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Washington's Eminent Domain Laws and Property Rights

Property Rights in the State of Washington

Washington property right protections are stronger for property owners than in some other nearby states, yet still favor condemnors to a large degree. Long before the United States Supreme Court’s decision in Kelo, the Washington State Constitution prohibited the taking of private property for private use except for very limited circumstances, such as a private way of necessity or drains, flumes, or ditches for agricultural, domestic, or sanitary purposes. Wash. Const. art. 1 § 16. In addition, Washington law requires that agencies reimburse up to $750 for owner’s costs related to a professional evaluation of an agency’s formal offer and appraisal; yet, this favors condemnors because eminent domain appraisal costs usually significantly exceed that allowance. In addition, Washington agencies cannot do a quick take to gain immediate possession of the property prior to final resolution of the case. Instead, an agency must reach an agreement with the property owner to obtain early possession. However, there is a very big stick an agency has to gain the owner’s cooperation in granting early possession—if the property owner declines to grant possession then the owner may forgo their ability to recover attorney’s fees, costs and expenses.

Meet OCA's Washington Attorney

Heather A. Cunningham

Heather A. Cunningham is a shareholder at Schwabe, Williamson & Wyatt, P.C., and is admitted to practice in Washington, Idaho, and Oregon. Heather has been advising and representing citizens facing eminent domain issues since 1996. She has been involved in every aspect of eminent domain over the years, from pre-condemnation planning and negotiation through litigation and, when necessary, appeal. She has assisted owners navigating entitlement, easement, access or other issues which impact their ability to use and develop their land. Heather works tirelessly to see that the compensation property owners receive when land is taken is the “just compensation” constitutionally required. Heather has also been involved in spearheading legislative reforms designed to correct injustices in the law and balance the playing field between property owners and governmental entities with the power to take private property through condemnation.

A Summary of Washington's Eminent Domain Laws

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    The State has the inherent power to condemn property for public use, which independent from but limited by the state constitution. Miller v. City of Tacoma, 61 Wn.2d 374, 378, P.2d 464 (1963); City of Tacoma v. Weckler, 65 Wn.2d 677, 683, 399 P.2d 330 (1965). The Washington State Constitution limits this power by requiring that private property cannot be taken for public or private purposes without payment of just compensation. Wash. Const. art. I, § 16. In addition, property must be taken for public use unless it is one of the very limited private uses, including private ways of necessity or for or drains, flumes, or ditches for agricultural, domestic, or sanitary purposes. Id.

    The State of Washington may delegate its power to condemn to one of its political subdivision by enacting a statute authorizing that agency to exercise eminent domain for certain purposes. Seattle v. State, 54 Wn.2d 139, 143, 338 P.2d 126 (1959). However, since such statutes are strictly construed, the delegation must be given in express terms or by necessary implication. Id. at 128; Weckler, supra, 65 Wn.2d at 683. Legislative grants have been made to cities, counties, and school districts within the state’s eminent domain code, and additional grants are located in specific codes relating to municipal corporations or purposes or private companies serving the public benefit (such as special districts, public facilities districts, electric franchises, port districts, railroads, electric companies, gas companies, public transportation benefit areas and regional transit authorities, among others). Because delegations of authority are strictly construed, such delegations should be confirmed at the outset of any case to determine whether the entity attempting to exercise eminent domain actually has the lawful delegation and has met the prerequisite procedural steps to do so.

  • What Are the Legal Requirements for Exercising the Power?

    Under Washington law, property can only be condemned for the purposes provided by the delegation of authority statutes for the public use and benefit, and cannot be condemned if the condemnor intends to use the property for a private use unless it falls in the very limited exceptions under the state constitution, including for private ways of necessities, or for or drains, flumes, or ditches for agricultural, domestic, or sanitary purposes. In all situations, just compensation must be paid for all property taken. Finally, Washington law requires condemnors to appraise the property and to make an offer to the property owner as well as attempt to negotiate in good faith prior to filing a condemnation action.

    To learn more about the procedural aspects of eminent domain cases in Washington, look to Title 8 of the Revised Code of Washington.

  • What Limitations or Defenses Exist?

    Once a decision to proceed with a public project is made and the acquisition of the property necessary for the project is determined by an authorized governmental entity, the grounds to challenge the condemnation are limited under Washington law. However, defenses can be raised as to whether a proper public use exists for the condemnation or whether the prerequisite legal authority is present and required procedural steps were taken. In such situations, the Court will review the submitted evidence and rule on the defenses. Great weight is typically given to a condemnor’s legislative decision to condemn for a public use, and the declaration that a proposed acquisition is in the public interest and necessary for a public purpose “will… be deemed conclusive, in the absence of proof of actual fraud or such arbitrary and capricious conduct as would amount to constructive fraud.” City of Tacoma v. Weckler, 65 Wn.2d 667, 399 P.2d 330 (1965).

