Rental Housing Assoc., App/x-resps V. City Of Seattle, Resp/x-app ( 2022 )


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  •        THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
    RENTAL HOUSING ASSOCIATION;                                    No. 82469-4-I
    ELENA BRUK; SCOTT DOLFAY; CJD
    INVESTMENTS, LLC; ZELLA                                        DIVISION ONE
    APARTMENTS, LLC,
    PUBLISHED OPINION
    Appellants,
    v.
    CITY OF SEATTLE,
    Respondents.
    ANDRUS, A.C.J. — In early 2020, the Seattle City Council passed three
    ordinances: one limiting a landlord’s ability to evict a tenant for nonpayment of rent
    during three winter months, one prohibiting a landlord from evicting a tenant for
    nonpayment of rent for six months after the end of the COVID-19 civil emergency,
    and one requiring the landlord to accept installment payments of unpaid rent for a
    certain period of time after the end of the civil emergency. The Rental Housing
    Association of Washington (RHAWA) and several landlords challenge the
    constitutionality of these ordinances.
    On summary judgment, the trial court concluded that a provision banning
    the accrual of interest on unpaid rent during the civil emergency and for one year
    Citations and pin cites are based on the Westlaw online version of the cited material.
    No. 82469-4-I/2
    thereafter was preempted by state law. It upheld the remaining provisions of the
    three challenged ordinances.
    We conclude that the ordinance prohibiting a landlord from evicting a tenant
    for nonpayment of rent for six months after the end of the civil emergency, without
    affording the landlord the opportunity to challenge a tenant’s self-certification of a
    financial hardship, violates the landlord’s right to procedural due process. We
    otherwise affirm.
    FACTUAL BACKGROUND
    In February 2020, the Seattle City Council enacted Ordinance 126041, now
    codified as SMC 22.205.080, precluding certain evictions during the winter months
    (“winter eviction ban”). The winter eviction ban provides:
    [I]t is a defense to eviction if:
    A. The eviction would result in the tenant having to vacate the
    housing unit at any time between December 1 and March 1; and
    B. The tenant household is a moderate-income household as
    defined in Section 23.84A.016; 1 and
    C. The housing unit that the tenant would have to vacate is owned
    by a person who owns more than four rental housing units in The
    City of Seattle. For purposes of this subsection 22.205.080.C,
    "owns" includes having an ownership interest in the housing
    units.
    SMC 22.205.080(A)-(C). The stated goal of the ordinance is to “protect the public
    health, safety, and welfare by reducing the number of individuals and families
    1 SMC 23.84A.016 defines “[h]ousehold, moderate-income” as “a household whose income does
    not exceed median income.” SMC 23.84A.025 defines “median income” as median family income
    for the area as determined by the U.S. Department of Housing and Urban Development (HUD) The
    Landlords presented evidence that under HUD regulations, the median family income in Seattle,
    Washington, in 2019 was $108,600.00 for a four-person household.
    -2-
    No. 82469-4-I/3
    entering into homelessness during the wintertime” and to lower “the number of
    people at higher risk of developing exposure-related conditions.”
    In March 2020, the COVID-19 pandemic began. Governor Jay Inslee and
    Seattle’s then Mayor Jenny Durkan issued emergency declarations banning
    residential rental evictions. Shortly thereafter, the City Council passed Ordinance
    126368 codifying the mayor’s COVID-19 eviction ban. SMC 22.205.100 provides:
    A. Subject to the requirements of subsection 22.205.100.B, it is a
    defense to eviction if the tenant fails to pay rent due during the
    civil emergency proclaimed by Mayor Durkan on March 3, 2020,
    [that] the tenant has suffered a financial hardship during the civil
    emergency proclaimed by Mayor Durkan on March 3, 2020, and
    the reason for terminating the tenancy is:
    1. The tenant fails to comply with a 14-day notice to pay rent
    or vacate pursuant to RCW 59.12.030(3) for rent due
    during the civil emergency proclaimed by Mayor Durkan
    on March 3, 2020; or
    2. The tenant habitually fails to pay rent resulting in four or
    more pay-or-vacate notices in a 12-month period . . . .
    B. The tenant may invoke the defense provided in subsection
    22.205.100.A only if the tenant submits a declaration or self-
    certification asserting the tenant has suffered a financial hardship
    and was therefore unable to pay rent during the civil emergency
    proclaimed by Mayor Durkan on March 3, 2020.
    Mayor Durkan extended the civil emergency and eviction moratorium to January
    15, 2022. 2 After taking office in January 2022, the newly elected mayor, Bruce
    Harrell, extended the moratorium to February 14, 2022, 3 then again to February
    2 City of Seattle, Office of the Mayor, Executive Order 2021-07, Executive-Order-2021-07-
    Continued-Extension-of-COVID-19-Closures-and-Relief-Policies.pdf (seattle.gov)
    3    City     of   Seattle,    Office   of   the   City   Clerk,   Executive   Order   2022-01,
    http://clerk.seattle.gov/search/results?s6=executive+adj+order&l=200&Sect1=IMAGE&Sect2=TH
    ESON&Sect3=PLURON&Sect4=AND&Sect5=CFCF1&Sect6=HITOFF&d=CFCF&p=1&u=%2Fse
    arch%2Fclerk-files&r=3&f=G.
    -3-
    No. 82469-4-I/4
    28, 2022. 4 This provision precluded residential evictions in Seattle if tenants could
    establish they suffered a financial hardship as a result of the pandemic. The
    Landlords do not challenge this eviction restriction.
    The City Council, however, took the eviction ban a step further.
    Recognizing that the “economic impacts from the COVID-19 emergency are likely
    to last much longer than the civil emergency itself,” on May 4, 2020, the City
    Council enacted Ordinance 126075, extending the eviction ban for an additional
    six months after the mayor lifts the eviction moratorium (“six-month eviction ban
    extension”). Ordinance 126075, codified as SMC 22.205.090, is similar but not
    identical, to SMC 22.205.100. It provides:
    A. Subject to the requirements of subsection 22.205.090.B, it is a
    defense to eviction if the eviction would result in the tenant
    having to vacate the housing unit within six months after the
    termination of the Mayor's eviction moratorium, and if the reason
    for terminating the tenancy is:
    1. The tenant fails to comply with a 14-day notice to pay rent
    or vacate pursuant to RCW 59.12.030(3) for rent due
    during, or within six months after the termination of, the
    Mayor's residential eviction moratorium; or
    2. The tenant habitually fails to pay rent resulting in four or
    more pay-or-vacate notices in a 12-month period . . . .
    B. The tenant may invoke the defense provided in subsection
    22.205.090.A only if the tenant has submitted a declaration or
    self-certification asserting the tenant has suffered a financial
    hardship and is therefore unable to pay rent.
    4    City     of   Seattle,   Office    of  the    City  Clerk,   Executive  Order 2022-03,
    http://clerk.seattle.gov/search/results?s6=executive+adj+order&l=200&Sect1=IMAGE&Sect2=TH
    ESON&Sect3=PLURON&Sect4=AND&Sect5=CFCF1&Sect6=HITOFF&d=CFCF&p=1&u=%2Fse
    arch%2Fclerk-files&r=1&f=G.
    -4-
    No. 82469-4-I/5
    Notably, the six-month eviction ban extension drops the requirement that the
    tenant prove they suffered a financial hardship during the COVID-19 civil
    emergency. While the tenant must submit a “self-certification” to assert a financial
    hardship, there is no provision requiring the tenant to actually prove the existence
    of such a hardship, as there appears to be under SMC 22.205.100.
    Then, on May 11, 2020, the City Council enacted Ordinance 126081, the
    “payment plan ordinance.” 5 It provides:
    A. A tenant who fails to pay rent when due during, or within six
    months after the termination of, the civil emergency proclaimed by
    Mayor Durkan on March 3, 2020, may elect to pay such overdue
    rent in installments. The tenant shall pay one month or less of
    overdue rent in three consecutive, equal monthly installments.
