Power to condemn property shouldn't be so easy to abuse

Richard S. Davis
Everett Herald

Jan. 17, 2007

Olympia, WA - Few would mistake Bill Maurer for Stephen King, but the guy has a way with horror stories. Although he doesn't write fiction, Maurer pulls together the disparate events we read about daily to establish disquieting patterns. His latest, recently published by the conservative Washington Policy Center, is a compelling account of our eroding property rights.

Consider:

* The seven Strobel sisters lose their property when the Burien city manger orders his staff to "make damn sure" a new road passes through the building they lease to the Meal Makers diner. Apparently, he takes his mission to pave the way for downtown redevelopment literally.

* The Seattle Monorail seizes property necessary for only a short construction period, counting on a big profit on re-sale.

* The city of Auburn condemns sections of downtown under the Community Renewal Law, which allows condemnation for "community renewal of blighted areas."

The risk is pervasive, touching all property in the state.

Government's eminent domain power allows it to take private property for public use without the owner's consent. Traditionally and appropriately used for such things as road building and essential public facilities, it is a formidable power, one which must always be held in check.

In 2005, the U.S. Supreme Court, in Kelo v. New London, sweepingly expanded the power by allowing the city to use eminent domain to take property for economic development. Dissenting, Justice Sandra Day O'Connor wrote: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded. ... The specter of condemnation hangs over all property."

At the time, local experts told us to relax. Washington is not a "Kelo state" they said, using the new term for states with weak property rights, because our constitution prohibits taking private property for private use.

"The government has carte blanche to take however much it wants for as long as it wants," Maurer told me recently, "as long as there's some public use in the project." Under the Community Renewal Law, it is happening here.

The "Constitutional protections are inadequate," Maurer says, "because the courts won't enforce them and local governments disregard them.'

Dann Mead Smith, president of the Washington Policy Center, says the Legislature must narrow the law's "very liberal definition" of blight. How liberal? In condemning downtown Auburn a city official explained that blight "means anything that impairs or arrests sound growth."

A former Kirkland mayor and councilmember, Rep. Larry Springer (D-Kirkland) acknowledges the "nebulous definition" of blight. He has introduced legislation that includes prohibitions on taking property solely for economic development. He tells local officials concerned about new restrictions, "If you're not the problem, then (this legislation) should not be a problem."

Attorney General Rob McKenna says he will organize a task force after the legislative session to consider ways to reduce eminent domain abuse. His deputy told me that "all viewpoints will be represented." Often that means lots of people in large rooms accomplishing small things. That must not be the case here.

One simple reform - better notice of government action - has the support of Gov. Chris Gregoire, McKenna and House Majority Leader Lynn Kessler (D-Hoquiam). In 2003, Sound Transit relied solely on an Internet posting on its Web site to announce a hearing that resulted in the condemnation of property owned by a Tacoma couple. McKenna's proposal would require local governments to notify affected property owners through certified mail.

Appropriate. But, as Mead Smith says, "It will let people know that their property is threatened, but it won't by itself give people protection."

The public demands protection. Last year, voters in seven states adopted constitutional amendments restricting eminent domain. In an eighth, they gave such restrictions preliminary approval. And, in two other states, they passed statutory restrictions. The yes votes ranged from 55 percent to 85 percent. (Initiative 933, the regulatory takings measure that voters here rejected, did not deal with eminent domain.)

Eminent domain abuse can and should be contained by tighter laws, a vigilant citizenry and a judiciary less reflexively deferential to government officials. As Gov. Gregoire often says in other contexts, "the status quo is not good enough."

Richard S. Davis, vice president-communications of the Association of Washington Business, writes every other Wednesday. His columns do not necessarily reflect the views of AWB. Write Davis at richardd@awb.org or Association of Washington Business, P.O. Box 658, 1414 Cheery Street S.E., Olympia, WA 98507-0658.