¶22
Becker, J.(dissenting) — I respectfully dissent. I would hold that the City’s abrupt and unlawful termination of Grajfs lawful nonconforming use was a regulatory taking because it served no other purpose than to coerce Gray to sell his land for development.
¶23 In 1992, the city of Des Moines rezoned the area in which Gray’s mobile home park is located. One ordinance adopted at the time allowed existing mobile home parks to continue as a nonconforming use. Another ordinance, No. 978, required the operators of existing mobile home parks to give the City a site plan showing the location and dimension of each mobile home site. The site plan was to be submitted within 90 days of the effective date of the ordinance. Gray, unaware of ordinance 978, did not submit a site plan. The City did not enforce the requirement.
¶24 For years, the City continued to issue “move-on” permits to mobile home owners who wished to rent one of the spaces in Gray’s park. Suddenly, in February 2000, the City informed Gray through a letter from Judith Kilgore, *616community development director, that move-on permits would no longer be issued for Gray’s park because of his failure to submit a site plan back in 1992. In effect, the City terminated Gray’s right to operate Pine Terrace Trailer Village as a lawful nonconforming use.
¶25 Negotiations were fruitless. In August 2002 Gray filed suit alleging that ordinance 978, as applied to his property, was a taking without just compensation.
¶26 In late 2003, as the case was about to go to trial, the City passed another ordinance that allowed preexisting mobile home park owners such as Gray to submit a site plan and thereby gain reinstatement to legal nonconforming status.43 As a result of this action, move-on permits could once again be issued, and Gray’s claim became one for a temporary taking.
¶27 The trial court considered cross motions for summary judgment in November 2003. Gray primarily argued that by taking away his right to lease the empty trailer pads to new lessees, the City had destroyed an attribute of ownership as fundamental as the right of first refusal considered in Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 13 P.3d 183 (2000). The court agreed that Manufactured Housing was analogous. The court granted summary judgment to Gray and awarded damages for the temporary taking.
¶28 The majority rejects Gray’s theory of a per se taking. I agree with this aspect of the majority’s analysis. Because Gray was not prevented from selling or leasing his property, he has not lost a fundamental attribute of ownership, and therefore the City’s action is not a taking under Manufactured Housing. Further, the City’s refusal to issue move-on permits was not tantamount to a physical invasion of Gray’s property (see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982)). Nor was it a denial of all economically viable use of *617his property (see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798(1992)).
¶29 But a government regulation that does not meet the criteria for a per se taking discussed in Manufactured Housing, Loretto, and Lucas may still amount to a compensable taking if it “goes too far.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 67 L. Ed. 322 (1922). A regulation goes too far if it “goes beyond preventing real harm to the public which is directly caused by the prohibited use of the property and instead imposes on those regulated the requirement of providing an affirmative public benefit.” Guimont v. Clarke, 121 Wn.2d 586, 603, 854 P.2d 1 (1993). See also Presbytery of Seattle v. King County, 114 Wn.2d 320, 333, 787 P.2d 907 (1990).
¶30 The majority concludes that the 1992 site plan regulation is not susceptible to this takings analysis because “Gray cannot establish it was overly burdened or that it was burdened to provide an affirmative public benefit. The site plan regulation itself had virtually no impact on Gray.” Majority at 614.
f31 If it were only a question of the burdens associated with submitting a site plan, I would agree. By itself, a site plan requirement is a simple, inexpensive, and well-accepted land use tool. But the regulatory act that Gray is concerned about is the City’s decision in 2000 to penalize his failure to submit a site plan by preventing him from taking in any new tenants. Judith Kilgore’s letter did not say that Gray would have to submit a site plan before any more new tenants were allowed to move in. Her letter said that no more new tenants would be allowed to move in, period. As the trial court reasoned, Judith Kilgore’s letter of February 2000 informing Gray that move-on permits would no longer be issued “represented a complete (though possibly slow acting) one pad at a time termination of the right to operate as a legal nonconforming use.”44
*618f 32 A lawful nonconforming use can be extinguished, but unless the owner has abandoned it the City must allow a reasonable amortization period to allow the owner to recoup on investment. Univ. Place v. McGuire, 144 Wn.2d 640, 648-49, 30 P.3d 453 (2001). “Although found to be detrimental to important public interests, nonconforming uses are allowed to continue based on the belief that it would be unfair and perhaps unconstitutional to require an immediate cessation of a nonconforming use.” Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 7, 959 P.2d 1024 (1998). As the trial court noted, the City extinguished Gray’s nonconforming use without using its own abatement process, which requires notice, public hearings, findings, and an amortization period.45 The site plan ordinance itself (No. 978) does not state that termination of an otherwise lawful nonconforming use will be a consequence of failure to submit a site plan before the 1992 deadline.
¶33 The question is whether the City’s termination of Gray’s legal nonconforming use status was merely a safeguard for the public interest, or whether it sought “ less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit’.” Guimont, 121 Wn.2d at 603 (quoting Robinson v. City of Seattle, 119 Wn.2d 34, 49, 830 P.2d 318 (1992)).
f 34 The City’s decision to permanently shut off Gray’s supply of new tenants was not merely a safeguard for the public welfare. To prevent any real harm to the public that was caused by Gray’s failure to submit a site plan, all the City needed to do, once it became aware of the missing site plan, was to call Gray and ask him to bring one down to City Hall.
f 35 Did the City’s sudden decision to extinguish the use of Pine Terrace as a mobile home park impose upon Gray “ ‘the requirement of providing an affirmative public benefit’ ”? Under Guimont the answer to this question must be *619“yes” if the overly severe land use regulation is to be susceptible to a takings analysis; otherwise, the appropriate challenge is as a violation of substantive due process. Guimont, 121 Wn.2d at 594. See also Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539, 125 S. Ct. 2074, 2082, 161 L. Ed. 2d 876 (2005) (the “common touchstone” of regulatory takings jurisprudence is to “identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain”; all tests for a taking focus “directly upon the severity of the burden that government imposes upon private property rights”).