    The tenant shall pay over one month and up to two months of
    overdue rent in five consecutive, equal monthly payments. The
    tenant shall pay over two months of overdue rent in six
    consecutive, equal monthly payments. Any remainder from an
    uneven division of payments will be part of the last payment. The
    tenant may propose an alternative payment schedule, which, if the
    landlord agrees to it, shall be described in writing and signed by
    the tenant and landlord and deemed an amendment to any
    existing rental agreement.
    B. No late fee, interest, or other charge due to late payment of rent
    shall accrue during, or within one year after the termination of, the
    civil emergency proclaimed by Mayor Durkan on March 3, 2020.
    ....
    E. Failure of the owner to accept payment under the installment
    schedule provided in subsection 2.A of this ordinance is a defense
    to eviction.
    Ord. 126081 sec. 2. The City Council stated that the purpose of both the six-month
    eviction ban extension and this payment plan requirement is to reduce financial
    5Ordinance 126081 has yet to be codified into the Seattle Municipal Code. The full text of the
    ordinance can be accessed here: http://clerk.seattle.gov/search/ordinances/126081.
    -5-
    No. 82469-4-I/6
    instability and the risk of homelessness among tenants in Seattle as a result of
    COVID-19.
    In September 2020, RHAWA and several Seattle landlords brought suit
    challenging the constitutionality of these ordinances.     On cross-motions for
    summary judgment, the trial court largely upheld the ordinances, but ruled that
    state law preempts the payment plan ordinance’s ban on the accrual of interest on
    unpaid rent during and for a year after the civil emergency.       The Landlords
    appealed and the City cross-appealed the invalidation of the interest accrual ban.
    ANALYSIS
    We review a summary judgment order de novo and perform the same
    inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC, 
    196 Wn.2d 199
    , 205, 
    471 P.3d 871
     (2020). Constitutional questions are issues of law and are
    also reviewed de novo. City of Redmond v. Moore, 
    151 Wn.2d 664
    , 668, 
    91 P.3d 875
     (2004).
    The Landlords present facial constitutional challenges to the ordinances. In
    facial challenges, we consider only if the ordinances’ language violates the
    constitution and not whether the ordinance would be constitutional “as applied” to
    the facts of a particular case. JJR Inc. v. City of Seattle, 
    126 Wn.2d 1
    , 3-4, 
    891 P.2d 720
     (1995). We reject a facial claim “if there are any circumstances where
    the [challenged law] can constitutionally be applied.” Wash. State Republican
    Party v. Wash. State Pub. Disclosure Comm’n, 
    141 Wn.2d 245
    , 282 n.14, 
    4 P.3d 808
     (2000).
    -6-
    No. 82469-4-I/7
    A. Preemption
    The Landlords first argue that the ordinances conflict with and are therefore
    preempted by state law. The trial court ruled that state law only preempts the
    payment plan ordinance’s ban on interest accruing on unpaid rent due during and
    within one year of the termination of the mayor’s civil emergency proclamation.
    We agree with the trial court and conclude that the remaining provisions of the
    ordinances can be harmonized with state law.
    “Any county, city, town or township may make and enforce within its limits
    all such local police, sanitary and other regulations as are not in conflict with
    general laws.” Const. art. XI, sec. 11. “[A] state statute preempts an ordinance on
    the same subject if the statute occupies the field, leaving no room for concurrent
    jurisdiction, or if a conflict exists such that the statute and the ordinance may not
    be harmonized.” Lawson v. City of Pasco, 
    168 Wn.2d 675
    , 679, 
    230 P.3d 1038
    (2010). The Landlords here only argue conflict preemption, which “arises when an
    ordinance permits what state law forbids or forbids what state law permits.” Id. at
    682. An ordinance is constitutionally invalid if it “directly and irreconcilably conflicts
    with the statute.” Brown v. City of Yakima, 
    116 Wn.2d 556
    , 561, 
    807 P.2d 353
    (1991).   “If the two may be harmonized, however, no conflict will be found.”
    Lawson, 
    168 Wn.2d at 682
    . “[A] local ordinance may go further in its prohibition
    than state law.” Rabon v. City of Seattle, 
    135 Wn.2d 278
    , 293, 
    957 P.2d 621
    (1998).
    -7-
    No. 82469-4-I/8
    1.      Eviction Bans
    The Landlords argue that the two eviction bans are preempted by provisions
    of the unlawful detainer statute, RCW 59.12.030(3); the Residential Landlord
    Tenant Act of 1973 (RLTA), RCW 59.18.130 and .650; and the ejectment statute,
    RCW 7.28.250, by prohibiting evictions that state law allows. Because the winter
    eviction ban and the six-month eviction ban extension do not prohibit any landlord
    from evicting a tenant who has defaulted on rent, but merely regulates the timing
    of the eviction, we reject this argument.
    RCW 59.18.130 requires that tenants shall pay rent “at such times and in
    such amounts as provided for in the rental agreement.”                    RCW 59.12.030(3)
    provides that a tenant is liable for unlawful detainer if they continue in possession
    of rental property after a default in rent and after receiving adequate notice from
    the landlord. RCW 59.18.650(1)(a) and (2)(a) permits a landlord to evict a tenant
    for remaining in possession of the leased premises after a default in rent and the
    issuance of a written notice to pay or vacate under RCW 59.12.030(3). RCW
    7.28.250 provides that where a tenant fails to pay rent, “the landlord has a
    subsisting right to reenter for such failure; he or she may bring an action to recover
    the possession of such property, and such action is equivalent to a demand of the
    rent and a reentry upon the property.” 6
    6  Both ejectment and unlawful detainer are legal methods of evicting tenants who do not pay their
    rent. Bar K Land Co. v. Webb, 
    72 Wn. App. 380
    , 383, 
    864 P.2d 435
     (1993). Unlawful detainer
    actions under ch. 59.18 RCW are special statutory proceedings with the limited purpose of
    hastening the recovery of possession of rental property. 
    Id.
     The superior court’s jurisdiction is
    limited to the primary issue of possession and incidental issues such as restitution, rent, or
    damages. 
    Id.
     Ejectment, however, is a remedy for someone who, having a claim of paramount
    title, is out of possession. 
    Id.
     Counterclaims may be asserted in an ejectment action. 
    Id.
    -8-
    No. 82469-4-I/9
    The Landlords maintain that the winter eviction ban and the six-month
    eviction ban extension conflict with these statutory provisions by precluding them
    from obtaining a court order of eviction or ejectment after the nonpayment of rent.
    But our Supreme Court has held that state landlord/tenant laws do not preempt
    local ordinances that allow tenants to raise defenses to eviction in unlawful
    detainer proceedings.
    In Kennedy v. City of Seattle, 
    94 Wn.2d 376
    , 
    617 P.2d 713
     (1980), owners
    of two houseboat moorage sites challenged a Seattle ordinance limiting the right
    to evict houseboat occupants to six specified reasons.                   
    Id. at 379-80
    . 7      The
    landlords argued that the ordinance was preempted by the unlawful detainer
    statute and the RLTA because it placed limitations on their ability to evict tenants.
    
    Id. at 383-84
    . The court disagreed:
    There is no preemption expressly or by implication, nor is there an
    irreconcilable conflict between the statutes and the ordinance. A
    defendant in an unlawful detainer action may assert any defenses
    available. RCW 59.16.030; 59.18.380. The ordinance does not raise
    further procedural barriers between landlord and tenant but simply
    represents another defense for the tenant.
    
    Id. at 384
    . Under Kennedy, a municipality may enact defenses to eviction without
    coming into conflict with the unlawful detainer statute or RLTA.
    The Supreme Court extended the holding in Kennedy in Margola Assoc. v.
    City of Seattle, 
    121 Wn.2d 625
    , 652, 
    854 P.2d 23
     (1993) (abrogated on other
    7 These are: (1) failure to pay rent; (2) breach of covenant (excluding the obligation to surrender
    the site); (3) failure to abate a nuisance or causing a substantial damage to the moorage or
    substantially interfering with the comfort, safety or enjoyment of other floating home properties at
    the moorage; (4) failure to execute a lease not in excess of 5 years at a reasonable rent; (5) a
    change in use of the moorage (with several further restrictions) with 6 months' advance notice; and
    (6) if the moorage owner, with 6 months' notice, wishes to occupy the moorage site and finds the
    displaced houseboat owner another lawful moorage site within the City of Seattle. 
