(concurring) — While I concur in the majority's conclusion that the Mobile Home Relocation Assistance Act (Act) is unconstitutional as a violation of substantive due process, I write separately to highlight what I view as a troubling development in our takings law. In dicta, the majority has apparently accepted the notion that our recent decisions in Sintra, Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765, cert. denied sub nom. Robinson v. Seattle,_U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34, 830 P.2d 318, cert. denied,_U.S. _, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992), effected a significant transformation of the takings analysis which we so carefully and painstakingly constructed in Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 *615U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 112 L. Ed. 2d 238, 111 S. Ct. 284 (1990). I disagree both with the majority's nonbinding new formulation and with the theory that Sintra and Robinson worked such a change in our takings law.
I
The language in the majority which I find objectionable is dicta and as such is not binding on this court in subsequent cases. The plaintiffs have brought only a facial takings challenge against the Act, and the majority has correctly determined that no showing has been made of a complete deprivation of all economically viable use. Under the majority's analysis, this determination disposes of the plaintiffs' takings claims entirely. Consequently, those portions of the majority which otherwise describe our takings analysis are not necessary to the disposition of the case and are thus dicta. Even with this caveat in mind, however, I am still unable to join the majority opinion. For the sake of discussion in future cases an expression of my views may be helpful.
In Orion and Presbytery, this court developed a comprehensive framework for analyzing constitutional challenges to land use regulations. One of the critical features of that framework was the distinction it drew between challenges dealt with under the due process clause and challenges heard under the takings clause. The distinction was necessary because of conflict between two divergent lines of federal authority, one derived from Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887), and the other from Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158 (1922).
In Mugler, the United States Supreme Court emphatically rejected the notion that the State must compensate landowners for police power regulations which happen to affect the value of private land.
A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the *616health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit.
123 U.S. at 668-69. In Pennsylvania Coal, without discussing Mugler, the United States Supreme Court apparently reversed field, stating cryptically that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." 260 U.S. at 415. The tension between Mugler and Pennsylvania Coal was evident, and has been identified as the source of decades of confusion in takings law.11 To date, the United States Supreme Court has not provided any definitive resolution of the conflict, having overruled neither Mugler nor Pennsylvania Coal. Compare Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987) (applying a Mugler-type analysis) with Lucas v. South Carolina Coastal Coun.,_U.S._, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992) (determining when a land use regulation went "too far").
In Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 112 L. Ed. 2d 238, 111 S. Ct. 284 (1990), we developed a careful resolution of the Mugler-Pennsylvania Coal problem by recognizing a critical difference between due process and takings challenges to land use regulations. We held in Orion that generally when a landowner challenges a land use regulation safeguarding "the public interest in health, the environment, or the fiscal integrity of the community", that is, a valid police power regulation, the landowner is limited to the due process remedy of invalidation of the offending regulation. Orion, 109 Wn.2d at 657. The chief exception to this rule was the cir*617cumstance where the land use regulation served the purpose of "enhanc[ingj a publicly owned right in land." Orion, 109 Wn.2d at 651. In other words, land use regulations based on the police power were to be analyzed under due process rather than as takings, unless the State was in fact employing the guise of police power regulation to appropriate land for public use.
In Presbytery, we limited the Orion holding by recognizing that a land use regulation based on the police, power could be subject to takings challenges if the regulation in question "destroys one or more of the fundamental attributes of ownership — the right to possess, to exclude others and to dispose of property." Presbytery, 114 Wn.2d at 329-30. Together Orion and Presbytery thus described a simple rule for challenges to police power land use regulations: Such challenges were to be analyzed under the due process clause, unless the regulations were employed to enhance the value of publicly held property, or destroyed a fundamental attribute of property.
By clearly delineating the circumstances under which takings challenges would be permitted, the Orion-Presbytery test defused the basic tension between Mugler and Pennsylvania Coal.12 It also effectively balanced the competing rights of state agencies and property owners. On the one hand, governmental agencies were no longer required to run the risk of huge liabilities whenever they enacted innovative land use regulations.
