of others are not enacted for the acquisition of public goods, but rather for the protection of private rights in general. I say “in general” because it would be in excess of the legitimate police power to utilize state power to bestow parochial *378benefits on a particular private person that are not generally available to all society on like terms. See Norco Constr., Inc. v. King County, 97 Wn.2d 680, 685, 649 P.2d 103 (1982); Nagatani Bros. v. Skagit County Bd. of Comm’rs, 46 Wn. App. 106, 728 P.2d 1104 (1986), aff’d as modified by 108 Wn.2d 477, 739 P.2d 696 (1987). Cf. State ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122, 49 S. Ct. 50, 73 L. Ed. 210 (1928) (conditioning land use permit on consent of neighbors violates due process). This distinction is omitted from Justice Talmadge’s dissent.16 Cf. Dissent, Talmadge, J., at 422-23.
Appropriation, Not Protection
The statute at issue effects a taking because it does not protect against harmful, rights-violating activity, but rather damages, or appropriates, property for the benefit of others. Although, as the dissents point out, the potential dislocation of mobile home tenants resulting from the loss of mobile home park use through sale may be a source of hardship to those tenants, such sale certainly does not breach any of their legal rights or entitlements. Indeed these tenancies are merely temporary by nature, and it is no breach of a tenant’s rights for the property owner to terminate the lease upon the contracted date of expiration.
*379Property is a Bundle of Rights
The dissent raises the further objection that the facts here do not involve a taking of property at all, at least in the same sense as discussed above. I think the answer to this question turns on the very meaning of “property.” I agree the issue is exactly as Justice Talmadge poses it: “Properly analyzed, what the park owners claim the statute unconstitutionally took from them is their alleged right to sell their mobile home parks in any manner they might choose to whomever they might choose.” Dissent, Talmadge, J., at 405.
But as the “ ‘ “legal term property denotes not material things but certain rights,” ’ ” Majority at 367 n.10 (quoting William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 600 (1972)), the dissent fails to recognize that when the government takes one right from the bundle which comprises “property,” it thereby takes an aspect or attribute of the property itself. Cf Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) (The right to exclude is “ ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ ”) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979))). See State ex rel. Smith v. Superior Court, 26 Wash. 278, 287, 66 P. 385 (1901) (“ ‘If property, then, consists not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property, and hence, that his property may be taken, in the constitutional sense, though his title and possession remain undisturbed; . .. .’ ”) (quoting 1 John Lewis, A Treatise on the Law op Eminent Domain in the United States § 56, at 58 (2d ed. 1900)).
If one of the rights of property has been damaged or removed from the bundle, the property has accordingly been damaged or taken to that extent. The unfettered right *380to sell one’s possession is as “fundamental [an] attribute of property” as is the right to assert an exclusive possessory interest against even the slightest physical invasion. Guimont v. Clarke, 121 Wn.2d 586, 602, 854 P.2d 1 (1993) (“[T]he court must first ask whether the regulation destroys or derogates any fundamental attribute of property ownership: including the right to . . . dispose of property.”); Loretto, 458 U.S. at 435-36 (“Property rights in a physical thing have been described as the rights ‘to possess, use and dispose of it’ ” (quoting United States v. Gen. Motors Corp., 323 U.S. 373, 378, 65 S. Ct. 357, 359, 89 L. Ed. 311 (1945))); whereas, “even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value . . . .” (id. at 436) (emphasis added). When the government deprives a person of a fundamental right of property, “the government does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of every strand.” Id. at 435 (quoting Andrus v. Allard, 444 U.S. 51, 65-66, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979)).
Moreover, I would posit, since the right of first refusal may be transferred from one person to another, it is clearly “property” in that sense as well since “ ‘property’ in eminent domain means every species of interest in land and things of a kind that an owner might transfer to another private person.” Stoebuck, supra, 47 Wash. L. Rev. at 606.
Likewise, I take issue with the view expressed in both dissents that the majority’s analysis is somehow inconsistent with Guimont. Cf. Dissent, Johnson, J., at 384-85. In reality the majority strictly applies the Guimont holding that an appropriation for public use of a fundamental attribute of property ownership constitutes a taking in eminent domain. Thus, I disagree with the dissent that “petitioners can prevail on their takings claim only if a right of first refusal is ‘property5 ” in and of itself. Dissent, Johnson, J., at 385. Even if the right of first refusal were not itself “property,” imposing such a condition on sale plainly *381derogates the unfettered right to transfer, which is a fundamental attribute of ownership in the parcel.
That the public may benefit from the acquisition is certainly no reason to characterize the appropriation as anything other than a taking. Rather, the greater the public benefit from appropriating or damaging the property, the more justified the suspicion that a “taking” has in fact occurred. Therefore when it is argued an acquisition or limitation of one’s property is justified because it serves a public purpose, we must question all the more why a discrete property owner must bear a burden that in justice should be borne by many shoulders. Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 964, 954 P.2d 250 (1998) (“The talisman of a taking is government action which forces some private persons alone to shoulder affirmative public burdens, ‘which, in all fairness and justice, should be borne by the public as a whole.’ ” (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960))).