    Id.
    -9-
    No. 82469-4-I/10
    grounds by Yim v. City of Seattle, 
    194 Wn.2d 682
    , 703, 
    451 P.3d 694
     (2019)).
    There, the court rejected a preemption challenge from landlords who argued that
    the RLTA preempted a Seattle ordinance prohibiting the eviction of tenants if the
    landlord failed to register the building as rental housing. Id. at 651. As in Kennedy,
    the court held that “[t]he registration ordinance likewise creates an additional
    affirmative defense for a tenant” and is thus not preempted by state law. Id. at
    652. This was the case despite the fact that the registration ordinance created a
    defense to eviction for any reason, including nonpayment of rent. Id. at 632.
    The Landlords distinguish Kennedy and Margola, arguing that in Kennedy,
    the ordinance specifically allowed for eviction based on the tenant’s failure to pay
    rent. 
    94 Wn.2d at 379
    . And in Margola, the Landlords argue, the defense to
    eviction was linked to the landlord’s failure to comply with registration
    requirements, and not to the nonpayment of rent. They further argue that under
    the RLTA, tenants may not exercise their rights to any remedies available under
    the RLTA unless they are current in the payment of rent. RCW 59.18.080. But
    RCW 59.18.080, by its language, applies only to a tenant’s remedies under the
    RLTA, not to remedies or defenses arising from other laws or ordinances. And the
    Landlord’s efforts to distinguish Kennedy and Margola are unpersuasive.
    First, neither the unlawful detainer statute nor the RLTA limits the defenses
    available to a tenant in an unlawful detainer action. As in Kennedy, the ordinances
    here do not prevent landlords from filing unlawful detainer actions; each explicitly
    provides that they offer a new defense to such an action. And the ordinance at
    issue in Margola allowed a tenant to raise as a defense to eviction the landlord’s
    - 10 -
    No. 82469-4-I/11
    noncompliance with the registration ordinance, even when the unlawful detainer
    action was based on the nonpayment of rent.
    Second, the ordinances do not remove a tenant’s obligation to pay rent,
    prevent a landlord from bringing an unlawful detainer action, or eliminate a tenant’s
    liability for their unlawful detainer under RCW 59.12.030(3). Instead, they provide
    a temporary defense to evictions, even where the tenant is in arrears, in certain
    limited circumstances.      There is nothing in the unlawful detainer statute that
    requires that an eviction occur within any specific period of time. Under the winter
    ban, a landlord can file an unlawful detainer action, obtain an order finding the
    tenant to be in unlawful detainer status, and ask the court to schedule the issuance
    of a writ of restitution for execution after March 1. Under the COVID six-month
    eviction ban extension, the landlord could similarly initiate an unlawful detainer
    action at any time, obtain an order finding the tenant to be in arrears on rent and
    request the court to schedule the issuance of a writ of restitution after the six-month
    extension period expires.
    Because the ordinances do not erect new procedural barriers to unlawful
    detainer but merely determine the timing of the issuance of writs of restitution, we
    conclude that the defenses to eviction provided in the ordinances do not
    irreconcilably conflict with state law.
    2.     Payment Plan Ordinance
    The Landlords next argue that the newly enacted state repayment plan
    statute, codified in RCW 59.18.630, conflicts with and preempts the payment plan
    requirement contained in Ordinance 126081. We conclude the Landlords’ facial
    - 11 -
    No. 82469-4-I/12
    challenge fails because the city ordinance can be applied in a way to eliminate any
    conflict with the state statute.
    In 2021, the state legislature enacted a payment plan structure for renters
    experiencing financial hardship due to COVID-19. RCW 59.18.630(2) provides:
    If a tenant has remaining unpaid rent that accrued between March 1,
    2020, and six months following the expiration of the eviction
    moratorium or the end of the public health emergency, whichever is
    greater, the landlord must offer the tenant a reasonable schedule for
    repayment of the unpaid rent that does not exceed monthly
    payments equal to one-third of the monthly rental charges during the
    period of accrued debt. (Emphasis added.)
    RCW 59.18.630(3) lists the requirements of such plans. 8 RCW 59.18.630(4)
    provides that “It is a defense to an eviction under RCW 59.12.030(3) that a landlord
    did not offer a repayment plan in conformity with this section.”
    The Landlords argue that the City’s ordinance conflicts with state law
    because, while state law allows for a flexible payment schedule, the ordinance
    creates a mandatory fixed payment schedule based on the number of monthly rent
    payments the tenant has missed.
    It is possible that a payment schedule under Ordinance 126081 could
    conflict with RCW 59.18.630’s prohibition on payments exceeding one-third of
    monthly rental charges. For instance, if a tenant misses two months of rent at
    $2,000 per month, Seattle’s ordinance would require the tenant to pay the $4,000
    debt in five equal monthly payments of $800, which would exceed the permissible
    8 The repayment plan may not require payment until 30 days after it is offered to the tenant; may
    not include any late fees, attorney fees or other charges; must allow for payment from any source
    of income, including churches or government agencies; and may not be conditioned on compliance
    with the rental agreement or a requirement that the tenant apply for government benefits. RCW
    59.18.630(3)(a)-(d).
    - 12 -
    No. 82469-4-I/13
    amount that a landlord could demand under state law. But the ordinance has a
    savings clause—it provides that the tenant may elect either to repay past rent on
    the schedule set out in the ordinance or to offer the landlord a different payment
    schedule. Ordinance 126081, § 2(A). “The tenant may propose an alternative
    payment schedule, which, if the landlord agrees to it, shall be described in writing
    and signed by the tenant and landlord and deemed an amendment to any existing
    rental agreement.” Id.
    Because the tenant can choose between the state repayment law, capping
    the amount of the payments to one-third of the monthly rent, and the city’s
    repayment ordinance, with the state law requiring lower monthly payments than
    the city ordinance, most tenants would foreseeably elect a payment plan consistent
    with state law. 9 Although there could be a situation where the ordinance would
    require the tenant to make payments in excess of one-third of that tenant’s monthly
    rent, and thereby violate state law, the ordinance’s savings clause eliminates any
    conflict between the two. Because there are circumstances where the payment
    plan ordinance can constitutionally be applied, the Landlords’ facial challenge fails.
    3.       Ban on Accrual of Interest
    The Landlords next argue that RCW 19.52.010 preempts Ordinance
    126081’s ban on interest accruing on rent due during or within one year of the
    9 If the landlord offers a repayment plan consistent with state law, and the tenant refuses to consent
    to it, the landlord may evict that tenant. RCW 59.18.630(2). The tenant thus has a strong incentive
    to accept the payment plan required by state law.
    - 13 -
    No. 82469-4-I/14
    termination of the civil emergency proclamation.         We affirm the trial court’s
    conclusion that the state statute preempts this ordinance provision.
    Section 2(B) of Ordinance 126081 provides that “[n]o . . . interest . . . due to
    late payment of rent shall accrue during, or within one year after the termination
    of, the civil emergency.” But RCW 19.52.010(1) states “every loan or forbearance
    of money, goods, or thing in action shall bear interest at the rate of twelve percent
    per annum where no different rate is agreed to in writing between the parties.” A
    party is entitled under this statute to prejudgment interest on any liquidated claim
    to compensate them for loss of use on money wrongfully withheld by another party.
    TJ Landco, LLC v. Harley C. Douglass, Inc., 
    186 Wn. App. 249
    , 256, 
    346 P.3d 777
    (2015). When a party breaches an obligation to pay a specified amount, a new
    forbearance is created and that forbearance triggers the prejudgment interest
    statute. 
    Id.
     Unpaid rent accrues interest at a default rate of 12 percent per annum
    when the parties’ agreement does not provide otherwise.              In re Estate of
    Wimberley, 
    186 Wn. App. 475
    , 511, 
    349 P.3d 11
     (2015).
    The ordinance prohibiting the accrual of prejudgment interest on unpaid
    rents violates the rights conferred on any creditor under RCW 19.52.010. There
    is no way of interpreting the provision banning the accrual of interest so that it does
    not conflict with RW 19.52.010. We therefore affirm the trial court’s ruling that the
    interest provision in Ordinance 126081 is preempted by state law.
