In Washington state, the government may take private property by eminent domain only if the property is “necessary” to accomplish a public use.
But when is property “necessary” to accomplish a public use?
Apparently, whenever the government makes “damn sure” to target it.
The Institute for Justice Washington Chapter is working to change that.
In June 2005, the City of Burien filed condemnation proceedings to take property owned by Strobel Family Investments, a trust comprised of seven sisters who inherited the property when their parents passed away. For the past quarter-century, the Strobel Family has leased the property to Meal Makers, a popular diner-style, family restaurant. By all counts, Meal Makers is just the type of establishment a City should want to preserve—a popular gathering place for locals, especially seniors, who have known it as a part of their community for decades.
So why is the City condemning the property? Because the restaurant building does not fit the City’s “vision” for the fancier, trendier “Town Square” development it has planned for the area. Simply put, the City thinks upscale is better than hometown.
Of course, condemning a popular local restaurant only to replace it with a fancier private business would prove unseemly and spark a political backlash within the community. So the City decided to get crafty. To avoid political and legal wrangling, it claimed the Strobel Family’s property for a road—an ostensible “public use” for which eminent domain is authorized.
Under Washington law, however, a condemnation does not pass muster simply because the condemnor asserts a public use; rather, the property being condemned must be necessary for the public use.
Just how “necessary” is the Strobel Family’s property for the City’s road?
Not at all.
In fact, it is so un-necessary that the City’s original “preferred” concept for Town Square did not even include the road that is now slated to run through the Strobels’ property. It was added later, at the insistence of the City’s private developer. To get rid of the restaurant building, the City Manager commanded his staff to “make damn sure” the road went through it. City staff complied, developing a site plan that placed the road on the Strobel Family’s property. When a subsequent survey revealed that the road would impact only a small corner of the property and not the restaurant building itself, the City developed yet another site plan, placing the road right through the building.
During the subsequent legal proceedings, a Washington trial court offered this frank assessment of the City’s attitude: “[Y]ou won’t sell and you don’t fit our vision, so we’re going to put a street right through your property and condemn it.” Nevertheless, and despite its opinion that the City’s conduct may have been “oppressive” and an “abuse of power,” the court held that, under Washington law, the Strobel Family’s property was indeed “necessary” for the road. The Court of Appeals affirmed.
Enter the Institute for Justice Washington Chapter (IJ-WA), which, on August 21, 2006, joined the Strobel Family and attorney Eric Stahlfeld in asking the Washington Supreme Court to review the lower courts’ holding. IJ-WA is asking the Court to make clear that government may not deliberately target private property for condemnation simply because the property does not fit the government’s “vision.” Property does not become “necessary,” IJ-WA argues, simply because government makes “damn sure” to target it.
The Strobel Family and Its Property
A quarter-century ago, Bob Strobel and his business partner decided to part ways. The two had started out selling real estate but, over time, acquired a few properties of their own. When they decided to split, they flipped a coin to determine who would get which of their assets. Bob got a property in downtown Burien, which they had been leasing to a small diner-style, family restaurant called Meal Makers. When Bob and his wife passed away in 1998, they left the property to their seven daughters—Robin, Carol, Sally, Betty, Susan, Janet, and Julia—who have managed it as Strobel Family Investments ever since.
To this date, the Strobel Family has loyally maintained its lease with Meal Makers, which continues to dish up local favorites like pot roast and peach pie. It has become a fixture in the community—a gathering place for locals, especially seniors, who view it as a sort of home away from home.
After a quarter-century, however, the City of Burien has a new “vision” in store for the Strobel Family’s property—one that has City bulldozers lined up to level it. The Meal Makers building has the distinct misfortune of being located in an area that the City is bent on developing into a fancy new “Town Square” project, featuring upscale condominiums, townhouses, stores, restaurants and offices. In short, the City is ready to throw out the Strobels in hopes of increasing its tax base and “usher[ing] in . . . a nightlife.”
The City Makes “Damn Sure” a Road Goes Through the Strobel Family’s Property
The development project that threatens the Strobel Family’s property dates back to 1997, when the City adopted a “goal” of developing a “town square.” The City later formed a steering group, which produced a “Preferred Conceptual Alternative” in December 2002. Although the area covered by the preferred alternative included the Strobel Family’s property, it did not specifically indicate what was to become of the property.
