Washington State House of Representatives Office of Program Research |
BILL ANALYSIS |
Judiciary Committee | |
HB 2427
Title: An act relating to restrictions on the exercise of the power of eminent domain.
Brief Description: Providing restrictions on the exercise of eminent domain.
Sponsors: Representatives Dunshee, Kessler, Morrell, Appleton, Hasegawa, Rodne, Santos, P. Sullivan, Tom, Grant, Dickerson, Hunter, Green, Takko and Schual-Berke.
Brief Summary of Bill |
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Hearing Date: 1/20/06
Staff: Bill Perry (786-7123).
Background:
Eminent Domain.
Eminent domain is the term used to describe the power of a government to take private property
for public use. The power has been recognized by federal and state courts as inherent and
necessary for the existence of government. Because it is an inherent power, express
constitutional or statutory authority is not necessary to create it. Rather, constitutions and
statutes define, restrict, and delegate the power of eminent domain and provide a procedural
framework for its exercise. The power of eminent domain extends to all types of property,
although it is most often associated with the taking of real property, such as acquiring property to
build a highway. A "condemnation" is the judicial proceeding used for the exercise of eminent
domain.
The Fifth Amendment to the U.S. Constitution provides simply that:
". . . private property [shall not] be taken for public use, without just compensation."
Article I, section 16 of the state constitution is more detailed. It provides, in part:
"Private property shall not be taken for private use, except for private ways of necessity, and
for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or
sanitary purposes. No private property shall be taken or damaged for public or private use
without just compensation having been first made . . . which compensation shall be
ascertained by a jury . . . Whenever an attempt is made to take private property for a use
alleged to be public, the question whether the contemplated use be really public shall be a
judicial question, and determined as such, without regard to any legislative assertion that the
use is public . . ." (emphasis added)
Other constitutional provisions grant eminent domain powers to telephone companies, make the
property of corporations subject to eminent domain to the same extent as the property of
individuals, declare the use of water for irrigation, mining and manufacturing to be a "public
use," and prohibit the exercise of eminent domain in conjunction with non-recourse revenue
bond financing of industrial development projects. In addition there are in excess of 300
statutory sections in the Revised Code of Washington dealing with eminent domain powers.
These statutes prescribe the process for bringing condemnation actions, for determining whether
a project meets the public use requirement, and for determining what constitutes the "just
compensation" that must be paid to the owner of condemned property. These statutes also confer
eminent domain powers on governmental entities ranging from counties to mosquito control
districts, as well as giving the power of eminent domain to corporations such as railroads,
electrical utilities and pipeline companies.
The "Public Use" Requirement under State and Federal Law.
The question of what is a "public use" has been answered differently by the federal and state
courts in construing the meaning of the respective constitutions. One obvious difference between
the two constitutions is that Article I, section 16 explicitly prohibits taking property "for private
use" (with limited exceptions), and the Fifth Amendment has no such explicit prohibition.
The recent U.S. Supreme Court decision in Kelo v. City of New London, is the Court's latest
interpretation of the Fifth Amendment's Taking Clause. The decision has caused a great deal of
comment and speculation across the country about the future use of the power of eminent domain
for economic development purposes. However, because of the restrictions on the use of eminent
domain found in the state's constitution, statutes, and court decisions, it appears unlikely that the
use of eminent domain upheld in Kelo would be permitted in this state.
In Kelo, the city of New London, Connecticut, planned to condemn property as part of an
economic development plan. The condemnation of property for the development plan did not
come from an area of blight. The plan called for the condemned property to be transferred to a
private developer. When completed, much of the property in the development was not to be
made available for use by the general public. The plan was intended to enhance the city's tax
base and to create jobs, among other things. The Court upheld the plan as meeting the "public
use" requirement of the Fifth Amendment.
By contrast, plans in this state involving condemnation for economic development or plans that
allow transfer of property to private parties have received much more critical scrutiny by the state
supreme court. In Hogue v. Port of Seattle, a 1959 decision, the court declared unconstitutional a
plan by a port district to condemn property and transfer it to private parties as part of the creation
of an industrial development district. The court required, as the state constitution does, that the
proponents of such a plan must show that the condemned property is to be put to what is "really"
a public use. Simply wanting to put someone's property to a better use is not sufficient grounds
to condemn it. On the other hand, in Miller v. City of Tacoma, a 1963 decision, the court upheld
the use of condemnation as part of an urban renewal plan. The less compelling argument that the
use contemplated in Miller was "really" public was apparently offset because the property to be
taken had been declared to be "blighted." In In re City of Seattle, a 1973 decision, the court
struck down a plan to acquire property in order to enhance the Westlake retail area of the city.
Some of the condemned property was to be transferred to a private developer. The court
concluded that the planned use of the property was predominately private, and therefore violated
the public use requirement of Article I, Section 16. Finally, in State ex rel. Washington State
Convention and Trade Center v. Evans, a 1998 decision, the court allowed the condemnation of
property as part of an expansion of the convention and trade center, even though a portion of the
property was transferred to a private party for the construction of a private parking garage. The
court determined that the private use of the property below the fourth floor expansion of the
center was merely "incidental" to the public use of the condemned property.
It appears that in Washington the public use requirement cannot be met by a plan to condemn
property simply to put it to a more productive use as part of an economic development project. It
also appears that while some transfer of condemned property for private use may be permissible,
such a transfer must be only incidental to a public use.
It is not clear how much weight the court will give to a legislative declaration of "public use."
Notwithstanding that Article I, Section 16 requires any question of "public use" to be determined
by the courts "without regard to any legislative assertion," the legislature has frequently made just
such assertions. For example, the statute dealing with the eminent domain power of counties
declares a condemnation to be for the public use "when it is directly or indirectly, approximately
or remotely for the general benefit or welfare of the county or of the inhabitants thereof." While
the courts do acknowledge and give some deference to legislative declarations, ultimately the
constitution explicitly vests authority to decide the question with the courts. It may be, however,
that a legislative declaration of what is not a public use would be viewed differently by the courts
than a declaration of what is, since government presumably can limit its constitutional powers
legislatively even if it cannot expand them.
Summary of Bill:
Changes are made with respect to the meaning of the public use requirement in condemnations
by the state, a county, a city or town, or a corporation.
Without exception, property may be taken only for "public use," which is defined to include only:
Public use specifically does not include taking property for economic development if the primary
purpose is increasing tax revenues, the tax base, employment, or general economic health.
The statutory declaration that a county condemnation is for a "public use . . . when it is directly or
indirectly, approximately or remotely for the general benefit . . ." is removed.
Appropriation: None.
Fiscal Note: Requested on January 19, 2006.
Effective Date: The bill takes effect 90 days after adjournment of session in which bill is passed.