¶36 In the record is Gray’s declaration describing his negotiations with city officials after he received the Kilgore letter. At the first meeting, Gray protested that the City had not taken any of the steps that its own ordinances require to terminate a nonconforming use. According to Gray, the city attorney “did most of the talking at that meeting. He talked about the City’s desire to see the Pine Terrace land developed in a manner that would be consistent with the new Pacific Ridge zoning that the City was adopting, and he wanted to know about our willingness to sell the park to a developer.”46 The city attorney specifically said “the City would like to see the park sold” and that if Gray could find a buyer for the park, and set a fixed date for terminating the mobile home park use, then he could do just about anything he wanted in the park until it was sold.47 Later, according to Gray, the city attorney said that Gray would be allowed to rent spaces to new tenants “if I would enter into a written agreement with the City to sell the park to a developer, terminate the use by a specific date, and help the City move mobile homes from the spaces along Pacific Highway South that the City needed to take in order to expand the highway.”48
*620¶37 Gray’s takings theory is that the Kilgore letter of February 2000 was sent “in an effort to coerce Gray Businesses into selling Pine Terrace to a developer whom the City approved, who would then redevelop the property in a manner that was consistent with the City’s new Pacific Ridge Zone for the area that included Pine Terrace.”49 His unrebutted account of the city attorney’s comments, combined with the City’s unlawful suspension of move-on permits, proves the theory and shows that the City imposed upon him a requirement to provide an affirmative public benefit.
¶38 First, converting Gray’s property to a preferred use manifestly would have achieved the public benefit of eliminating the nonconforming use. The designation of a use as nonconforming necessarily identifies that use as detrimental to the public interest. The nonconforming use is allowed to continue only because its termination would constitute a hardship on the owner greater than the benefit the public would derive from termination of the use. City of Seattle v. Martin, 54 Wn.2d 541, 544, 342 P.2d 602 (1959).
¶39 Second, the City’s action was coercive and confiscatory. Despite the City’s declaration that any decision by Gray to sell his property would have been purely voluntary, the only reasonable inference from the comments of the city attorney is that the objective of the decision to suspend move-on permits was to force mobile home park owners to sell to developers.
f 40 I would hold that the City’s unlawful use of the site plan regulation as a means to extinguish Gray’s nonconforming use did not solve any genuine problem of public welfare and did not prevent any real harm to the public. Instead, the objective was to accelerate the replacement of mobile home parks by preferred uses. By suspending move-on permits as a method of forcing Gray to sell his property to a developer, the City regulated in a manner that is functionally equivalent to a classic taking in which the government ousts an owner from his domain.
*621¶41 Guimont calls for the court to undertake a balancing test at this point of the takings analysis, if the regulation in question “substantially advances a legitimate state interest.” Guimont, 121 Wn.2d at 603-04. But see Lingle, 544 U.S. at 548 (the “substantially advances” inquiry is doctrinally and practically untenable in takings analysis). Because I do not believe the City had a legitimate interest in unlawfully terminating Gray’s nonconforming use, I would say balancing is unnecessary under the test as formulated in Guimont. More likely, though, the Guimont test will be replaced by the takings analysis recently articulated by the United States Supreme Court in Lingle, which continues to emphasize what are known as the Penn Central factors, after Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). They include the regulation’s economic impact on the property, the extent of the regulation’s interference with investment-backed expectations, and the character of the government action. Lingle, 544 U.S. at 539 (Penn Central factors “have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules.”).
¶42 The Penn Central factors support the conclusion that a taking occurred here. As Gray puts it, the mobile home park “was being slowly strangled by the loss of rental income from empty spaces that could not be filled.”50 Gray’s unrebutted testimony was that the property “was much more valuable as a mobile home park than as land with an illegal use on it, and the sale of the property that the City was trying to force me to agree to would have been financially ruinous.”51 Denying Gray the opportunity to get new tenants to replace those who moved out frustrated his investment-backed expectation that he would be allowed to operate the park as a nonconforming use despite changes in zoning. And the character of the government action was invasive, much like a physical taking in the sense that it *622was designed to oust Gray from his property so that a new owner could devote it to a use held in higher esteem by the City.
¶43 The majority asserts that Gray cannot prove economic impact because the City never actually denied a move-on permit during the period of time that the restriction was in effect. Majority at 615. But no reasonable mobile home owner would bother to apply for a permit in a park where the City had categorically declared that none would be issued.
¶44 In summary, Gray proved a regulatory taking. The judgment should be affirmed.
Reconsideration denied January 24, 2006.
Clerk’s Papers at 202. The passage of this ordinance implicitly recognizes that the effect of the site plan requirement, as interpreted and enforced by the Kilgore letter, was to terminate Gray’s legal nonconforming use.
Clerk’s Papers at 505.
Des Moines Municipal Code 18.48.090, set forth at Clerk’s Papers at 270-71.
Clerk’s Papers at 396.
Clerk’s Papers at 396.
Clerk’s Papers at 396.
Clerk’s Papers at 31-32.
Clerk’s Papers at 396-97.
Clerk’s Papers at 397.