The City subsequently hired Los Angeles-based Urban Partners, LLC, as its developer. In April 2004, Urban Partners presented its “Development Concept”—its vision for the Town Square project—to the City. The Development Concept departed from the City’s preferred alternative in several respects. Among other things, it called for: (1) a mixed residential/retail building on or near the Strobel Family’s property; and (2) a street grid system within the Town Square site. Specifically, it proposed inserting SW 151st Street, to run east-west through the square, and 5th Avenue SW, to run north-south. Although there was no formal survey completed at this point, the “loop” intersection of the proposed streets appeared to be near, but not necessarily on, the Strobel Family’s property.
Around this time, the City asked Urban Partners to approach the Strobel Family about selling its property. The Strobel Family preferred to keep the property, however, and, to that end, tried to work cooperatively with the City, offering to remodel it so the density and design would be compatible with the rest of Town Square.
But the City and Urban Partners wanted the property. In that light, during a September 2004 meeting, City Manager Gary Long instructed his staff to site SW 151st Street directly through the restaurant building. As Larry Fetter, the City’s former director of parks and recreation, recounted, Long “was very insistent about the placement of 151st,” and instructed his staff to ensure it went “through the building.” To be precise, Long directed them “to make damn sure it goes through Meal Makers.”
A few weeks later, the City Council adopted a site plan for the Town Square project. Pursuant to Long’s demand, it appeared to place the “loop” intersection of SW 151st Street and 5th Avenue SW in the vicinity of the Strobel Family’s property. A subsequent survey, however, revealed that the road layout would, at most, impact only a very small corner of the property. Contrary to Long’s instruction, SW 151st Street would not go through—or even touch—the restaurant building itself.
In light of this revelation, the City decided that the curvature of the planned “loop” intersection did not have a large enough turning radius. The director of public works began working with Urban Partners’ architect to develop new street layouts, with the guidance that “we should establish the alignment of the [right of way] on the Strobel property so that this information can be available for discussions with the Strobels.”
Although the director and architect had multiple options for street layout—including at least one that would have avoided the Strobel Family’s property entirely—they presented only one option to the City Council. Consistent with the director’s instruction to “establish the alignment of the [right of way] on the Strobel property,” and with Long’s instruction to make “damn sure” SW 151st goes through the restaurant building, the lone option presented was the one with the greatest impact on the property: a layout placing SW 151st Street directly through Meal Makers.
The City Council adopted this revised site plan in January 2005 and, that February, passed an ordinance authorizing the City Attorney “to commence condemnation proceedings” against the Strobel Family’s property. According to the ordinance, the property was “necessary” for “municipal street improvement, municipal parking, and municipal parks purposes.” But despite the ordinance’s suggestion that all of the property was necessary, the City later conceded that there would be some property left over and that it has “not made a final determination of what’s going to happen with” that property. The City even conceded that it might be used “for future private development.”
In this light, the Strobel Family had its own architect develop an alternative site plan that would preserve the Meal Makers building while still achieving the City’s objectives for the Town Square project. The family presented this plan to the City and Urban Partners for their consideration. Urban Partners responded, quite bluntly, that “the blocks that we contemplate acquiring . . . do not accommodate the scale and configuration of the existing Meal Makers building,” and insisted that “we can simply not do [the] project if it has to include [the] Meal Makers building.”
Accordingly, in June 2005, the City filed a condemnation action in King County Superior Court.
Trial Court Reluctantly Rules for City; Court of Appeals Affirms
On August 5, 2005, the King County Superior Court held a hearing to adjudicate the legality of the City’s condemnation. Specifically, the hearing was to determine whether condemnation of the Strobels’ property was for a “public use” and whether the property was “necessary” for that public use. Both are prerequisites to condemnation under Washington law.
In an oral ruling, the trial court spent a considerable amount of time discussing the alleged “necessity” of the Strobel Family’s property to the City’s purported public use. The court made clear that the property was not in any reasonable sense “necessary” for the City’s use. In fact, it explained that “the alignment of Southwest 151st could have been easily accomplished without [a]ffecting the Meal Makers restaurant or the Strobel property.”