    B. Takings Clause
    The Landlords next challenge the ordinances as an unconstitutional taking
    without compensation in violation of article I, section 16 to the Washington
    - 14 -
    No. 82469-4-I/15
    Constitution. 10 They contend that the ordinances are a per se physical taking
    because they dispossess the Landlords of their right to occupy their own
    property. 11 We disagree that regulating the landlord-tenant relationship in this
    manner constitutes a per se physical taking of the leased premises.
    Under the takings clause of the Fifth Amendment to the U.S. Constitution,
    when the government physically acquires private property for a public use, there
    is a clear and categorical obligation to provide the owner with just compensation.
    Cedar Point Nursery v. Hassid, __ U.S. __, 
    141 S. Ct. 2063
    , 2071, 
    210 L. Ed. 2d 369
     (2021) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
    Agency, 
    535 U.S. 302
    , 321, 
    122 S. Ct. 1465
    , 
    152 L. Ed. 2d 517
     (2002)).
    Government action that physically appropriates property is no less a physical
    taking because it arises from a regulation. Id. at 2072. “The essential question is
    . . . whether the government has physically taken property for itself or someone
    else—by whatever means—or has instead restricted a property owner's ability to
    use his own property.”            Id.    Whenever a regulation results in a physical
    appropriation of property, a per se taking has occurred. 12 Id.
    10 The takings clause of the Fifth Amendment to the United States Constitution provides, “nor shall
    private property be taken for public use, without just compensation.” Similarly, article I, section 16
    of the state constitution provides, “No private property shall be taken or damaged for public or
    private use without just compensation having been first made.”
    11 The Landlords also argue that the ban on interest payments is also a taking. Because we affirm
    the trial court’s conclusion that Ordinance 126081’s ban on interest is preempted by state law, we
    need not reach this takings claim.
    12 In Manufactured Housing Communities of Washington v. State, 
    142 Wn.2d 347
    , 361, 
    13 P.3d 183
     (2000), abrogated by Chong Yim v. City of Seattle, 
    194 Wn.2d 651
    , 
    451 P.3d 675
     (2019), the
    Supreme Court held 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.” In Yim, the Supreme Court held that it would nevertheless follow federal
    case law for evaluating whether a law constitutes a regulatory taking. 194 Wn.2d at 667. Now that
    the U.S. Supreme Court appears to apply the same test for both per se physical and regulatory
    takings, we assume our Supreme Court will continue to apply the federal test. We do so here.
    - 15 -
    No. 82469-4-I/16
    The Landlords argue that the Ordinances are per se takings because they
    eliminate the owner’s right to exclude tenants from their property or to sue to collect
    past due rents. They rely heavily on the recent U.S. Supreme Court decision
    Cedar Point Nursery.      There, plaintiffs challenged a California regulation that
    granted labor organizations the right to access an agricultural employer’s property
    to solicit support from workers for unionization.       Id. at 2069-70.     The court
    concluded that “[t]he access regulation appropriates a right to invade the growers’
    property and therefore constitutes a per se physical taking. The regulation grants
    union organizers a right to physically enter and occupy the growers’ land for three
    hours per day, 120 days per year” and thus “the regulation appropriates for the
    enjoyment of third parties the owners’ right to exclude.” Id. at 2072.
    The court deemed the California regulation analogous to an involuntary
    servitude or an easement, both of which rise to the level of takings requiring just
    compensation. Id. at 2073.
    The upshot of this line of precedent is that government-authorized
    invasions of property—whether by plane, boat, cable, or
    beachcomber—are physical takings requiring just compensation. As
    in those cases, the government here has appropriated a right of
    access to the growers’ property, allowing union organizers to
    traverse it at will for three hours a day, 120 days a year.
    Id. at 2074. The Landlords maintain that the ordinances, like the invalid California
    regulation, are analogous to an involuntary occupation of their property by tenants
    whose right to remain was contingent on the payment of rent.
    But there is a critical difference between tenants invited to live on a
    landlord’s property in exchange for rent and union organizers with whom the
    landowners had no contractual relationship and who never had permission to enter
    - 16 -
    No. 82469-4-I/17
    the land in the first place. A tenant’s right to occupy leased property may have
    originated in the contractual relationship between the landlord and the tenant, but
    the tenants’ rights, including the right to occupy, are heavily regulated in
    Washington and protected by state statutes. This is not a situation in which a
    government has unilaterally authorized someone with no connection to the
    property to gain access, but one in which the landlord has voluntarily given a
    temporary right of occupancy through contract and the government has altered its
    regulation of that contractual relationship in favor of the tenants.      The U.S.
    Supreme Court has previously held that “statutes regulating the economic relations
    of landlords and tenants are not per se takings.” F.C.C. v. Florida Power Corp.,
    
    480 U.S. 245
    , 252, 
    107 S. Ct. 1107
    , 
    94 L. Ed. 2d 282
     (1987) (citing Loretto v.
    Teleprompter Manhattan CATV Corp., 
    458 U.S. 419
    , 440, 
    102 S. Ct. 3164
    , 
    73 L. Ed. 2d 868
     (1982)).
    More applicable to the present case is the U.S. Supreme Court’s decision
    in Yee v. City of Escondido, 
    503 U.S. 519
    , 
    112 S. Ct. 1522
    , 
    118 L. Ed. 2d 1
     (1992).
    There, mobile home park owners challenged a California law limiting the reasons
    that a park owner could terminate a mobile home owner's tenancy and a municipal
    ordinance prohibiting an increase in rent without city council approval. 
    Id.
     at 524-
    25. The park owners argued that the rent control provision constituted a per se
    physical taking. Id. at 523-24. The Court rejected this argument, reasoning that a
    physical taking occurs “only where [the government] requires the landowner to
    submit to the physical occupation of his land” and because the laws merely
    regulated petitioners’ use of their land by regulating the relationship between
    - 17 -
    No. 82469-4-I/18
    landlord and tenant, they could not be squared with the Court's physical takings
    cases. Id. at 527-28. This case is more analogous to Yee than to Cedar Point
    Nursery. The Landlords voluntarily invited the tenants to live in their homes and
    the ordinances regulate a landlord-tenant relationship that has already been
    established by the parties.
    The Landlords argue that the reasoning in Yee should not be extended to
    this case because the regulation at issue in that case simply prohibited rent
    increases, whereas here, Seattle’s winter and COVID-19 eviction bans preclude
    them from terminating a tenancy for nonpayment of rent.
    We understand that the reasoning in Yee was premised on the fact that the
    applicable rent control laws did not affect the landlords’ right to exclude anyone
    from their property:
    At least on the face of the regulatory scheme, neither the city nor the
    State compels petitioners, once they have rented their property to
    tenants, to continue doing so. . . . While the “right to exclude” is
    doubtless, as petitioners assert, “one of the most essential sticks in
    the bundle of rights that are commonly characterized as property,”
    we do not find that right to have been taken from petitioners on the
    mere face of the Escondido ordinance.
    Id. at 528-29 (quoting Kaiser Aetna v. United States, 
    444 U.S. 164
    , 176, 
    100 S. Ct. 383
    , 
    62 L. Ed. 2d 332
     (1979)). Similarly, in Margola, our Supreme Court held that
    restricting a landlord’s ability to evict a tenant based on the landlord’s nonpayment
    of a registration fee was not a taking because, as in Yee, the law did not destroy
    the landlord’s right to exclude others from their property. 
    121 Wn.2d at 648
    . It
    specifically quoted the following passage from Yee:
    - 18 -
    No. 82469-4-I/19
    A different case would be presented were the statute, on its face or
    as applied, to compel a landowner over objection to rent his property
    or to refrain in perpetuity from terminating a tenancy.
    
    121 Wn.2d at 648
     (emphasis in original) (quoting Yee, 
    503 U.S. at 528
    ). This
    language in Yee, adopted in Margola, appears to create an exception—if the
    ordinance compelled a landlord to rent to someone over the landlord’s objection,
    or prohibited the landlord from ever terminating the tenancy, a takings claim would
    arise.
