§13.6 - Compensation

• Jurisdiction: Washington

§13.6 COMPENSATION

Property owners whose lands have been taken or damaged under eminent domain are entitled under the law to just compensation, as discussed throughout this chapter. The often-stated goal for just compensation is that property owners be put in the same position monetarily as they would have been in had their property not been taken. Often, however, various expenses or value losses by the property owner go uncompensated. In some cases, property owners are not entitled to monetary compensation despite the taking or damaging of their property. See §13.6(2), below.

Just compensation is defined as the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking. This includes the value of the property taken and damages, if any, caused to the remainder by reason of the taking, offset by the amount of special benefits, if any, accruing to the remainder of the property as a result of the project that necessitated the condemnation action. See City of SeaTac v. Cassan, 93 Wn. App. 357, 361, 967 P.2d 1274 (1998). See §13.7, below, for a discussion of property valuation, including fair market value, highest and best use, special benefits, etc.

(1) Compensable damages

Property is only valuable, in the legal sense, for its associated rights. However, those rights are numerous and varied, and there are many elements of compensable damages, including everything from air rights to subterranean construction easements. Any element that reduces the value of the property as a direct result of the project may be considered a compensable damage. There is no single statute that enumerates all compensable damages; neither is there one formula that adequately calculates the value of damages to any and all property. State v. Paul Bunyan Rifle & Sportsman's Club, Inc., 132 Wn. App. 85, 130 P.3d 414, review denied, 158 Wn.2d 1021 (2006).

Under the state constitution, it is up to the courts to determine whether there exists a legal basis for damages, and up to a jury to decide the monetary compensation owed the property owner. See Wash. Const. art. 1, § 16 (amend. 9).

A property owner may waive the right to a judicial determination by jury and enter into an agreement with the condemning agency. However, in all cases, payment must be made in money to the registry of the court for the benefit of the owner or directly to the condemnee before the condemning agency can take possession and use of the property.

Property owners cannot be compelled to accept other rights or property in lieu of money to satisfy the just compensation requirement. See State v. Smith, 25 Wn.2d 540, 171 P.2d 853 (1946). An exception may be made when the state's action for the benefit of the property owner can be characterized as something other than compensation (e.g., mitigation of damages); then such benefit will not be deemed to be in lieu of money. See State v. Ward, 41 Wn.2d 794, 252 P.2d 279 (1953).

(2) Noncompensable damages

Property owners may sometimes perceive a taking when government actions have resulted in noncompensable damage or loss. It can, in fact, be difficult at times to distinguish between compensable damage and noncompensable damage resulting from government activity.

(a) Police powers

The general rule is that eminent domain takes private property for public use, and the police power regulates the use and enjoyment of property. See Cougar Business Owners Ass'n v. State, 97 Wn.2d 466, 647 P.2d 481, cert. denied, 459 U.S. 971 (1982). Damages to property resulting from a state's use of police power may not be compensable. See State v. Fox, 53 Wn.2d 216, 332 P.2d 943 (1958); Rains v. Wash. Dep't of Fisheries, 89 Wn.2d 740, 575 P.2d 1057 (1978). If police...