More importantly, the court dispelled any doubt about the real motive behind the condemnation: elimination of a property the City thinks is not upscale enough for Town Square. As the court explained, “I get the feeling . . . that the city and Urban Partners . . . just feel that Meal Makers is inconsistent with their vision of what should happen there. I think they feel it would be akin to having a Denny’s restaurant next to the capitol building in Olympia.” The court offered this very candid assessment of the City’s conduct: “So this decision, it can be summarized as follows, you won’t sell and you don’t fit our vision, so we’re going to put a street right through your property and condemn it.”
In short, the court did not believe condemnation of the Strobel Family’s property was “necessary” in any normal sense of the word. Under Washington law, however, “necessary” does not have a normal meaning—it means anything the government or a private developer wants. As the court explained, Washington law gives government necessity determinations virtually absolute deference: they are “deemed conclusive . . . unless there’s proof of actual fraud or such arbitrary and capricious conduct that
. . . would amount to fraud.” The court concluded that the condemnation was neither fraudulent nor arbitrary and capricious; to the contrary, it was “well thought out.” Consequently, it upheld the condemnation.
On June 12, 2006, the Court of Appeals affirmed but, in a remarkable departure from the trial court, insisted there were “[n]o improper considerations” on the City’s part. In fact, the Court of Appeals did not even acknowledge the instruction from the city manager to make “damn sure” SW 151st Street went through Meal Makers or the instruction from the director of public works to ensure that the right of way is “align[ed] . . . on the Strobel property.” As for the fact that the City had not even committed to using the entire property for its purported public use, the Court of Appeals simply quoted the Washington Supreme Court’s recent statement that nothing “requires a condemning authority to have a public use planned for the property forever.” The court ignored the fact that the City does not even have a near-term public use planned for a large portion of the property.
Petitioning the Washington Supreme Court
On August 21, 2006, the Institute for Justice Washington Chapter (IJ-WA) officially joined the Strobel Family as its attorney and, along with Eric Stahlfeld, who represented the Strobels from the beginning, asked the Washington Supreme Court to review the lower courts’ holding. The Institute for Justice is the nation’s leading law firm opposing eminent domain abuse. It has successfully defended home and small business owners across the nation against unlawful land-grabs by tax-hungry local governments and land-hungry developers. In 2005, the Institute for Justice argued the Kelo v. City of New London eminent domain case before the U.S. Supreme Court, and continues the fight to roll back that decision in courts and state legislatures nationwide. In July 2006, in an eminent domain abuse case argued by the Institute for Justice, the Ohio Supreme Court unanimously ruled that the Ohio Constitution provides significantly more protections for that state’s citizens than the U.S. Supreme Court found under the U.S. Constitution. This was the first eminent domain case to be heard and decided by a state supreme court after the Kelo decision was handed down.
Defending the Strobel Family is part of the Institute for Justice’s commitment to strategic litigation that will help restore judicial protection for private property rights. The U.S. and every state constitution explicitly recognize the importance of protecting property rights, which are the foundation of all our rights. Indeed, for most Americans, ownership of a home or business is the cornerstone of their efforts to provide for their families and realize their dreams.
The Institute will challenge Burien’s condemnation of the Strobel Family’s property on the ground that the property is in no way necessary for the City’s purported public use. Such “necessity” is a requirement under Washington law, designed to enforce the state constitution’s prohibition on private takings. The Institute will further challenge the condemnation on the ground that the City has not even identified a public use for a large portion of the property it seeks to condemn.
Eminent Domain: An Overview
Eminent domain is the power of government to take away homes, farms, businesses, churches and other private properties. It has been called the “despotic” power, and in colonial times when English law prevailed, there were no limits on the monarch’s power to seize property.
Recognizing its potential for abuse, James Madison wrote an important constraint on eminent domain into the Fifth Amendment to the U.S. Constitution, which provides that private property shall not be “taken for public use, without just compensation.” This language constrains eminent domain in two ways. First, the government can only take property for a genuine public use. Second, if the government takes property for a public use, it must pay just compensation.