  • What Constitutes a Public Purpose?

    Like the United States Constitution, with very few exceptions, Washington Constitution limits the use of eminent domain to “public use.” One of the first orders the Court enters in a Washington eminent domain proceeding concerns whether the taking is for a public use and the necessity thereof. The court must find: (1) the use is really for a public use; (2) the public interest requires it; and (3) the property to be appropriated is necessary for that use. The issue of whether a proposed acquisition is actually for a public use is a decision for the court, but a court gives an agency’s legislative determination great weight. Wash. Const. art. I, § 16; Des Moines v. Hemenway, 73 Wn.2d 130, 437 P.2d 171 (1968); City of Tacoma v. Weckler, 65 Wn.2d 667, 399 P.2d 330 (1965). Issues of public interest and public necessity are solely legislative determinations.

    What constitutes a public use in Washington is quite broad, and can generally include any use affecting the general public, even if to a small part of a community, rather than particular individuals. Typical uses that satisfy a public use can include highway, roads, parks, schools, and other improvements that serve the public benefit. However, even prior to the United States Supreme Court’s decision in Kelo, Washington law prohibited condemning for a private use except in very limited circumstances (e.g., private ways of necessity and certain agricultural uses); however, the uses for which an agency can condemn property are still very broad, and may include some economic development purposes.

  • How is Just Compensation Determined?

    Under Washington law, the measure of just compensation is the fair market value of the property taken. When an entire parcel of property is taken, just compensation is the fair market value of the parcel plus any improvements attached to the property, to the extent the improvements affect the value of the land. WPI 150.05. For partial takings, just compensation is the fair market value of the property and property rights acquired, which is generally measured by the difference between the fair market value of the entire property before the acquisition and the fair market value of the property remaining after the acquisition. WPI 150.06. Just compensation requires that the property be valued at its highest and best use, including consideraton of the future use of the property to which the property is adaptable. Doolittle v. Everett, 114 Wn.2d 88, 786 P.2d 253 (1990). Just compensation is determined as of the first day of trial or the date the condemnor takes possession of the property, whichever is earlier. Cheskow v. Port of Seattle, 55 Wn.2d 416, 348 P.2d 100 (1950). If not successfully negotiated by the condemnor and owner, just compensation is often determined at trial by jury.

  • How Is Fair Market Value Defined?

    In Washington, fair market value is defined as “the amount of money which a well-informed buyer, willing but not obliged to buy the property would pay, and which a well-informed seller, willing but not obligated to sell it, would accept.” State v. Rowley, 74 Wn.2d 328, 444 P.2d 695 (1968). Fair market value generally includes the considerations that a seller and buyer would consider in an arms-length transaction, and is measured as of the first day of trial or the date the condemnor obtains possession, whichever is earlier. Because fair market value is often driven by both the date of value applied and the highest and best use of the property, both elements play an important role and impact the fair market value determination. Generally, the property’s fair market value is the subject of opinion testimony by expert qualified real estate appraisers, although an owner is presumed to be sufficiently acquainted with the property to give an intelligent estimate of the value of their property. State v. Wilson, 6 Wn. App. 443, 493 P.2d 1252 (1972); Cunningham v. Town of Tieton, 60 Wn.2d 4334, 436, 374 P.2d 375 (1962). Appraisers will often use a combination of different valuation approaches to determine the fair market value of the property, including comparable sales, income, and cost approaches.

  • What About Recovering Damages to Remaining Property?