    We nevertheless conclude that the ordinances do not fit into the exception
    carved out by Yee and Margola. First, the ordinances do not require a landlord to
    rent property to anyone with whom the landlord has not already voluntarily entered
    into a lease agreement. Second, the ordinances do not prevent a landlord from
    ever terminating a tenancy. The ordinances place timing restrictions on eviction,
    but otherwise do not change a pre-existing landlord-tenant relationship. 13
    Several federal district courts have considered and rejected a takings claim
    in the context of various COVID-related eviction moratoria. In El Papel LLC v.
    Durkan, 
    2021 WL 4272323
     (W.D. Wash. September 15, 2021), a magistrate judge
    addressed a challenge to two of the same ordinances at issue here—the six-month
    eviction ban extension and the payment plan requirement—and concluded the
    ordinances do not amount to a physical taking under Yee. Id. at *15-16. Magistrate
    Judge Creatura reasoned:
    Here, too, the government has not required a physical invasion of
    plaintiffs’ property. Instead, plaintiffs have voluntarily rented their
    13 Employing the same analysis, Division Two of this court recently held that the state COVID-19
    eviction moratorium did not constitute a per se physical taking under Yee. Gonzales v. Inslee,
    No. 55915-3-II, slip op. at *23 (Wash. Ct. App. Feb. 23, 2022)
    https://www.courts.wa.gov/opinions/pdf/D2%2055915-3-II%20Published%20Opinion.pdf.
    - 19 -
    No. 82469-4-I/20
    land to residential tenants and temporarily lost the ability to evict
    tenants in certain situations during the COVID-19 crisis and for six
    months after September 30, 2021. Contrary to plaintiffs’ arguments,
    none of the restrictions are permanent. Plaintiffs retained the ability
    to sue their tenants for unpaid rent due to COVID-19 under the State
    moratorium, except where the resident had not been offered or was
    complying with a repayment plan. The City allows tenants to take
    advantage of a repayment plan, but neither the City nor the State has
    forgiven or cancelled unpaid rent.
    Id. at *16.
    In Elmsford Apt. Assocs., LLC v. Cuomo, residential landlords challenged
    Governor Cuomo’s executive order that temporarily allowed tenants to apply
    security deposits toward rent and temporarily prohibited landlords from initiating
    evictions of tenants facing pandemic-caused financial hardships. 
    469 F. Supp. 3d 148
    , 160 (S.D. N.Y. 2020). The federal district court held that a “temporary halt on
    evictions” does not take on the character of a physical taking. Id. at 163. The
    landlords continued to control their property, continued to rent to tenants and to
    collect rents from them; the order did not reduce the amount the tenants had to
    pay, or forgive any rental obligations. The landlords retained the right to evict
    tenants when the order expired. Thus, it held that a temporary ability to expel
    tenants facing COVID-related financial setbacks did not rise to the level of a
    physical taking. Id. at 164.
    Similarly, in Auracle Homes, LLC v. Lamont, residential landlords sued the
    Governor of Connecticut, alleging that his executive orders limiting evictions and
    rent payments during the pandemic violated the takings clause. 
    478 F. Supp. 3d 199
    , 218 (D. Conn. 2020). A federal district court there followed the reasoning of
    Elmsford and concluded that no physical taking had occurred because the
    landlords had voluntarily rented their premises to the tenants and regulations
    - 20 -
    No. 82469-4-I/21
    affecting the economic relationships between landlords and tenants are not a
    physical invasion. 
    Id. at 220-21
    . Other federal courts addressing COVID-related
    restrictions on eviction have held the same. See Heights Apartments, LLC v. Walz,
    
    510 F. Supp. 3d 789
    , 812 (D. Minn. 2020); Baptiste v. Kennealy, 
    490 F. Supp. 3d 353
    , 388 (D. Mass. 2020).
    Finally, in Jevons v. Inslee, 
    2021 WL 4443084
     (E.D. Wash. 2021), the court
    rejected a taking challenge to Governor Inslee’s COVID-19 eviction moratorium.
    The court held that the moratorium “did not require Plaintiffs to submit to a physical
    occupation or invasion of their land and did not appropriate Plaintiffs’ right to
    exclude.” Id. at *13. “No physical invasion has occurred beyond that agreed to by
    Plaintiffs in renting their properties as residential homes, which is naturally subject
    to regulation by the state.” Id.
    The reasoning contained in these federal cases is persuasive. Neither the
    winter eviction ban nor the COVID-eviction ban extension takes away any control
    over the property from landlords. They may continue to rent their properties and
    to collect rents. The ordinances do not forgive any rent obligations owed by
    tenants or reduce the amount the tenants must pay in arrearages.               And the
    landlords retain the right to evict tenants at the end of the winter or six months after
    the expiration of the COVID civil emergency. We conclude that neither eviction
    ban constitutes a per se physical taking in violation of article 1, section 16 of the
    Washington Constitution.
    C. Procedural Due Process
    The Landlords argue that each ordinance violates their procedural due
    - 21 -
    No. 82469-4-I/22
    process right to a meaningful opportunity to be heard before they are deprived of
    their property rights. We agree as to the six-month eviction ban extension’s self-
    certification provision, but otherwise affirm the trial court.
    Article I, section 3 of the Washington Constitution states: “No person shall
    be deprived of life, liberty, or property, without due process of law.” Our state due
    process protection against the arbitrary exercise of the powers of government has
    both procedural and substantive components. Yim, 194 Wn.2d at 688. “The
    procedural component provides that ‘[w]hen a state seeks to deprive a person of
    a protected interest’, the person must ‘receive notice of the deprivation and an
    opportunity to be heard to guard against erroneous deprivation.’ ” Id. (quoting
    Amunrud v. Bd. of Appeals, 
    158 Wn.2d 208
    , 216, 
    143 P.3d 571
     (2006).                        A
    procedural due process claim has two distinct elements: (1) the deprivation of a
    constitutionally protected liberty or property interest; and (2) a denial of adequate
    procedural protections. Webb v. Washington State University, 15 Wn. App. 2d
    505, 516, 
    475 P.3d 1051
     (2020). 14
    1.      Deprivation of Constitutionally-Protected Property Interests
    To meet their burden, the Landlords must first demonstrate that the
    ordinances constitute a deprivation of a constitutionally-protected property interest.
    Mathews v. Eldridge, 
    424 U.S. 319
    , 332, 
    96 S. Ct. 893
    , 
    47 L. Ed. 2d 18
     (1976);
    Bang Nguyen v. Dep't of Health Med. Quality Assur. Comm'n, 
    144 Wn.2d 516
    ,
    522-23, 
    29 P.3d 689
     (2001).
    14 Article I, section three provides protections coextensive to those contained in the U.S.
    Constitution’s 14th Amendment. State v. Jordan, 
    180 Wn.2d 456
    , 462, 
    325 P.3d 181
     (2014). As
    such, federal cases must be given great weight in construing the state due process provision.
    Petstel, Inc. v. King County, 
    77 Wn.2d 144
    , 153, 
    459 P.2d 937
     (1969).
    - 22 -
    No. 82469-4-I/23
    The Landlords identify the property interests at issue here as:
    (1) timely paid rent money, which right is protected by State law . . .,
    (2) deprivation of the eviction mechanism established by law to assist
    in either enforcing timely paid rent or enforcing a timely return of the
    rental premises to the owner . . . , (3) forcing landlords to suffer
    involuntary physical occupation of an owned real property space,
    and (4) deprivation of State law required interest on a current owed
    debt.
    The U.S. Supreme Court has recognized that property owners have a
    constitutionally protected right to exclude others from their property. Coll. Sav.
    Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 
    527 U.S. 666
    , 673, 
    119 S. Ct. 2219
    , 
    144 L. Ed. 2d 605
     (1999) (“The hallmark of a protected property
    interest is the right to exclude others. That is one of the most essential sticks in the
    bundle of rights that are commonly characterized as property.”) (quoting Kaiser
    Aetna, 
    44 U.S. 164
     at 176). Our court has similarly recognized that the right to
    exclude others from one’s property is a fundamental attribute of property
    ownership. See Holmquist v. King County, 
    192 Wn. App. 551
    , 561-62, 
    388 P.3d 234
     (2016) (“Respecting the paramount right to exclude others, Washington courts
    compensate the loss of exclusive possession under a variety of legal theories.”).