Most state constitutions, including Washington’s, contain language similar to Madison’s. In fact, Washington’s constitutional framers went even further than the U.S. Constitution, expressly stating in article I, section 16 that “[p]rivate property shall not be taken for private use.” Moreover, to enforce the constitutional ban on takings for private use, the Washington Supreme Court has adopted certain corollaries to the public use requirement. Specifically, the Court requires a would-be condemnor to demonstrate that the proposed public use is required by the public interest and that the property proposed for condemnation is necessary for the public use. Thus, “[f]or a proposed condemnation to meet the requirement of article 1, section 16 the court must make three separate but interrelated findings: (1) the use must be public; (2) the public interest must require it; and (3) the property appropriated is necessary for the purpose.”
These limitations on the eminent domain power are critical to protecting against an abusive and overreaching government. For example, the “public use” limitation prevents government from taking someone’s home or business simply to give it to someone else with more political influence for his or her own private use. The corollary limiting condemnation to property that is “necessary” for the public use performs a separate, but no less important, function: It prevents government from simply asserting a fig leaf of public use to justify the taking of property that is in no way necessary to achieve a public use.
Unfortunately, these traditional and principled constraints on eminent domain have been increasingly dismantled over time. Most notably, the U.S. Constitution’s public use requirement was all but thrown out the window by the U.S. Supreme Court’s dreadful decision in Kelo v. City of New London. There, the Court upheld the condemnation of middle-class homes not for a true public use, such as a post office, but rather for a hotel, upscale condos and office buildings. By the Court’s twisted logic, the mere possibility that such private uses would generate more jobs and higher tax revenues was itself a public use.
And while the Washington Constitution provides protections beyond those in the U.S. Constitution, the Washington Supreme Court has steadily whittled them away as well. For example, at one time, the court would closely scrutinize a government determination that property is “necessary” for a public use, reviewing the determination for “bad faith,” “oppression,” or “abuse of . . . power.” Over time, however, the court limited its review to a single factor that essentially cannot be proved: “fraud.” As a result, today’s property owner must overcome the virtually insurmountable obstacle of proving the government lied in making the necessity determination in order to have much hope of keeping her property.
In a similar erosion of property rights protections, the Washington Supreme Court recently gave the green light to excessive condemnations. In HTK Management, LLC v. Seattle Popular Monorail Authority, the Court authorized condemnation of significantly more land than necessary for a Monorail station despite evidence that the Monorail Authority planned to sell off the land at a premium once construction of the station was complete. The court essentially held that government may take all your property to engage in real estate speculation so long as some portion of the property is devoted to a public use.
The Strobel Family’s case is a prime opportunity for the Washington Supreme Court to halt this erosion of property rights protections in Washington and to begin the arduous but critical task of restoring private property to its rightful place.
The Strobel Family’s Fight for Property Rights Protections
Simply put, the Strobel Family’s case asks whether Washington’s “necessity” requirement means anything at all. The trial court was quite clear that the family’s property was not “necessary” under any reasonable understanding of that term. As the court recognized, Burien deliberately targeted the property, making “damn sure” a road went through it, because its current use as a diner-style, family restaurant did not fit Burien’s “vision” for the upscale Town Square project. Nevertheless, the court felt powerless to do anything to stop the City’s mischief because of the exceedingly deferential nature of Washington’s case law on the necessity question. The case thus illustrates the problem that results when courts give reflexive deference to government decisions.
The Strobel Family will urge the Washington Supreme Court to restore a more genuine review of government necessity determinations, applying a standard that prevents condemnations motivated by the sheer desire to eliminate a home or small business. Under current law, the courts will step in to prevent condemnations only when the property owner can prove that the government engaged in fraud—a virtually insurmountable standard. Consequently, condemnations like that which occurred here get the green light.
Adopting genuine review of necessity determinations will merely require the Court to acknowledge and apply precedent that is already on the books. At one time in its history, the Washington Supreme Court reviewed necessity determinations for evidence of “bad faith,” “oppression” or “abuse of power”—a standard that encompassed condemnations prompted by improper motives. Unfortunately, the Court abandoned that standard over time, replacing it with today’s overly deferential “fraud” standard. Significantly, however, the old standard has never been overruled. Had it applied in this case, the Strobel Family would be able to keep its property, as the trial court appeared to recognize: “Now, this may be unnecessary and unreasonable as to be oppressive and abuse of power, but, again, I don’t feel that that’s the state of the law. It does not appear to be the current state of the law.”
