BILL REQ. #:  H-1223.2 

Read first time 02/07/2007.   Referred to Committee on Judiciary.

     AN ACT Relating to limiting the power of eminent domain; amending RCW 8.04.070, 8.08.020, 8.12.030, 8.20.070, 8.25.010, and 8.25.020; and adding a new chapter to Title 8 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 8.04.070 and 1988 c 202 s 6 are each amended to read as follows:
     (1) At the time and place appointed for hearing the petition, or to which the hearing may have been adjourned, if the court has satisfactory proof that all parties interested in the lands, real estate, premises or other property described in the petition have been duly served with the notice, and is further satisfied by competent proof that the contemplated use for which the lands, real estate, premises, or other property are sought to be appropriated is really necessary for the public use of the state, it shall make and enter an order, to be recorded in the minutes of the court, and which order shall be final unless appellate review thereof is sought within five days after entry thereof, adjudicating that the contemplated use for which the lands, real estate, premises or other property are sought to be appropriated is really a public use of the state.
     (2) Private property shall be taken by the state only for public use and no greater interest shall be taken than is necessary to accomplish the public use. "Public use" means only the actual possession, occupation, and use of the property by the general public or by the state; or the use of land for the creation or functioning of public utilities or common carriers such as railroads, utilities, or toll roads. The taking of private property by the state for economic development does not constitute public use.

Sec. 2   RCW 8.08.020 and 1949 c 79 s 2 are each amended to read as follows:
     ((Any condemnation, appropriation or disposition intended in RCW 8.08.010 through 8.08.080 shall be deemed and held to be for a county purpose and public use within the meaning of RCW 8.08.010 through 8.08.080 when it is directly or indirectly, approximately or remotely for the general benefit or welfare of the county or of the inhabitants thereof.))
     Private property shall be taken by the county only for public use and no greater interest shall be taken than is necessary to accomplish the public use. "Public use" means only the actual possession, occupation, and use of the property by the general public or by the county; or the use of land for the creation or functioning of public utilities or common carriers such as railroads, utilities, or toll roads. The taking of private property by the county for economic development does not constitute public use.

Sec. 3   RCW 8.12.030 and 1915 c 154 s 1 are each amended to read as follows:
     (1) Every city and town and each unclassified city and town within the state of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property for streets, avenues, alleys, highways, bridges, approaches, culverts, drains, ditches, public squares, public markets, city and town halls, jails and other public buildings, and for the opening and widening, widening and extending, altering and straightening of any street, avenue, alley or highway, and to damage any land or other property for any such purpose or for the purpose of making changes in the grade of any street, avenue, alley or highway, or for the construction of slopes or retaining walls for cuts and fills upon real property abutting on any street, avenue, alley or highway now ordered to be, or such as shall hereafter be ordered to be opened, extended, altered, straightened or graded, or for the purpose of draining swamps, marshes, tidelands, tide flats or ponds, or filling the same, within the limits of such city, and to condemn land or property, or to damage the same, either within or without the limits of such city for public parks, drives and boulevards, hospitals, pesthouses, drains and sewers, garbage crematories and destructors and dumping grounds for the destruction, deposit or burial of dead animals, manure, dung, rubbish, and other offal, and for aqueducts, reservoirs, pumping stations and other structures for conveying into and through such city a supply of fresh water, and for the purpose of protecting such supply of fresh water from pollution, and to condemn land and other property and damage the same for such and for any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed by this chapter.
     (2) Private property shall be taken by the city, town, or other municipality, only for public use and no greater interest shall be taken than is necessary to accomplish the public use. "Public use" means only the actual possession, occupation, and use of the property by the city, town, or other municipality; or the use of land for the creation or functioning of public utilities or common carriers such as railroads, utilities, or toll roads. The taking of private property by the city, town, or other municipality for economic development does not constitute public use.

Sec. 4   RCW 8.20.070 and 1927 c 88 s 1 are each amended to read as follows:
     (1) At the time and place appointed for hearing said petition, or to which the same may have been adjourned, if the court or judge thereof shall have satisfactory proof that all parties interested in the land, real estate, premises, or other property described in said petition, have been duly served with said notice as above prescribed, and shall be further satisfied by competent proof that the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use, or is for a private use for a private way of necessity, and that the public interest requires the prosecution of such enterprise, or the private use is for a private way of necessity, and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise, the court or judge thereof may make an order, to be recorded in the minutes of said court, directing that a jury be summoned, or called, in the manner provided by law, to ascertain the compensation which shall be made for the land, real estate, premises or other property sought to be appropriated, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law.
     (2) Private property shall be taken by the corporate or governmental entity only for public use and no greater interest shall be taken than is necessary to accomplish the public use. "Public use" means only the actual possession, occupation, and use of the property by the corporate or governmental entity; or the use of land for the creation or functioning of public utilities or common carriers such as railroads, utilities, or toll roads. The taking of private property by the corporate or governmental entity for economic development does not constitute public use.

