Legislative Momentum Building To Protect Washingtonians From Eminent Domain Abuse

John Kramer
John Kramer · May 20, 2008

Seattle—Eminent domain reform has emerged as a top priority for the legislative session starting next week in Olympia. This emphasis coincides with a new report outlining the very real threat of eminent domain abuse statewide and a bipartisan reform proposal endorsed by both the Governor and the Attorney General.

The new Policy Brief published by Washington Policy Center (WPC), “A False Sense of Security: The Potential for Eminent Domain Abuse in Washington State,” documents shortcomings in Washington law that allow the State and local governments to abuse their eminent domain power.

The author of the report, William R. Maurer, executive director of the Institute for Justice Washington Chapter and WPC adjunct scholar, held a press conference on Wednesday, January 3 at the Legislative Building in Olympia, along with WPC President Dann Mead Smith, and Washington property owners, to discuss the report’s findings and suggestions for reform. Washington Attorney General Rob McKenna and House Majority Leader Lynn Kessler will also be available to discuss proposals for the coming session.

Among the reform suggestions is a bill backed by both Governor Christine Gregoire and Attorney General McKenna that would open up the essentially secret meetings where local governments decide to use eminent domain. Right now, property owners can only find out about such meetings by seeking out postings on obscure government websites. The reform bill would provide citizens whose property is threatened with direct personal notice of the meetings where the fate of their property could be decided.

Attorney General McKenna said, “People shouldn’t be expected to click through a series of Web pages every week to protect their property from being considered for condemnation. Condemnations are critical decisions that can affect people’s homes and businesses, and this legislation ensures that property owners receive timely notice that such an important decision is being considered. If even one contentious condemnation is avoided, this bill will pay for itself many times over.”

“No one should lose their property without even being notified,” said Rep. Lynn Kessler (D-Hoquiam), a sponsor of the bill. “A basic tenet of our democracy is due process.”

Maurer noted that the bipartisan effort of the Governor, House Majority Leader and the Attorney General reflects the broad support nationwide for protecting homes and small businesses. In the last election, voters overwhelmingly approved a number of ballot measures to stop eminent domain abuse.

In Pierce County, voters approved by a 70-30 margin a county charter amendment that restricted condemnations for economic development.

“The leadership of the Governor, the Attorney General and the House Majority Leader shows that elected officials understand the strong concerns that people have over this issue,” WPC President Dann Mead Smith said. “After Kelo, people were appalled to discover that the government can condemn someone’s home or small business in order to give it to a private developer.”

Maurer added, “This reform proposal is an important step. It would open up government condemnation proceedings to the light of day and give property owners a real chance to be heard.”

The Policy Brief describes a number of areas where Washington law permits the government to abuse eminent domain. Although the Washington Constitution is more protective of private property than the federal Constitution, those protections are being whittled away by statutes and court rulings.

“What Washingtonians have now is a false sense of security, not real protections from eminent domain abuse,” Maurer said.

The Brief notes two other areas where reform is needed. The first involves Washington’s Community Renewal Law, a statute that permits the government to condemn “blighted” property and transfer it to private developers. Unfortunately, the law is written so broadly that practically every neighborhood in Washington State could be considered blighted. Washington’s neighborhoods face the same threat as the residents in New London, Conn.; the sole difference is that a Kelo-style taking in Washington must be accomplished through the Community Renewal Law. The City of Auburn just declared much of its downtown “blighted” and the City of Seattle is considering doing the same to the Rainier Valley.

Also, Washington law permits the government to condemn more land than necessary and sell anything not used for a public use to developers. This happened when the Seattle Monorail condemned the Fujii family’s property in Pioneer Square permanently despite needing it only temporarily. The Monorail sought to become a real estate speculator with the property once it was done with it.

Maurer noted that reform of these aspects of Washington law is necessary for Washingtonians to be more secure that their property won’t be unconstitutionally taken from them.

The report is available at www.washingtonpolicy.org and www.ij.org.