[I]f local governments in the past had thought that enactment of a land use regulation might result in monetary awards, then "very likely no one would have proposed the planned unit development, the cluster zone, or the floating zone and even if those efforts had received the prior blessing of developers, it is highly unlikely that environmental con*618cems or regulation of coastal and inland waterways would ever have been risked."
Presbytery, 114 Wn.2d at 332 (quoting Sallet, Regulatory "Takings" and Just Compensation: The Supreme Court's Search for a Solution Continues, 18 Urb. Law. 635, 636 (1986) (quoting Wright, Exclusionary Land Use Controls and the Taking Issue, 8 Hastings Const. L.Q. 545, 583 (1980-1981))). On the other, landowners were protected from land use regulations that go "too far" by the guaranty of due process. As the majority amply demonstrates today, that guaranty is hardly toothless.
The Orion and Presbytery approach to police power land use regulations has come to be known, somewhat inaptly, as the "insulation doctrine". It is so called because most ordinary land use regulations are "insulated" from takings challenges. The appellation is inapposite, however, because such regulations are not insulated from due process examination.
The majority, in dicta, has departed from this portion of the comprehensive structure erected in Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1996 (1988) and Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911, 112 L. Ed. 2d 238, 111 S. Ct. 284 (1990). It states that a police power regulation will be subject to a takings challenge if it " 'seeks less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit.'" Majority, at 594-95 (quoting Robinson v. Seattle, 119 Wn.2d 34, 49, 830 P.2d 318, cert. denied,_U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992)).
The differences between this formulation and the one originally set out in Orion-Presbytery are substantial. Under the Orion-Presbytery test, a police power regulation is only subject to takings analysis when it enhances the value of publicly held property. Under the majority's version, such a regulation is subject to takings analysis when it requires the provision of a public benefit, even if the only properties benefited are privately held. The number of police power *619regulations which actually enhance the value of publicly held land is relatively small. The number of police power regulations which arguably require the provision of a public benefit is potentially enormous. Jettisoning the original form of the Orion-Presbytery test dramatically expands the potential number of takings challenges.
II
The majority's reformulation of the Orion-Presbytery test is troubling for a number of reasons. First, it requires courts to engage in a form of analysis which is logically incoherent and which has been explicitly, and recently, disavowed by the United States Supreme Court. Second, the majority's formulation has the capacity to resurrect all of the difficulties which initially spurred this court to develop the Orion-Presbytery test in the first place. And third, the cases on which the majority relies were, like this one, cases in which the appropriate formulation of the insulation doctrine was not directly relevant to the decision.
As noted above, the majority exposes a land use regulation to takings challenge when the regulation " 'seeks less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit.'" Majority, at 594-95 (quoting Robinson, 119 Wn.2d at 49). Effectively, this analysis requires courts to determine whether a given regulation is "harm-preventing", or "benefit-producing".
There is no principled manner in which to make this determination. Does a regulation which prohibits the building of a smoke-belching factory, for example, "prevent the harm of pollution" or "provide the benefit of clean air"? Does a regulation which requires coal companies to leave portions of their coal in the earth to support the surface "prevent the harm of subsidence" or "provide the benefit of stable land"? There simply are not principled answers to these questions. Indeed, since it is possible to argue that virtually any land use regulation provides some public benefit, the result of the majority's formulation may be to obliterate the insulation doctrine altogether.
*620The logical incoherence of the harm/benefit distinction was recently recognized by the United States Supreme Court in Lucas v. South Carolina Coastal Coun.,_U.S._, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992).13 The Court treated the harm/benefit analysis harshly, noting "the distinction between 'harm-preventing' and 'benefit-conferring' regulation is often in the eye of the beholder." 112 S. Ct. at 2897. Under the facts of Lucas, the Court observed:
One could say that imposing a servitude on Lucas's land is necessary in order to prevent his use of it from "harming" South Carolina's ecological resources; or, instead, in order to achieve the "benefits" of an ecological preserve.