Sec. 5   RCW 8.25.010 and 1965 ex.s. c 125 s 1 are each amended to read as follows:
     In all actions for the condemnation of property, or any interest therein, at least thirty days prior to the date set for trial of such action the condemnor shall serve on each condemnee who has made an appearance in the action:
     (1) A written statement showing the amount of total just compensation to be paid in the event of settlement ((on each condemnee who has made an appearance in the action)); and
     (2) A written statement documenting the condemnor's consideration of and reasons for rejecting alternatives to the condemnation sought or to the nature or extent of the condemnation sought, including but not limited to any reasonable alternative suggested in writing by a condemnee at least sixty days prior to the date set for trial.

Sec. 6   RCW 8.25.020 and 1999 c 52 s 1 are each amended to read as follows:
     There shall be paid by the condemnor in respect of each parcel of real property acquired by eminent domain or by consent under threat thereof, in addition to the fair market value of the property, a sum equal to the various expenditures actually and reasonably incurred by those with an interest or interests in said parcel in the process of evaluating the condemnor's offer to buy the same, ((but not to exceed a total of seven hundred fifty dollars)) such expenditures to include, but not be limited to, reasonable fees of appraisers, attorneys, architects, engineers, or others reasonably retained by the condemnee. In the case of multiple interests in a parcel, the division of such sum shall be determined by the court or by agreement of the parties. To the extent that payment of any such expenditures is not made under other provisions of this chapter or under other law, the condemnor shall pay for expenditures as required by this section regardless of whether a trial of the condemnation action is held and regardless of the outcome of any trial that is held.

NEW SECTION.  Sec. 7   It is the intent of this title, and the provisions of this title shall be so construed, that the powers of eminent domain shall be exercised solely for public use, except private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes consistent with Article I, section 16 of the state Constitution. The power of eminent domain may be exercised only for a stated public use and all grants and exercise of the power of eminent domain shall be strictly construed. Public use shall not be equated with public purpose, public interest, or public benefit, such as promoting economic development, creating jobs, improving the tax base, or enhancing tax revenues by building, expanding, or upgrading private retail, commercial, industrial, or residential establishments. The legislature intends that economic development as contemplated by the United States supreme court decision in Kelo v. City of New London, 545 U.S. 469 (2005) is not and shall not be construed as public use.

NEW SECTION.  Sec. 8   (1) Upon a final order adjudicating eminent domain proceedings, the land, real estate, premises, or other property described in the appropriating petition shall not be used for any use, whether public or private, in whole or in part, other than the contemplated and actual public use described in the final order of condemnation. The contemplated and actual public use described in the final order of condemnation shall be the sole use permitted. Incidental private uses are prohibited.
     (2) A final order of condemnation shall be voidable if a person with interest in land that has been condemned files a petition to void the order of condemnation and shows: (a) That the land, real estate, premises, or other property described in the appropriating petition was never physically and substantially put to the contemplated and actual public use described in the final order of condemnation and that more than ten years has passed since the date of the final order of condemnation, or (b) that the land, real estate, premises, or other property described in the appropriating petition was put to any use inconsistent with the contemplated and actual public use described in the final order of condemnation after the date of the final order of condemnation.
     (3) Any person who prevails in an action to void, in whole, a final order of condemnation under this section appropriating lands, real estate, premises, or other property described in the appropriating petition shall pay back the amount of compensation received in the eminent domain proceedings with interest at the market rate. Any person who prevails in an action to void, in part, a final order of condemnation under this section appropriating land, real estate, premises, or other property described in the appropriating petition shall pay back an amount of the compensation received in the eminent domain proceedings with interest at the market rate with said amount to be ascertained and determined by the court. Upon payment of said compensation with interest to the court, that interest in the appropriated land, real estate, premises, or other property which is voided in the final order of condemnation shall be transferred back to the person whose interest was appropriated.
     (4) Any person who prevails in an action to void, in whole or in part, a final order of condemnation under this section shall be entitled to reasonable attorney fees and costs.
     (5) Except as otherwise provided in subsections (1) through (4) of this section, if any land, real estate, premises, or other property ceases to be used for the contemplated and actual public use described in a final order of condemnation, the previous owner of the land, real estate, premises, or other property, or a beneficiary of the previous owner, has the first right to reacquire the land, real estate, premises, or other property for the amount of the compensation received in the eminent domain proceedings with interest at the market rate, or the fair market value, whichever is less, before the land, real estate, premises, or other property may otherwise be sold or transferred. Upon petition to the court and payment of said compensation with interest, or fair market value, to the court, that interest in the appropriated land, real estate, premises, or other property which has ceased to be used shall be transferred upon order of the court back to the previous owner, or beneficiary of the previous owner, who has exercised the right to reacquire the land, real estate, premises, or other property.

NEW SECTION.  Sec. 9   Sections 7 and 8 of this act constitute a new chapter in Title 8 RCW.