December 2006

Making “Damn Sure” Property Rights Are Protected

By Michael Bindas

May the government take your home or business for the sole purpose of making “damn sure” it is eliminated, even if the government doesn’t need the land on which it sits?  Represented by IJ’s Washington Chapter, seven sisters in Burien, Wash., are asking the Washington Supreme Court to answer that question.

IJ client Robin Oldfelt, one of seven sisters, is fighting eminent domain abuse.

The Strobel sisters inherited a piece of property in Burien when their parents passed away.  For a quarter century, the family has leased it to Meal Makers, a popular diner-style restaurant.

The City of Burien, however, has different plans for the property.  It wants to turn the area into a new “Town Square” development with upscale condos, shops and restaurants.

Because the Meal Makers building does not fit the City’s “vision” for the project, the City decided to site a road through the building and condemn it.  To be precise, the City Manager instructed his staff to “make damn sure” the road went through the building.  The staff configured—then re-configured—the road until it went straight through the restaurant.  Then the City condemned the property.

The Strobels challenged the condemnation, arguing that their property was not “necessary” for the road—a requirement for condemnation under Washington law.  The judge seemed to agree, noting that the road “could have been easily accomplished without affecting the Meal Makers restaurant or the Strobel property.”  He suggested that the City’s conduct might be “oppressive” and an “abuse of power,” and described the condemnation decision as “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.”

Nevertheless, the judge felt his hands were tied by the extraordinary level of deference that Washington law affords government “necessity” determinations.  He allowed the condemnation, and the Court of Appeals affirmed.

At that point, the Strobel sisters enlisted IJ-WA to take up their fight.  On August 21 of this year, we filed a petition with the Washington Supreme Court urging it to hear the appeal of the sisters.  Our request of the court is simple:  make clear that property does not become necessary to the government simply because government officials want to make “damn sure” it is taken.

Michael Bindas is an IJ Washington Chapter attorney.