The Strobel Family will thus ask the Washington Supreme Court to take the modest step of restoring some meaning to Washington’s “necessity” requirement and, in so doing, some degree of protection to home and small business owners in the state. No Washingtonian should have to lose his or her home or business to the government wrecking ball simply because it is not upscale enough. When the government acts oppressively and abuses its power, when the government makes “damn sure” to target your property, there ought to be some recourse.
The Strobel Family will also ask the court to ensure that government not be allowed to use a pretense of public use to take more property than it needs for its project. Although the City’s condemnation ordinance claims the City needs all of the Strobel Family’s property, the evidence is clear that the City has not ruled out transferring any property remaining after a legitimate public use to a private entity—namely, Urban Partners, the City’s developer. In fact, subsequent to its passing the ordinance, the City conceded that there would be some property left over, that it has “not made a final determination of what’s going to happen with” that property, and that it might be used “for future private development.”
The Strobel Family urges the Court to reject the City’s position that government may condemn as much property as it wants so long as some aspect of the project contains a public use. Under such reasoning, if the government condemns one percent of a piece of property and devotes it to a public use, its decision to take the remaining 99 percent will not be disturbed by the courts absent evidence of fraud or constructive fraud.
The Litigation Team
The lead attorney is Institute for Justice Washington Chapter (IJ-WA) Staff Attorney Michael Bindas. Also on the litigation team are IJ-WA Executive Director William Maurer and Seattle attorney Eric Stahlfeld, who was lead attorney in the Superior Court and Court of Appeals.
The Institute for Justice is a nonprofit public interest law firm that represents individuals when government has violated their constitutional rights. From its offices in Seattle, the Institute’s Washington Chapter litigates under the Washington Constitution to reinvigorate economic rights, preserve property rights, promote educational choice and defend the right of Washingtonians to freely speak, write and publish on all subjects. The Institute for Justice was founded in 1991.
For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:
John Kramer, Vice President for Communications (firstname.lastname@example.org)
Lisa Knepper, Director of Communications (email@example.com)
Institute for Justice 901 N. Glebe Rd., Suite 900 Arlington, VA 22203 (703) 682-9320
Michael E. Bindas Staff Attorney Institute for Justice Washington Chapter 811 First Avenue, Suite 625 Seattle, WA 98104 W: (206) 341-9300 C: (425) 830-9716 E-mail: firstname.lastname@example.org
 Stuart Eskenazi, Home-away-from-home vs. development, Seattle Times, April 16, 2005, available at http://seattletimes.nwsource.com/html/localnews/ 2002243254_mealmakers16m.html?syndication=rss.
 Downtown Burien Master Plan — Phase II, at 28-38 (Dec. 2002). On file with the Institute for Justice.
 Urban Partners, LLC, Burien Town Square Development Concept (Apr. 15, 2004). On file with the Institute for Justice.
 Deposition of Larry Fetter, at 33, 36 (Aug. 2, 2005). On file with the Institute for Justice.
 Resolution 201 (Oct. 18, 2004). On file with the Institute for Justice.
 Resolution 208 (Jan. 24, 2005). On file with the Institute for Justice.
 King County Superior Court, Verbatim Report of Proceedings, at 37 (Aug. 5, 2005). On file with the Institute for Justice.
 City of Burien v. Strobel Family Investments, No. 56710-1-I, 2006 Wash. App. LEXIS 1136 (Wash. Ct. App. June 12, 2006).
 Stuart Eskenazi, Home-away-from-home vs. development, Seattle Times, April 16, 2005.
 Comprehensive Plan for the City of Burien, at II-47 (Nov. 1997). On file with the Institute for Justice.
 Downtown Burien Master Plan — Phase II, at 28-38 (Dec. 2002).
 Urban Partners, LLC, Burien Town Square Development Concept (Apr. 15, 2004).
 Deposition of Gary Long, at 20-23 (July 7, 2005).
 Cf. Summary of Discussion of City of Burien, Strobel Family Trust, Urban Partners and Meal Makers Meeting. On file with the Institute for Justice.
 Deposition of Larry Fetter, at 31-36 (Aug. 2, 2005).
