§13.2 - Authority to Exercise Power

• Jurisdiction: Washington

§13.2Authority to Exercise Power

The right of eminent domain is generally stated in the jurisdiction's enabling authority under rights and powers. The issue of what can be acquired varies depending upon the agency involved. Not every entity holds the same authority to exercise its right to condemn property. All courts give leeway to governments to fulfill their missions, but it should not be assumed public entities have a blanket authority to exercise eminent domain. The authority to take is strictly construed and must be specifically delegated. Further, when necessity is determined by a governing body, that decision cannot be substituted or supplemented by one of its agents. See, e.g., Cowlitz County v. Martin,142 Wn. App. 860, 177 P.3d 102 (2008), reviewdenied, 164 Wn.2d 1021 (2008) (holding that Cowlitz County was not given the authority to condemn for salmon habitat, and prosecuting attorney could not supplement the decision making or rationale for the taking made by the county commissioners to make the taking a permissible exercise of county authority). First and foremost it is imperative to understand the rights and authority of the condemning agency.

(1) What can be acquired?

Courts have shown a tendency to view the specific references to the condemnation authority broadly. City of Blaine v. Feldstein, 129 Wn. App. 73, 117 P.3d 1169 (2005). Arguably, courts have expanded the general power of eminent domain through great deference to the legislative bodies. See HTK Mgmt., L.L.C. v. Seattle Popular Monorail Auth., 155 Wn.2d 612, 121 P.3d 1166 (2005). Different entities, nevertheless, have been granted varying levels of condemnation authority, which may affect not only what can be acquired, but how.

For example, fire districts organized under Title 52 RCW can acquire property through the use of eminent domain under RCW 52.12.041, which states:

The taking and damaging of property or property rights by a fire protection district to carry out the purposes of its organization are declared to be for a public use. A district organized under this title may exercise the power of eminent domain to acquire property or property rights either inside or outside the district, for the use of the district. A district exercising the power of eminent domain shall proceed in the name of the district in the manner provided by law for the appropriation of real property or of real property rights by private corporations. (Emphasis added).

Sewer and water districts organized under Title 57 RCW may acquire property similarly to cities of the second class. Other special purpose districts, such as Sound Transit, and public facilities districts exercise eminent domain under special legislation particular to that agency only. Thus, it is very important to determine under what authority the agency is condemning.

(2) How will the property be acquired?

The statutory authority should be examined first as this may impact the client's negotiating position. In addition, certain agencies have internal policies that may restrict when and how involuntary acquisition procedures can be used.

Practice Tip: Familiarize yourself with Title 8 RCW. Note that different public and quasi-public entities have varying prerequisites and procedures to follow to condemn real property for a public use.

(3) What is needed and why?

The decision of necessity is legislative and will only be defeated by a showing of "actual fraud or such arbitrary and capricious conduct as would amount to constructive fraud." See City of Tacoma v. Welcker, 65 Wn.2d 677, 684, 399 P.2d 330 (1965). As a practical matter, necessity is generally based on recommendations of staff engineers and consultants who focus on considerations such as construction costs, scheduling, and convenience of contractors. These considerations do not necessarily coincide with the views or values of property owners. When compensation is sought, public agencies may see the impact of the condemnations much differently than the property owners. Property owners may well view the condemnation in "human terms," including disruption of lifestyle and aesthetics; on the other hand, public agencies responsible for the broader societal concerns may be more likely to view the impacts as comparatively minimal.

Example: A condemning agency applies a blanket temporary construction easement covering the entire parcel— not just the permanent easement area— for the duration of the construction project a

...