    The U.S. Supreme Court also considers rental income to be a significant
    property interest in the due process context. See U.S. v. James Daniel Good Real
    Prop., 
    510 U.S. 43
    , 54-55, 
    114 S. Ct. 492
    , 
    126 L. Ed. 2d 490
     (1993) (federal
    government required to give landowner notice and hearing before seizing home
    and ordering tenants to remit rent to the U.S. Marshal).
    In the landlord-tenant relationship, both rights are recognized in RCW
    59.12.030(3) and RCW 7.28.250.           These statutes provide that Washington
    - 23 -
    No. 82469-4-I/24
    landlords are entitled to the timely payment of rent and confer on them the right to
    file an action for unlawful detainer and to reenter the property upon a default in
    payment.    We thus conclude the Landlords have established that they have
    constitutionally protected property rights impacted by the ordinances.
    The City contends that even if the Landlords have constitutionally protected
    property rights, the eviction defenses do not “deprive” the Landlords of this
    property because the eviction bans are temporary in nature. But the Landlords’
    property interests are protected under procedural due process even if the
    challenged deprivation is temporary. In Sniadach v. Family Finance Corp. of Bay
    View, 
    395 U.S. 337
    , 338-39, 
    89 S. Ct. 1820
    , 23 L. Ed. 2d. 349 (1969), the Court
    held that a Wisconsin garnishment statute, allowing for prejudgment garnishment
    of wages, violated due process principles even if the deprivation of income was
    temporary because “in the interim the wage earner is deprived of his enjoyment of
    earned wages without any opportunity to be heard and to tender any defense he
    may have.” In a concurring opinion, Justice Harlan clarified that “[t]he ‘property’ of
    which petitioner has been deprived is the use of the garnished portion of her wages
    during the interim period between the garnishment and the culmination of the main
    suit.” 
    Id. at 342
     (J. Harlan, concurring). See also, Fuentes v. Shevin, 
    407 U.S. 67
    ,
    84-85, 
    92 S. Ct. 1983
    , 32 L. Ed. 2d. 556 (1972) (“it is now well settled that a
    temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the
    terms of the Fourteenth Amendment); Olympic Forest Prods., Inc. v. Chaussee
    Corp., 
    82 Wn.2d 418
    , 419, 
    511 P.2d 1002
     (1973) (prejudgment garnishment of
    $30,000 was deprivation of significant property interest).
    - 24 -
    No. 82469-4-I/25
    The winter eviction ban temporarily deprives the Landlords of their right to
    exclude nonpaying tenants and to receive rental income by barring the Landlords
    from removing these tenants and from renting the property to someone who can
    pay. The six-month eviction ban extension similarly deprives the Landlords of
    these same property rights for six months after the expiration of the civil
    emergency. Although the Landlords are only temporarily barred from evicting
    nonpaying tenants, the winter eviction ban and six-month eviction ban extension
    nevertheless effectuate a deprivation of significant property rights.             Even if a
    landlord is eventually able to evict the nonpaying tenant and obtain a judgment for
    unpaid rent, the landlord lost the use of the rental income during the interim
    period. 15
    The City argues that the holdings in Sniadach, Fuentes, and Olympic
    Forest, should be limited to the prejudgment seizure of a defendant’s assets. But,
    in Olympic Forest, the Supreme Court explicitly rejected the argument that the due
    process clause applies to certain types of property and not others:
    [T]he basic due process requirements of notice and a prior hearing
    are not limited to the protection of only certain types of property, for
    if the root principle of procedural due process is to be applied with
    objectivity, it cannot rest on such distinctions. . . . Where any
    ‘significant property interest’ is at stake, the safeguards of procedural
    due process are applicable.
    
    82 Wn.2d at 428
     (quoting Fuentes at 90).
    Moreover, the temporary deprivation of access to one’s real estate in the
    landlord-tenant context is a significant one. The purpose of an unlawful detainer
    15 The Landlords also argue that Ordinance 126081 deprives them of their property interest in
    interest accruing on owed rent. We need not reach the issue because we conclude the ban on the
    accrual of interest is preempted by state law.
    - 25 -
    No. 82469-4-I/26
    action is to provide “an expedited method of resolving the right to possession of
    property.” Christensen v. Ellsworth, 
    162 Wn.2d 365
    , 370-71, 
    173 P.3d 228
     (2007).
    This statute recognizes that a tenant who cannot pay rent may be judgment proof
    and expediting the tenant’s departure allows the landlord to recover possession of
    the property before incurring extensive damages. Without the ability to exercise
    their rights under the RLTA and unlawful detainer statutes, the Landlords face the
    risk of never being able to recover the unpaid rent, even after they are eventually
    able to evict the defaulting tenant. 16
    2.      Adequacy of Procedural Protections
    The Landlords argue that none of the ordinances contain adequate
    safeguards to protect against the wrongful deprivation of their property interests.
    We conclude that the winter eviction ban and the payment plan ordinance provide
    the Landlords with adequate procedural protections to safeguard their identified
    property interests, but the COVID six-month eviction ban extension does not.
    When determining procedural due process rights, we use the balancing test
    of Mathews v. Eldridge:
    [C]ourts must balance three factors to determine the process due in
    a particular situation: (1) the private interest that will be affected by
    the governmental action, (2) the risk of erroneous deprivation and
    the probable value of requiring additional procedural safeguards, and
    (3) the government's interest, including the fiscal and administrative
    burdens that additional procedural safeguards would entail.
    16 In Auracle Homes, the federal district court rejected the landlords’ procedural due process
    challenge to the Connecticut eviction moratorium because of Second Circuit precedent precluding
    a party from pursuing a due process claim if the property interest at issue is arguably protected by
    the takings clause. 478 F. Supp. 3d at 227. In Washington, however, courts recognize no such
    rule and permit the simultaneous prosecution of due process and takings claims. See Guimont v.
    City of Seattle, 
    77 Wn. App. 74
    , 80, 
    896 P.2d 70
     (1995).
    - 26 -
    No. 82469-4-I/27
    City of Redmond v. Moore, 
    151 Wn.2d 664
    , 681, 
    91 P.3d 875
     (2004) (citing
    Mathews, 
    424 U.S. at 335
    ).
    The private interests implicated by each ordinance are the deprivation of
    rental income.     In James Daniel Good Real Property, the Supreme Court
    concluded that a loss of $900 in rent per month due to government seizure of
    claimant Good’s residential property “represents a significant portion of the
    exploitable economic value of Good’s home” and therefore “the private interests at
    stake in the seizure of real property weigh heavily in the Mathews balance.” 
    510 U.S. 43
    , 54-55.      The government interest is allowing tenants to avoid
    homelessness during the winter or during an unprecedented event, when the
    health risks of being unsheltered are extremely high.          Both interests are
    compelling.
    The question here is whether the procedures set out in the ordinances are
    adequate to minimize the risk that landlords will lose rental income unnecessarily
    and whether providing additional safeguards to avoid such risks would impair the
    government’s interest in reducing homelessness.
    “The fundamental requirement of due process is the opportunity to be heard
    ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 
    424 U.S. at 333
    (quoting Armstrong v. Manzo, 
    380 U.S. 545
    , 552 
    85 S. Ct. 1187
    , 
    14 L. Ed. 2d 62
    (1965)). Absent “extraordinary circumstances,” “[t]he right to prior notice and a
    hearing is central to the Constitution's command of due process.” James Daniel
    Good Real Property, 
    510 U.S. at 53
    . Procedural due process “[a]t its core is a right
    - 27 -
    No. 82469-4-I/28
    to be meaningfully heard, but its minimum requirements depend on what is fair in
    a particular context.” In re Det. of Stout, 
    159 Wn.2d 357
    , 370, 
    150 P.3d 86
     (2007).