 Id. at 35.
 Id. at 36 (emphasis added); see also id. at 33 (“He said that 151st, that we, the city, needed to make damn sure that the road went where it is . . . .”).
 Resolution 201 (Oct. 18, 2004).
 Declaration of David Wright, at 3 & Ex. B (July 7, 2005). On file with the Institute for Justice. See also Deposition of Gary Long, at 76 (July 7, 2005).
 Deposition of Gary Long, at 87 (July 7, 2005).
 E-mail from Stephen Clark to John Schwartz, Gary Long, and David Cline (Nov. 10, 2004) (emphasis added); Deposition of Steve Clark, at 35-38 (Aug. 2, 2005). Both on file with the Institute for Justice.
 Deposition of Steve Clark, at 37, 38-39 (Aug. 2, 2005).
 Declaration of David Wright, at 3 & Ex. C (July 7, 2005); E-mail from Stephen Clark to David Cline (Nov. 9, 2004). On file with the Institute for Justice.
 Resolution 208 (Jan. 24, 2005); Declaration of David Wright, at 3.
 Ordinance 426 (Feb. 7, 2005). On file with the Institute for Justice.
 Deposition of Gary Long, at 6, 10, 11 (July 7, 2005).
 Declaration of David Wright, at 4 & Ex. D.
 Letter from Daniel A. Rosenfeld of Urban Partners to Gary Long, at 3 (Feb. 25, 2005). On file with the Institute for Justice.
 Voicemail from Daniel A. Rosenfeld to Robin Oldfelt (Feb. 23, 2005) (attached as Ex. A to Declaration of Robin Oldfelt (July 8, 2005). On file with the Institute for Justice.
 King County Superior Court, Verbatim Report of Proceedings, at 35 (Aug. 5, 2005).
 Id. at 36-37.
 Id. at 35.
 Id. at 36.
 As for the City’s concession that it did not have plans to use all the Strobel property it was condemning, that it had “not made a final determination of what’s going to happen with” the residual land, and that the land left over might be used “for future private development,” the court cursorily concluded, without explanation: “There’s no doubt that the Strobel property will be used for a street, a park, and/or parking. They are a public use, and so this Court finds that the public use element is satisfied.” Id. at 34.
 City of Burien v. Strobel Family Investments, No. 56710-1-I, 2006 Wash. App. LEXIS 1136, at 13 (Wash. Ct. App. June 12, 2006).
 Id. at 9 (quoting HTK Mgmt., LLC v. Seattle Popular Monorail Auth., 155 Wn.2d 612, 634 (2005)).
 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005).
 Van Horne’s Lessee v. Dorrance, 2 U.S. 304, 311 (1795).
 U.S. Const. amend. V (“nor shall private property be taken for public use, without just compensation”).
 Wash. Const. art. I, § 16.
 In re Petition of City of Seattle (Westlake II), 104 Wn.2d 621, 623 (1985).
 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005).
 State ex rel. Postal Tel.-Cable Co. v. Super. Ct. of Grant County, 64 Wash. 189, 194-95 (1911).
 E.g., Central Puget Sound Regional Transit Auth. v. Miller, 156 Wn.2d 403, 411, 417 (2006).
 155 Wn.2d 612 (2005).
 Postal Tel.-Cable, 64 Wash. at 194; State v. Super. Ct. for Yakima County, 128 Wash. 79, 84-85 (1924); State v. Super. Ct. in and for Grant County, 112 Wash. 34, 38 (1920); see also Deaconess Hosp. v. Wash. State Highway Comm’n, 66 Wn.2d 378, 405 (1965) (allowing inquiry into whether “the agency’s motives [were] honest and intended to benefit the public” and “free of any purpose to oppress or injure”); State ex rel. Tacoma Sch. Dist. No. 10, Pierce County v. Stojack, 53 Wn.2d 55, 64 (1958) (noting that “the action of a public agency or a municipal corporation having the right of eminent domain in selecting land for a public use” may be “controlled by the courts . . . for . . . improper motives.”).
 King County Superior Court, Verbatim Report of Proceedings, at 37 (Aug. 5, 2005).
 Deposition of Gary Long, at 6, 10, 11 (July 7, 2005).