112 S. Ct. at 2898.
The Orion-Presbytery analysis, by way of sharp contrast, does not rely upon the insupportable distinction between harm-preventing and benefit-producing regulations. Instead, it asks only whether the challenged regulation "enhance[s] a publicly owned right in land." Orion, 109 Wn.2d at 651. A court must inquire whether the regulation in question actually puts the privately held land to public use, rather than whether it produces benefit which might accrue to public lands as well as private. In other words, does the regulation effectively impose a servitude on the private land in favor of publicly held land?14
*621Of course, private property can be taken for public use even when there is no overt occupation or appropriation. Thus, this court entertained the possibility that the creation of the Padilla Bay Sanctuary worked a taking on Orion's tideland holdings because any reasonably profitable use of those tidelands may have been preempted by the Sanctuary itself. Orion Corp. v. State, 109 Wn.2d 621, 662, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1996 (1988). If the Sanctuary did in fact prohibit such use, it had effectively appropriated Orion's land on behalf of the Sanctuary and was thus a taking.15 Similarly, in United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946), the United States Supreme Court found a taking where a farmer lost his livestock business as a result of aircraft flying low over his land to touch down at a nearby airport. The Court found a taking because the aircraft essentially imposed a servitude on the private land in favor of the public airport. "[TJhe land is appropriated as directly and completely as if it were used for the runways themselves." 328 U.S. at 262.
The majority's formulation in dicta of the insulation doctrine is also troubling in that it resurrects some of the problems which Orion-Presbytery labored so mightily to avoid. As noted above, one of the principal motivating concerns of Orion-Presbytery was the possibility that uncertainty in takings law could stifle needed development in land use regulation through the specter of huge liability judgments against local government. See Orion, 109 Wn.2d at 649; Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 332, 787 P.2d 907, cert. *622denied, 498 U.S. 911, 112 L. Ed. 2d 238, 111 S. Ct. 284 (1990). By stating a test as amorphous and manipulable as the harm/benefit distinction, the majority re-creates that uncertainty. Since there is no principled fashion in which a court can determine whether a given regulation is harm preventing or benefit producing, there is of course no way for regulators to be able to predict judicial response. Under the majority's formulation, takings law is returning to where it was prior to Orion and Presbytery.
In revising the Orion-Presbytery test, the majority chiefly relies upon this court's recent decisions in Sintra, Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765, cert. denied sub nom. Robinson v. Seattle,_U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992) and Robinson v. Seattle, 119 Wn.2d 34, 830 P.2d 318, cert. denied,_U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992). While it is true that the court in both of those cases described the Orion-Presbytery test in the same manner as does the majority here, in neither case was the shift in language necessary to the decision reached. Furthermore, neither decision discussed the possibility that it was working a fundamental change in the Orion-Presbytery test and thus the court did not have an opportunity to discuss the merits or demerits of a revision in the takings law.
In Sintra and Robinson, the plaintiff landowners brought a 42 U.S.C. § 1983 action against the City of Seattle,16 citing violations of due process and of the takings clause. As a threshold matter, the City defended against the takings claim on Orion-Presbytery insulation doctrine grounds. It argued that the regulation in question, the Housing Preservation Ordinance (HPO), was a valid police power measure enacted to address the serious problem of displacement and homelessness of low-income tenants. Sintra, 119 Wn.2d at *62314 (citing Brief of Respondent, at 37). As such, the City believed the HPO was protected from a takings challenge by the insulation doctrine.
In reviewing this claim, the Sintra court transformed the Orion-Presbytery analysis. While it initially cited Presbytery for the proposition that regulations are only subject to takings challenges when they "actually enhance [] a publicly owned right in property", Sintra, 119 Wn.2d at 14 (quoting Presbytery, 114 Wn.2d at 329-30), it later replaced the Orion-Presbytery rule with the notion that regulations may be subject to takings challenges when they "enhance public interests.(Italics mine.) Sintra, 119 Wn.2d at 15. As described above, the difference between "enhancing a publicly owned right in property" and "enhancing a public interest" is tremendous, yet the Sintra court gave no indication that any change, much less a significant one, had occurred.