    The ordinances create defenses to an action for unlawful detainer.          A
    landlord may not evict anyone without a court order. RCW 59.18.290(1). To obtain
    a court order, the landlord must file a complaint for unlawful detainer and request
    a hearing. RCW 59.18.370. At the hearing, the tenant may assert any defense
    arising out of the tenancy. RCW 59.18.380. The two eviction ban ordinances set
    out different conditions that the tenant must meet before a court can delay the
    eviction. Because the fairness of any set of procedures is contextual in nature, we
    evaluate each of the ordinances separately.
    a.     Winter Eviction Ban
    To prevail on a winter eviction ban defense, a tenant must prove that (1) the
    eviction would require the tenant to vacate between December 1 and March 1, (2)
    the tenant household is “a moderate-income household as defined in [SMC]
    23.84A.016,” and (3) the tenants live in housing units “owned by a person who
    owns more than four rental housing units” within Seattle. SMC 22.205.080(A)-(C).
    Any tenant seeking to avoid eviction between December 1 and March 1 must make
    this factual showing at or before the show cause hearing.
    The Landlords contend that the winter eviction ban creates an unreasonable
    risk of an erroneous deprivation of their property rights because it does not require
    the tenant to prove the existence of a financial hardship or a risk of homelessness.
    But the tenant must establish their household income fails to meet a designated
    threshold, a proxy for financial hardship. SMC 23.84A.016 defines “Household,
    - 28 -
    No. 82469-4-I/29
    moderate-income” as “a household whose income does not exceed median
    income.” SMC 84A.025 defines "median income" as
    annual median family income for the Seattle area, as published
    from time to time by the U.S. Department of Housing and Urban
    Development (HUD), with adjustments according to household size
    in a manner determined by the Director, which adjustments shall be
    based upon a method used by the United States Department of
    Housing and Urban Development to adjust income limits for
    subsidized housing, and which adjustments for purposes of
    determining affordability of rents or sale prices shall be based on
    the average size of household considered to correspond to the size
    of the housing unit (one (1) person for studio units and one and a
    half (1.5) persons per bedroom for other units).
    HUD sets income limits that determine eligibility for assisted housing programs and
    develops income limits for each metropolitan area, parts of some metropolitan
    areas, and each non-metropolitan county. 17 The Landlords presented evidence
    below that the annual median family income for Seattle in 2019 was $108,600.
    According to its website, HUD has set the 2021 income level at $115,700. 18
    The Landlords argue that it is unfair to permit someone earning $115,700
    to remain rent free in their apartments or homes for three months if these
    individuals cannot prove that they in fact face homelessness. But the City offered
    evidence of a connection between eviction and the risk of homelessness, citing the
    “Losing Home” report, published by the Seattle Women’s Commission and King
    County Bar Association’s Housing Justice Project in 2018. 19 The report found that
    17      Income Limits, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
    https://www.huduser.gov/portal/datasets/il.html#2021_query.
    18 Fiscal Year 2022 Income Limits Documentation System, U.S. DEPARTMENT OF HOUSING AND
    URBAN DEVELOPMENT, https://www.huduser.gov/portal/datasets/il/il2021/2021MedCalc.odn (medial
    income calculation), https://www.huduser.gov/portal/datasets/il/il12/HUD_sec8_12.pdf (family size
    uses four as a base).
    19 Seattle Women’s Comm’n & King Cty. Bar Ass’n Housing Justice Project, LOSING HOME: THE
    HUMAN COST OF EVICTION IN SEATTLE, at 3 (2018)
    - 29 -
    No. 82469-4-I/30
    37.5 percent of people evicted in King County became unsheltered, another 25
    percent live in a shelter or transitional housing, and another 25 percent ended up
    staying with family or friends. Only 12.5 percent of evicted respondents found
    another apartment or home. The City Council cited these statistics as a part of its
    legislative findings supporting the winter eviction ban. Given these statistics, it is
    highly unlikely that a significant number of individuals facing eviction in the winter
    months actually earn a six-figure income.
    The Landlords argue that requiring tenants to demonstrate a financial
    hardship or an increased risk of homelessness as a precondition to invoking the
    winter eviction ban defense would protect the Landlords’ right to evict a defaulting
    tenant who is not at risk of becoming homeless. But this policy argument would
    require us to make a substantive change in the law, rather than to add more
    procedural protections.
    In Fields v. Department of Early Learning, 
    193 Wn.2d 36
    , 43-45, 
    434 P.3d 999
     (2019), four justices of the Supreme Court held that an employee of a licensed
    daycare facility had a procedural due process right to challenge a permanent
    administrative disqualification from providing licensed child care based on a 30-
    year-old robbery conviction. But five justices disagreed that the Department of
    Early Learning disqualification rule violated the employee’s procedural due
    process rights, with Justice Gordon McCloud concurring in the lead opinion’s result
    but doing so on substantive due process grounds. See Id. at 52-53 (McCloud, J.,
    concurring); Id. at 58 (Fairhurst, J., dissenting) (procedural due process
    http://www.seattle.gov/Documents/Departments/SeattleWomensCommission/LosingHome_9-18-
    18.pdf (hereafter “LOSING HOME”).
    - 30 -
    No. 82469-4-I/31
    guarantees only that individuals have notice and the opportunity to contest whether
    the rule applies to them, not whether it should do so). The Landlords’ argument
    here is more akin to a substantive, rather than procedural, due process claim. Yet,
    the Landlords raise only procedural due process in their briefs.
    The minimum procedural due process requirements are:
    (1) timely and adequate notice of hearing on the probable validity of
    the . . . claim which states the basis for the claim and allows the
    [responding party] adequate time to prepare for the hearing; (2) an
    independent and impartial decision maker; (3) the right to appear
    personally at the hearing, with or without retained counsel; (4) the
    right at the hearing to confront and cross-examine any adverse
    witness and to present evidence and oral argument in support of his
    claim or defense; (5) the right to a decision based on applicable legal
    rules and evidence adduced at the hearing.
    Rogowski v. Hammond, 
    9 Wn. App. 500
    , 506, 
    513 P.2d 285
     (1973).
    Under SMC 22.205.080(E)(2) and the unlawful detainer statute, the
    Landlords have the right to a hearing to challenge the factual veracity of the
    tenant’s claimed income level. Nothing prevents the landlord from claiming that a
    tenant has the ability to pay rent and has simply chosen not to do so. The winter
    eviction ban ordinance satisfies the requirements of procedural due process.
    Moreover, the risk of erroneous deprivation is low given that, even where
    the court deems the defense applicable, the deprivation of rental income and the
    landlord’s ability to evict defaulting tenants is temporary, lasting no more than three
    months, after which the landlord may proceed with eviction and seek recovery of
    unpaid rent. The winter eviction ban does not violate procedural due process.
    b.     Six-Month COVID Eviction Ban Extension
    The Landlords argue that even if the winter eviction defense includes
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    No. 82469-4-I/32
    sufficient procedural safeguards to satisfy due process, the six-month eviction ban
    extension does not. We agree.
    SMC 22.205.090(B) allows any tenant, regardless of employment status or
    income level, to invoke the six-month eviction ban extension by simply submitting
    a “self-certification” asserting that the tenant has suffered a financial hardship and
    is unable to pay rent. While SMC 22.205.100, the current COVID-19 eviction ban,
    requires the tenant to actually prove the existence of a financial hardship, SMC
    22.205.090 eliminated that proof requirement. The self-certification provision does
    not allow a landlord to challenge the veracity of the tenant’s certification. Once a
    tenant submits a declaration of financial hardship, there appears to be no basis on
    which the landlord may challenge it.
    The U.S. Supreme Court recently ruled that a similar New York law violates
    due process. Chrysafis v. Marks, No. 21A8, 594 U.S. __, 
    2021 WL 3560766
     (Aug.
    12, 2021). The New York law at issue in Chrysafis offered more procedural
    protections than the six month eviction extension does in that it required a tenant
    to submit a “self-certification” of financial hardship under penalty of perjury. Id. at
    *1. The court held that “[t]his scheme violates the Court's longstanding teaching
    that ordinarily ‘no man can be a judge in his own case’ consistent with the Due
    Process Clause” and indicated that due process would not be satisfied without a
    hearing to allow the landlord to challenge the claim of financial hardship. Id.
