Arlington, Va.—May the government take your property simply because it doesn’t think it is upscale enough? What if the government doesn’t actually need your property, but it takes it just because one official wants to be “damn sure” it’s eliminated?
Seven sisters in Burien, Wash., are asking the Washington Supreme Court to answer these questions. Last month, the Strobel sisters asked the Court to review a decision upholding the City of Burien’s condemnation of their property for a fancy new “Town Square” development. The lower courts allowed the condemnation despite the trial court’s concern that the Strobel family’s property was in no way necessary for the City’s project, that the City deliberately targeted the property because the property didn’t fit its “vision,” and that the City’s conduct may well have been “oppressive” and an “abuse of power.”
In its response, the City of Burien claimed there are virtually no limits on government’s decision about what and how much property to condemn through eminent domain. So long as the government doesn’t engage in “fraud,” the City argued, it can take whatever it likes and the courts are powerless to do anything about it.
Michael Bindas, a staff attorney at the Institute for Justice Washington Chapter (IJ-WA), which represents the Strobel family, warned of the astounding sweep of the City’s position: “According to Burien, the government has carte blanche to take your property, even if it doesn’t actually need the property for a public use—purported or otherwise. So long as the government doesn’t engage in fraud, Burien says it can take whatever and however much property it wants—period. That’s not how the government is supposed to operate.”
The Strobel family’s ordeal began when Burien decided to build a new development—upscale condos, shops, restaurants and offices—around the property the sisters inherited from their parents, who passed away in 1998. For nearly two decades, their parents had leased the property to Meal Makers, a diner-style restaurant popular with Burien locals, particularly seniors. The sisters, who hold the property in trust as Strobel Family Investments, maintained the lease with Meal Makers. The restaurant continues to thrive, serving up local favorites, like pot roast and peach pie.
But Burien decided the Meal Makers building wasn’t upscale enough for the Town Square development, so the City condemned it. Simply condemning the property and turning it directly over to the City’s Los Angeles-based developer, however, would have been politically unpopular and would have been an illegal “private taking” forbidden by the Washington Constitution. So Burien came up with a scheme. It would plan a road—an ostensibly public use for which eminent domain is authorized—right through the Meal Makers building.
What happened next is a case study in bureaucratic abuse of constitutional rights.
The City Manager informed his staff to “make damn sure” the road went through the building. The staff complied, developing a plan that appeared to run the road over the Strobel family’s property. When a subsequent survey revealed that the road would impact only a small corner of the property, the staff developed yet another site plan that put the road right through the building. The City then condemned the Strobel family’s property.
Under Washington law, however, a condemnation does not pass muster simply because the government asserts a public use. Rather, the property being condemned must be necessary for the public use. So the Strobel family challenged the condemnation in court.
IJ-WA executive director William Maurer explained, “The ‘necessity’ requirement is meant to ensure that if government must resort to eminent domain, it only takes property it actually needs. The ‘necessity’ requirement is supposed to protect against this kind of government overreaching.”
In the Strobel family’s case, a King County Superior Court judge noted that the road “could have been easily accomplished without affecting the Meal Makers restaurant or the Strobel property.” He described the City’s 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.” He further suggested that the City’s condemnation might be “oppressive” and an “abuse of power.”
Nevertheless, the judge concluded he must allow the condemnation given the incredibly deferential standard Washington courts apply in reviewing “necessity.” As the judge put it, he was bound to uphold the condemnation unless there was proof of fraud. The Court of Appeals affirmed.
The Strobel family is now asking the Washington Supreme Court to overturn the lower courts’ decision and to make clear that Washington law provides for more searching and meaningful review than that which occurs under the virtually insurmountable “fraud” standard.
According to Bindas, the Washington Supreme Court should accept the case to preserve the important role courts play in reviewing whether government actually needs land it seeks to take: “Judges should not be forced to give knee-jerk deference to government’s condemnation decisions. The courts are a vital check against legislative and executive abuses of power. The Strobels deserve to have their case heard by a court system empowered to protect the family’s rights.”
The Strobel family is also asking the Court to review the City of Burien’s claim that it needs all of the Strobel family’s property. Although the City’s condemnation ordinance indicates that the entire property is needed, the City Manager conceded that there would be some leftover land and that it might be used “for future private development.”