    Under Washington law, when a condemnor takes only a portion of the property or less than the fee interest, just compensation includes the fair market value of the land taken together with damages to the remainder of the land not taken. State v. McDonald, 98 Wn.2d 521, 525, 656 P.2d 1043 (1983). However, some damages suffered by an owner are not compensable, including certain activities undertaken by the government under the police power (e.g., regulating traffic lanes and speed, parking regulations, changes in the highway system resulting in reduced or increased volume of traffic, circuity of travel to access a property); business losses or loss of profits during construction of the project; special damages suffered by the owner of the property; remote or speculative damages; offers that others have made to the owner to buy the property that were rejected, among others. However, an owner who must move from their property, either residential or business, may be able to recover some of its costs, including reasonable and necessary moving and related costs and limited re-establishment expenses under an agency’s relocation assistance program.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    In Washington, there are several circumstances where an owner may be able to recover attorney fees and expert fees. RCW 8.25.020 requires a condemor to pay up to $750 of an owner’s actual and reasonable expenditures incurred in evaluating the condemnor’s offer to acquire the property. In addition, a court will award a property owner reasonable attorney fees and expert witness fees after trial if: (11) the condemnor fails to make a written offer of settlement to the owner at least 30 days prior to trial; or (2) the determination of final just compensation exceed the condemnor’s highest written settlement offer made to the owner at least 30 days prior to trial by ten percent or more. RCW 8.25.070. However, when an award of fees and costs is based on one of these two circumstances, if the owner may not recover fees and costs if the owner had previously refused to grant the condemnor immediate possession of the property within 30 days of the condemnor’s written request or with 15 days after entry of the order adjudicating public use and necessity, whichever is later. RCW 8.25.070. Finally, if a condemnor loses the public use and necessity adjudication or otherwise abandons the condemnation proceeding, the court must award the property owner attorney’s fees and expert witness fees. RCW 8.25.075. Sound Transit has the power to condemn for light rail infrastructure, and has chosen to allow, in some circumstances, a reimbursement to owners of up to $7,500 for attorneys fees, up to $5,000 for appraisal costs, and up to $2,500 for CPA expenses. The agency advises owners when making offers about the availability of these reimbursements.

REFERENCES AND LINKS

Washington

US Bank Centre
Suite 3400, 1420 Fifth Ave.
Seattle WA 98101
Tel: (206) 407-1568
hcunningham@schwabe.com | www.schwabe.com

Heather uniquely practices eminent domain law in both Washington State and Idaho and is a proud designated OCA member of both states. Heather has been advising and representing citizens facing eminent domain issues since 1996. She has been involved in every aspect of eminent dojmain over the years, from precondemnation planning and negotiation through litigation and, when necessary, appeal. In addition, she has assisted owners navigating entitlement, easement, access or other issues which impact their ability to use and develop their land.

Heather has assisted Washington property owners facing condemnation of property rights from Sound Transit, WSDOT, and various counties and cities around the state. When the opportunity arises to have input into a project before the project plans are finalized, Heather has used her experience to help owners work with cities and government agencies to find common sense modifications to projects that provide for agency needs yet minimize owner impacts. When impacts of a project result in “minor” takings that have large impacts on use and value, Heather’s experience in obtaining evidence of those impacts on the remaining property has helped owners obtain compensation. Whether an entire property is being condemned or only a subset of rights temporarily, Heather draws on over two decades of experience in eminent domain to identify the relevant issues (sometimes missed by condemnors) and assist her clients.

Professional Affiliations

  • CREW (Commercial Real Estate Women)
  • Appraisal Institute (Affiliate Member)
  • IRWA (International Right of Way Association) Omicron Delta Kappa
  • Pi Kappa Delta
  • National Forensic League
  • Owners’ Counsel of America, Board of Directors (2001-2009)

Education

  • Hillsdale College, B.A. 1993
  • Pepperdine University School of Law, J.D. 1996
  • Trial Lawyer’s College, 2000

Bar Admissions and Memberships

  • Washington
  • Oregon
  • Idaho
  • United States Supreme Court
  • United States District Court of Idaho and Colorado
  • U.S. Court of Appeals Ninth Circuit
  • ABA,  Washington, Oregon and Idaho State Bar Association
  • King County Bar Association

Heather uniquely practices eminent domain law in both Washington State and Idaho and is a proud designated OCA member of both states. Heather has been advising and representing citizens facing eminent domain issues since 1996. She has been involved in every aspect of eminent dojmain over the years, from precondemnation planning and negotiation through litigation and, when necessary, appeal. In addition, she has assisted owners navigating entitlement, easement, access or other issues which impact their ability to use and develop their land.

Heather has assisted Washington property owners facing condemnation of property rights from Sound Transit, WSDOT, and various counties and cities around the state. When the opportunity arises to have input into a project before the project plans are finalized, Heather has used her experience to help owners work with cities and government agencies to find common sense modifications to projects that provide for agency needs yet minimize owner impacts. When impacts of a project result in “minor” takings that have large impacts on use and value, Heather’s experience in obtaining evidence of those impacts on the remaining property has helped owners obtain compensation. Whether an entire property is being condemned or only a subset of rights temporarily, Heather draws on over two decades of experience in eminent domain to identify the relevant issues (sometimes missed by condemnors) and assist her clients.

Professional Affiliations

  • CREW (Commercial Real Estate Women)
  • Appraisal Institute (Affiliate Member)
  • IRWA (International Right of Way Association) Omicron Delta Kappa
  • Pi Kappa Delta
  • National Forensic League
  • Owners’ Counsel of America, Board of Directors (2001-2009)
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