    (quoting In re Murchson, 
    349 U.S. 133
    , 136, 
    75 S. Ct. 623
    , 
    99 L. Ed. 942
     (1955)).
    We reach the same conclusion here; under basic due process law, the Landlords
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    No. 82469-4-I/33
    must have an opportunity to challenge the veracity of the tenant’s self-certification
    or declaration of financial hardship.
    The City has advanced no argument for why such an additional procedural
    protection would be unduly burdensome. SMC 22.205.100, which provided a
    defense to evictions during the civil emergency, applies only where “the tenant has
    suffered a financial hardship during the civil emergency” and thus requires the
    tenant to prove a financial hardship, presumably with evidence the landlord has
    the opportunity to challenge. By removing this evidentiary requirement from SMC
    22.205.090, the City Council has eliminated the Landlords’ ability to meaningfully
    contest the tenant’s assertion of financial hardship.
    The inability to challenge the tenant’s self-certification creates the
    unnecessary risk that a court will grant a reprieve from eviction to a tenant who
    does not financially need it. The City has failed to demonstrate how the addition
    of procedural protections that would safeguard against such an erroneous
    deprivation would cause an undue burden and outweighs the benefits the
    protections offer.   The six month eviction ban extension thus violates the
    Landlords’ right to procedural due process.
    c.     Payment Plan Ordinance
    The Landlords argue that the payment plan requirement is defective
    because it requires no showing of a heightened risk of homelessness on the part
    of the tenant. But again, the Landlords are confusing procedural protections with
    substantive ones. The payment plan defense is not based on a self-certification
    by the tenant. The ordinance requires a court to determine whether, in fact, the
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    No. 82469-4-I/34
    tenant proffered and the landlord refused to accept a tenant’s installment payment
    under the ordinance’s mandated schedule. The landlord is free to appear at the
    show cause hearing and argue that they did in fact accept the payment, or show
    that the tenant failed to tender the required installment payment. The law does not
    deprive the Landlords of the minimum procedural protections afforded under
    Rogowski. This procedure satisfies due process requirements.
    D. Privileges and Immunities
    Finally, the Landlords argue that the ordinances violate Washington’s
    privileges and immunities clause by favoring the rights of Seattle tenants over
    those of Seattle landlords. We reject this argument because the ordinances do
    not implicate fundamental rights under the privileges and immunities clause.
    Article I, section 12 of the Washington Constitution provides that “[n]o law
    shall be passed granting to any citizen, class of citizens, or corporation other than
    municipal, privileges or immunities which upon the same terms shall not equally
    belong to all citizens, or corporations.”
    Washington courts employ a two-part test to decide if legislation violates
    article I, section 12, asking first whether the challenged law grants a “privilege” or
    “immunity” for purposes of the state constitution, and, if it does, then asking if there
    is a reasonable ground for granting the privilege or immunity.           Schroeder v.
    Weighall, 
    179 Wn.2d 566
    , 572-73, 
    316 P.3d 482
     (2014) (citations omitted).
    “Not every benefit constitutes a ‘privilege’ or ‘immunity’ for purposes of the
    independent article I, section 12 analysis. Rather, the benefits triggering that
    analysis are only those implicating “ ‘fundamental rights . . . of . . . state . . .
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    No. 82469-4-I/35
    citizenship.’ ” Id. at 573 (quoting State v. Vance, 
    29 Wash. 435
    , 458, 
    70 P. 34
    (1902)). In Schroeder, the Supreme Court recognized that “where a cause of
    action derives from the common law, the ability to pursue it is a privilege of state
    citizenship triggering article I, section 12's reasonable ground analysis. A law
    limiting the pursuit of common law claims against certain defendants therefore
    grants those defendants an article I, section 12 ‘immunity.’ ” 
    Id.
     However, rights
    left to the discretion of the legislature are not generally considered fundamental.
    Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 
    196 Wn.2d 506
    , 519, 
    475 P.3d 164
    (2020).
    The Landlords reference a few rights they claim to be fundamental in the
    privileges and immunities context: the right to pursue a claim in court, the right to
    conduct rental business, the right to hold and enjoy one’s own property, and the
    right to collect debts. But the process for eviction, and the respective rights of
    tenants and landlords, have been left to the discretion of the legislature. Under
    these circumstances, we doubt that the ordinances implicate privileges and
    immunities concerns.
    “An unlawful detainer action is a statutorily created proceeding that provides
    an expedited method of resolving the right to possession of property.”
    Christensen, 
    162 Wn.2d at 370-71
    .        The definition of unlawful detainer, the
    procedural requirements to initiate such an action, and even the petitioner’s burden
    at trial are specifically set out in chapter 59.12 RCW. The RLTA goes even further
    and lays out the respective duties and rights of tenants and landlords, and their
    available remedies. The ordinances do not prevent the Landlords from pursuing
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    No. 82469-4-I/36
    an unlawful detainer or common law action against a defaulting tenant, nor do they
    prevent the Landlords from acquiring or holding property; they regulate the use of
    property which the Landlords voluntarily chose to subject to residential leases
    under the above acts. What the Landlords actually seek is the ability to quickly
    evict a tenant following the tenant’s default, notwithstanding seasonal or
    pandemic-related considerations. They cite no authority for the proposition that
    they have a fundamental right under article I, section 12.
    But even if the ordinances did implicate a fundamental right, the City has
    adequately shown there is a reasonable ground for granting the privilege or
    immunity. Under the reasonable grounds test, a court will not hypothesize facts to
    justify a legislative distinction. Schroeder, 
    179 Wn.2d at
    574 (citing City of Seattle
    v. Rogers, 
    6 Wn.2d 31
    , 37-38, 
    106 P.2d 598
     (1940)). Rather, the court will
    scrutinize the legislative distinction to determine whether it in fact serves the
    legislature's stated goal. 
    Id.
     The ordinances must be justified in fact and theory.
    Martinez-Cuevas, 196 Wn.2d at 523.
    We conclude that the ordinances serve their stated goals and thus meet the
    reasonable ground standard. The purpose of the winter ban is to “reduc[e] the
    number of individuals and families entering into homelessness during the
    wintertime.” Ordinance 126041 at 2. The “Losing Home” report indicates that a
    substantial proportion of evicted tenants become homeless. LOSING HOME at 3.
    The City Council noted that in 2018, the King County Medical Examiner’s Office
    investigated the deaths of 194 individuals presumed to be homeless. It also noted
    that people experiencing homelessness have a much higher risk than the general
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    No. 82469-4-I/37
    population of developing exposure-related conditions. By prohibiting evictions
    during winter months, the City Council seeks to lower the number of people who
    die of or sustain physical injuries associated with being exposed to winter weather.
    The winter eviction ban reasonably meets the ordinance’s goal of preventing
    homelessness at a time when living unsheltered would cause the most physical
    harm.
    The purpose of the six-month eviction ban extension is to reduce the
    economic impacts and risk of homelessness among tenants in the immediate
    aftermath of the COVID-19 pandemic. Ordinance 126075 at 1-2. The repayment
    plan requirement shares the same goals. Ordinance 126081 at 1-2. These goals
    are also met by providing a defense to eviction and reducing the burden of rental
    payments on Seattle tenants.
    The Landlords argue that the ordinances lack reasonable grounds because
    they are over-inclusive and are not limited to low-income renters at most risk of
    homelessness. But the reasonable grounds test includes no such narrow-tailoring
    requirement. They merely need to further the legislative body’s stated goals. Each
    ordinance meets this requirement and thus survives the reasonable grounds test.
    CONCLUSION
    We hold that Ordinance 126081’s prohibition on the accrual of interest on
    unpaid rent is preempted under state law and is therefore invalid. We further hold
    that the defense to eviction contained in SMC 22.205.090 (Ordinance 126075)
    deprives the landlords of their property interest without due process by not
    affording them the opportunity to test the veracity of a tenant’s self-certification of
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    No. 82469-4-I/38
    financial hardship. We invalidate it on that ground only. We otherwise uphold the
    ordinances and affirm the judgment for the City.
    WE CONCUR:
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