Eminent domain

Key Takeaways

• Eminent domain is the government's power to take private property for public use over the owner's objection, on condition that just compensation is paid.
• Eminent domain is the power; condemnation is the court proceeding that carries the power out. Exam questions turn on that split.
• In Washington, article I section 16 of the state constitution bars taking or damaging private property for public or private use without just compensation having been first made, or paid into court for the owner.
• Washington makes whether a use is really public a judicial question, decided by the courts without regard to any legislative assertion that the use is public.

What It Means

Eminent domain is the power of government to take private property for a public use even when the owner refuses to sell. It is an inherent power of sovereignty rather than something the owner ever agreed to, which is why it sits outside the Bundle Of Rights a deed conveys. What limits the power is the obligation to pay for what is taken.

Three elements have to line up. There must be a taking, the taking must be for a public use, and the owner must receive Just Compensation for what was taken. Roads, schools, transit lines, utility corridors, and public buildings are the familiar public uses. Governments also delegate the power by statute, which is how a utility or a transit agency ends up able to condemn a strip of private land.

Eminent domain is not the same thing as Police Power, and mixing the two is the most common error on the topic. Police power regulates how land may be used, through zoning and building codes, and ordinarily pays the owner nothing. Eminent domain takes the property or an interest in it, and always pays. The power is exercised through the court proceeding called Condemnation.

How It Works in Washington

In Washington the power is framed by article I, section 16 of the state constitution. It provides that no private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner. Two details in that sentence carry real weight. Washington covers property that is damaged, not only property physically taken, which is broader than the federal wording. And the compensation comes first, so the money is paid, or deposited with the court, before the government takes the property.

The same section makes public use a judicial question. Whenever an attempt is made to take private property for a use alleged to be public, the courts decide whether the contemplated use is really public, without regard to any legislative assertion that the use is public. Compensation is ascertained by a jury unless a jury is waived, as in other civil cases in courts of record.

Cities exercise the power under chapter 8.12 RCW, Eminent Domain by Cities. RCW 8.12.030 authorizes every city and town to condemn land and property for streets, alleys, bridges, drains, public squares, public buildings, and the other purposes it enumerates, after just compensation has been first made or paid into court for the owner. RCW 8.12.100 then requires the court to impanel a jury to ascertain the just compensation to be paid for the property taken or damaged.

Example

The City of Renton widens an arterial and needs a strip along the front of a commercial lot owned by Gwendolyn Achterberg. The strip is 12 feet by 250 feet, or 3,000 square feet, out of a 20,000 square foot parcel, which is 15 percent of the site.

The city's appraiser values the strip at $18 per square foot, or $54,000, and adds $26,000 for damage to the remainder because the taking removes four parking stalls. That produces a written settlement offer of $80,000. Gwendolyn's appraiser puts the total at $116,000. The parties do not settle, the city files a condemnation petition, and a jury returns a verdict of $104,000.

Two things follow. Gwendolyn keeps the rest of the parcel and still owns it in fee simple, because only the strip changed hands. And because the $104,000 verdict exceeds the city's highest written settlement offer of $80,000 by 30 percent, well over the ten percent threshold, RCW 8.25.070 supports an award of her reasonable attorney fees and expert witness fees on top of the verdict.

Common Mistakes and Exam Traps

• Eminent domain is the power and condemnation is the proceeding. A question asking what the government exercises wants eminent domain; a question asking what it files wants condemnation.
• Eminent domain is not police power. Police power regulates use through zoning and building codes and pays nothing; eminent domain takes property or an interest in it and pays just compensation.
• Inverse condemnation runs the other direction. There the owner brings the action, claiming government activity took or damaged the property without any formal proceeding.
• Washington's constitution says taken or damaged. A Washington question can involve compensable damage to property the government never physically occupied.