The Sintra court then expressed its opinion that, under its new test, the HPO was a benefit-producing measure rather than a harm-preventing measure. Sintra, 119 Wn.2d at 15-16.17 The court, however, did not rest upon this determination. Instead, it noted that since the HPO had already been held to be an invalid tax in San Telmo Assocs. v. Seattle, 108 Wn.2d 20, 735 P.2d 673 (1987), the HPO was not a valid police power regulation at all. It stated:
Certainly, a regulatory scheme which is later determined to be a tax surpasses the proper scope of the City's police power. We, therefore, can determine, as a matter of law, that the HPO was not a proper exercise of the City's police power, and Presbytery's threshold requirements have been met here.
(Footnote omitted.) 119 Wn.2d at 16. Thus, since the court determined that the HPO's inherent invalidity met the requirements of the insulation doctrine, it was unnecessary *624for the court to decide whether to apply the original version of the doctrine or its new version.18
The court's decision in Robinson v. Seattle, 119 Wn.2d 34, 830 P.2d 318, cert. denied,_U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992) was similar. There, a class of landowners sought civil rights damages under 42 U.S.C. § 1983 against the City of Seattle for the City's enforcement of the same HPO at issue in Sintra, Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765, cert. denied sub nom. Robinson v. Seattle,_ U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992). As in Sintra, the gravamen of the civil rights claims were takings without just compensation and violations of substantive due process. 119 Wn.2d at 48.
In Robinson, the court did not even state the Orion-Presbytery test in its original form, nor, like the Sintra court, did it indicate that a change had taken place. Instead, it simply asserted that regulations which "go[] beyond mere harm prevention to require a property owner to provide a public benefit". 119 Wn.2d at 50. The Robinson court, like the Sintra court, then expressed the opinion that the HPO surmounted the insulation doctrine because it "required property owners to provide a public benefit". 119 Wn.2d at 52.
Despite these initial observations, the Robinson court did not conclude that there had been a taking. Instead, the court held that the Robinsons had failed to make a sufficient facial takings challenge to the HPO, in that they had not shown that the regulation had "denied all economically viable use of any regulated property." (Italics omitted.) Robinson, 119 Wn.2d at 53-54. Since the Robinsons had only made a facial takings challenge to the HPO, and had failed to adequately support that challenge, their claim failed regardless of whether the Orion-Presbytery insulation doctrine or the new version was employed. As was the case with Sintra, the adoption of the *625new version of the insulation doctrine was not necessary to the decision.19
Our decisions in Sintra and Robinson, like our decision in this case, thus do not represent binding statements of the appropriate scope of the insulation doctrine.
Ill
The majority's unnecessary and nonbinding reformulation of the Orion-Presbytery insulation doctrine represents an alarming trend in our takings law. While the majority's statements are only dicta, this trend should not be allowed to continue and perhaps crystallize into settled law without comment. Since I believe the changes endorsed by the majority are unwise and unsupported by our case law, I concur only in the opinion of the court that the Act violates substantive due process and the judgment of the court that the Act has not worked a taking.
Reconsideration denied September 10, 1993.
See, e.g., Settle, Regulatory Taking Doctrine in Washington: Now You See It, Now You Don’t, 12 U. Puget Sound L. Rev. 339, 345-51 (1989); Stoebuck, San Diego Gas: Problems, Pitfalls and a Better Way, 25 J. Urb. & Contemp. L. 3, 11-14 (1983). See also Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. Cal. L. Rev. 561, 587-97 (1983-1984) (describing fundamental tension between civic duty conceptions of property and those based on individual liberty).
