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GOP lawmakers want eminent domain regs strengthened

For the Olympia Report

Posted 1/28/2013

When Sound Transit decided in 2007 to build a light-rail stop on the property where Doris Cassan and her husband had operated an airport parking lot for 40 years, the city of Sea-Tac decided it was time to follow the trendy example of other cities by creating a “downtown” retail hub with the train station as a hub.

But in order to make that possible, the city would need to buy Cassan’s property or, when she declined to sell, use the government power of eminent domain to condemn the Cassan’s property so that private developers could enact its vision for the city.

The action, however, stretched the traditional understanding of eminent domain because it called for using the power in order to replace one private property owner with another rather than to build a public-use facility like a road or bridge.

Eventually, public outcry over the plan forced city officials to back away from it and try something else.

By definition, eminent domain is the power a government can use to take, with just compensation, private property for a public use. And, in fact, Washington state’s constitution forbids taking private property for anything other than a public use.

But concerns that recent cases have begun to chip away at that protection led several lawmakers to promote a bill underscoring its intent. That bill, SB- 5014, got a hearing in the Senate Law and Justice committee on Wednesday.

“Past practices of some municipal governments…have come very close to violating that constitutional provision,” said Sen. Don Benton (R-Vancouver), prime sponsor of the bill, which would clarify the state’s restrictions on the use of eminent domain.

It’s similar to laws that have been passed in 43 states since the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London. That decision allowed cities to use their powers of eminent domain to force one property owner to hand over property to another private entity in order to enable economic development, if state law allows it.

In the wake of the decision, many states have taken action to ensure their laws protecting property rights are clear.

The bill would bar the use of eminent domain to take private property for any reason other than building a public-use facility or provide a public service necessary to protect public health and safety. Some examples might include roads, schools, sewer systems or utility corridors.

“While we recognize that the Washington constitution is strongly worded on this point, there are a number of loopholes both in Washington case law and Washington statute that lead us to believe we are not as secure in our property and our homes and businesses as we believe we are,” said Bill Maurer, an attorney for the Institute for Justice, a public-interest legal group that argued the Kelo case.

In particular, Maurer cited the state’s Community Renewal Law, which allows cities to take private property for development if it qualifies as “blight.” He referenced two 2006 examples, when the cities of Renton and Seattle tried to use the law for redevelopment, backing down only in the face of community opposition.

Glen Morgan, property rights director for the Olympia-based Freedom Foundation, agreed the Community Renewal Law was a common source of eminent domain abuse, given that the definition of “blight” was unclear.

“Even here in the city of Olympia, the search for ‘blight’ is on so the city can find some property to condemn to get a $2 million block grant under the Community Renewal Law,” he said. “It isn’t for a public good right now; it’s for a property to condemn and the public use will be found at some point in the future.”

The committee took no action on the bill, although several lawmakers suggested possible revisions.

Sen. Adam Kline (D-Seattle) asked if the bill could be amended to include taking of private property by other privately owned entities such as railroads and telecommunications companies.

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