§13.1 - Introduction

• Jurisdiction: Washington

§13.1 INTRODUCTION

Following the United States Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), political and legal prognosticators across the country predicted a political backlash. Virtually every state legislature introduced, considered, or passed laws limiting the use of eminent domain. Local governments also considered measures to protect property owners. In spite of this reaction, more homes, businesses, and even churches are now threatened with seizure. As our population increases and societal demands for public facilities and infrastructure increase, eminent domain will continue to be an expanding and dynamic area of law.

This chapter is designed to provide a basic overview of eminent domain litigation in procedural and substantive law. A review of this chapter will provide a beginning practitioner with sufficient knowledge and insight to address most issues in an eminent domain action, whether representing a condemning authority or a property owner.

In Washington state, an eminent domain action occurs in three phases: the first is the determination of public use and necessity; the second is the amount of just compensation to be paid to the owner; and the third is the payment of that just compensation to the owner and the transfer of title to the condemning authority. See Mercer Island Sch. v. Victor Scalzo, Inc., 54 Wn.2d 539, 540, 342 P.2d 225 (1959); Des Moines v. Hemenway, 73 Wn.2d 130, 138, 437 P.2d 171 (1968).

The eminent domain process begins on a legislative level. A condemning authority, whether a city, county, or the state, first notifies a property owner that it is contemplating taking property for public use. Thereafter, the condemning authority conducts a hearing at which a determination is made that the acquisition of property is necessary for public use. The property owner is then notified that there is a public need for the property under eminent domain, and an offer of "just compensation" is made. Just compensation is the amount paid to the property owner for the taking and/or damaging of the property, reflecting the property's value as measured in dollars.

If negotiations for the acquisition of the property are unsuccessful, the government may then initiate a condemnation action through the filing of a "petition" for eminent domain, asking the court to declare that the property is necessary for public use and requesting a judge or jury to determine just compensation. Similar to a complaint, the petition is served by summons upon the property owner and all other parties with an interest in the property. However, unlike a complaint in typical civil actions, no answer is required because the only issues before the court have...