The chief analytic hurdle faced by the Orion court in originally elucidating its resolution of the Mugler-Pennsylvania Coal tension was the fact that Justice Holmes had employed the term "taking" in describing the effect of a land use regulation that went "too far". 260 U.S. at 415. To overcome this hurdle, the Orion court recognized, as had previous courts, that the Pennsylvania Coal "too far" test was in fact a metaphor for due process analysis. Orion, 109 Wn.2d at 651 (citing Fred F. French Investing Co. v. New York, 39 N.Y.2d 587, 350 N.E.2d 381, 385 N.Y.S.2d 5 (1976)).
I recognize that the majority has reserved the question of the impact of Lucas on the insulation doctrine, at least partially in order to avoid "dismantling our takings framework, carefully crafted in Presbytery, Sintra, and Robinson". Majority, at 603 n.5. This aspect of Lucas, however, does not require us to dismantle our takings framework; instead, it indicates that certain mutations of that framework were unwise and therefore supports a return to the original Orion-Presbytery test.
Some commentators have misunderstood this aspect of the Orion-Presbytery framework. See, e.g., Comment, Taking Issue With. Takings: Has the Washington State Supreme Court Gone Too Far?, 66 Wash. L. Rev. 545, 556 (1991). Indeed, a footnote in Presbytery itself appears to conclude that the test requires a harm/ benefit analysis. Presbytery, 114 Wn.2d at 329 n.13. This is not a necessary result, however. Commentators have repeatedly recognized that a public use understanding of the takings clause does not necessarily devolve into the "morass" of harm/benefit analysis. See, e.g., Rubenfeld, Usings, 102 Yale L.J. 1077, 1111-30 (1993); Stoebuck, Police Power, Takings, and Due Process, 37 Wash. & Lee L. Rev. 1057, 1083-89 (1980). Properly put, the question is not whether a given regulation *621provides a benefit for public lands, which would indeed re-create the harm/ benefit problem, but rather whether the regulation provides for public use of the private property. This is why shutting down a smoke-emitting factory (which may benefit all nearby land, including public land) is not a taking, Hadacheck v. Sebastian, 239 U.S. 394, 60 L. Ed. 348, 36 S. Ct. 143 (1915), but creating a navigable servitude into a private pond for public use is, Kaiser Aetna v. United States, 444 U.S. 164, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979).
The court remanded to determine whether any such reasonably profitable use existed. Orion, 109 Wn.2d at 662.
42 U.S.C. § 1983 provides what amounts to a tort remedy for violations of federal civil rights. In order to prevail on such a claim, a plaintiff must show: (1) a deprivation of a federal constitutional or statutory right; (2) that the deprivation was caused by someone acting "under color of state law". Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); see also Sintra, Inc. v. Seattle, 119 Wn.2d 1, 12, 829 P.2d 765, cert. denied sub nom. Robinson v. Seattle,_U.S._, 121 L. Ed. 2d 598, 113 S. Ct. 676 (1992).
This aspect of the Sintra opinion provides an excellent example of the manipulability of the harm/benefit distinction. There, the court stated that the HPO was "benefit producing" because the "harm sought to be prevented — people standing on the street comer with nowhere to go — was exceeded." Sintra, 119 Wn.2d at 15-16. It is difficult to see why building new housing does not serve to prevent the harm of "people standing on the street comer".
The court's decision in Sintra is admittedly unclear on this point. The Sintra court apparently believed that the invalidity of the HPO as a tax was synonymous with its character as a benefit-producing police power regulation. Sintra, 119 Wn.2d at 15-16. Since benefit-producing police power regulations are not per se invalid, the most sensible reading of the Sintra decision is that it surmounted the Presbytery threshold simply by noting that the HPO was an invalid exercise of the police power.
It might be argued that the elaborate analyses of takings challenges which we have established in our cases actually require a linear analytic progression, rather than the more limited approach suggested by my discussion. Under that view, in order to reach the question of the facial challenge in Robinson, it was necessary for the court to first dispose of the insulation doctrine. It is, however, commonplace for courts to ignore extraneous issues in order to decide cases on dispositive issues, even when the extraneous issues may he analytically prior to the dispositive ones. In determining the holding of a particular case, therefore, we need look only to those dispositive issues.