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11 We’re aware of only one case in which a statutory right of first refusal was declared unconstitutional. In Manufactured Housing Communities of Washington v. State, 13 P.3d 183 (Wash. 2000), the Court declared the state ROFR law affecting manufactured home parks to violate the state constitution takings clause. That clause, unlike either the U.S. or the Minnesota Constitution, prohibits private property from being taken for a private use. Washington Courts treat the provision very literally, so that taking private property and conveying it to another private party for a public purpose is viewed as violating the Washington Constitutional provision,28 even though such transfers are routinely upheld under the U.S. Constitution.29 Further, the Court held that the property taken was the owner’s right to grant a first refusal right.30 The U.S. Supreme Court has rejected this approach, holding that a takings analysis had to be applied to the whole of a property owners interest, not small pieces of it.31 The Massachusetts Supreme Court upheld a ROFR law against a takings challenge in Greenfield Country Estates Tenants Assoc., Inc. v. Deep, 666 N.E.2d 988 (Mass. 1996), representing the likely outcome outside of Washington State. If ROFR laws withstand federal and state constitutional challenges, then it is hard to see how OTP and Notice laws could constitute takings at all. Additional Policies to Promote Preservation Sales Three other ideas to encourage preservation acquisitions have been discussed and would be useful. First, it can be really useful for the city to develop a relationship with its NOAH owners; city staff do not want to be the last to know when major changes happen to NOAH buildings. The City of St. Paul, for example, is currently working on developing a NOAH inventory. Second, The City of St. Louis Park sponsored discussions on how to more effectively market preservation buyers to NOAH owners. The notion being explored is that an appeal could be made to owners nearing retirement to create a legacy for future residents by transferring their inventories to preservation buyers, akin to the Minnesota Public radio legacy idea. Several preservation buyers are working on such a campaign, with the idea being that cities could help promote the campaign with their NOAH owners. Finally, discussions have occurred around creating tax incentives to encourage preservation sales. For example, CommonBond has negotiated sales at a reduced purchase price, in which the owner takes a lower price in the form of a charitable deduction. Is there a way to encourage more of these “win/win” outcomes? This would probably require changes in state or federal tax law, however. CREATING INCENTIVES FOR NOAH OWNERS TO KEEP THEIR BUILDINGS AFFORDABLE 28 13 P.3d at 190. 29 See, for instance, Kelo v. City of New London, 545 U.S. 469 (2005) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). 30 13 P.3d at 193. 31 Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 319 (2002).