Use Restriction Analysis Not Implicated
I agree with the majority’s characterization of “existing” law which finds a facial taking in circumstances which may include “a total taking of all economically viable use of one’s property,”17 Majority at 355, although I would qualify that is not the only circumstance.18 Rather, I think consider*382ations pertaining to use restrictions must be applied to circumstances involving use restrictions, not deprivations which destroy or appropriate one of the other fundamentals of property ownership. Loretto, 458 U.S. at 427, 430 (distinction between abrogation of fundamental right of property ownership and “a regulation that merely restricts the use of property” must be observed). Use restrictions must be evaluated based on their impact on the entire parcel, see, e.g., Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1990) (wetland use restriction which leaves room for development on the parcel not necessarily a taking); however, deprivations of the fundamental right to possess, exclude, or transfer do not implicate what use has been taken, or remains.19 Therefore it makes no sense, and is improper, to balance the fundamental property right appropriated against remaining uses to test whether a taking has transpired. Cf Dissent, Johnson, J., at 387-88. Cf. Loretto, 458 U.S. at 425, 430, 436, 438 n.16 (“whether the installation [of a cable TV wire box] is a taking does not depend on whether the volume of space it occupies is bigger than a breadbox”).
Examples of this principle include not only physical invasions but also conditions on land use permits which impose an exaction not serving the same legitimate public purpose as the permitting requirement itself. Such is an illegitimate taking which cannot be cured by compensation. In Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), for example, the Supreme Court found an unconstitutional taking when a *383building permit was conditioned on the payment of an unrelated exaction, notwithstanding the property owner’s full use of his entire parcel for an existing single family residence.
In summary, when a fundamental aspect of property is taken, however slightly, the “character of the governmental action,” Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), “not only is an important factor in resolving whether the action works a taking but also is determinative.” Loretto, 458 U.S. at 426 (emphasis added). See also Loretto at 432.
In the same vein, I understand Professor Settle’s view that deprivations of a fundamental attribute of property ownership constitute a taking to be a comment on existing law, at least enlightened existing law, rather than so much a plea for reformation.
Due Process Distinguished
I do not see substantive due process as adding anything to our understanding about what is or is not a taking, although it is no doubt true, as the majority says, the doctrines have indeed been conflated and confused from time to time. Rather, we have recognized the criteria to establish a taking are “ ‘quite different’ ” from that required to establish a due process violation. Mission Springs, 134 Wn.2d at 964 (quoting Nollan, 483 U.S. at 835 n.3).
I therefore emphatically agree with the majority’s conclusion that “[t]he instant case falls within the rule that would generally find a taking where a regulation deprives the owner of a fundamental attribute of property ownership,” Majority at 369, and see that as the dispositive feature of the majority’s analysis.
Taking for Private Use
So, too, I agree with the majority’s view that this property is not only taken, but taken for private use. This is the feature of the case which most directly invokes our state *384constitution’s express prohibition against taking private property for private use. As the majority observes, “the Washington State Constitution explicitly prohibits taking private property solely for a private use—with or without compensation.” Majority at 371. However, I would qualify, the same constitution equally prohibits a taking for even a partially private use. In re Petition of City of Seattle, 96 Wn.2d 616, 627, 638 P.2d 549 (1981); State ex rel. Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 829-36, 966 P.2d 1252 (1998) (Sanders, J., dissenting). Notwithstanding, the appropriation here is not directed to a partially private destination, but a wholly private one.
I therefore concur.
See, e.g., Mugler v. Kansas, 123 U.S. 623, 668-69, 8 S. Ct. 273, 31 L. Ed. 205 (1887). For an enlightened discussion of the Mugler rule and its modification in more recent decisions beginning with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), see John M. Groen & Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, 1269-71 (1993).
For an historical discussion, see Weden v. San Juan County, 135 Wn.2d 678, 723-29, 958 P.2d 273 (1998) (Sanders, J., dissenting).
Justice Talmadge’s claim that “[T]he Washington Supreme Court returns to the days when property rights were considered more important than human rights” is long on polemics but short on reason. Dissent, Talmadge, J., at 391. The fallacy of this statement is well summarized by the United States Supreme Court in Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S. Ct. 1113, 1121-22, 31 L. Ed. 2d 424 (1972):
Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.
Actually, the original language upon which the majority’s observation is based appears in Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106 (1980):
The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests or denies an owner economically viable use of his land.
(Citations omitted.) Absent is our majority’s “all.” Cf. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 n.8, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992) (An “analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation.”).
Moreover, once there is a taking of property in the constitutional sense it matters not what the value so appropriated may be except to measure compensation due. As a matter of fact, the cable TV wire which invaded Loretto’s property *382may have enhanced its value, yet took the property nonetheless.
This distinguishes Justice Talmadge’s discussion of disaggregating property rights (Dissent, Talmadge, J., at 421) as a principle limited to use restrictions, but inapplicable to abrogations of other fundamentals of property ownership such as possession, exclusion, or the -unfettered right of sale. In Loretto, for example, the physical intrusion of a cable television wire did not remotely interfere with the overall use of the parcel, nor even markedly diminish its value; however, because it derogated a fundamental aspect of ownership it was deemed a taking per se. Cf. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1990) (use restrictions which pertain to one portion of a parcel but allow development on the remainder, may withstand a taking challenge).