§13.8 - Condemnation Proceedings

• Jurisdiction: Washington

§13.8CONDEMNATION PROCEEDINGS

Title 8 RCW sets forth the statutory procedures for eminent domain actions.

Preparation of a condemnation action does not differ substantially from any other trial. Interrogatories and depositions are important tools to avoid surprise; careful preparation of expert and lay witnesses is fundamental; physical and photographic evidence and other exhibits are essential. It is absolutely crucial to understand your subject in this case, the property.

(1) Petition of eminent domain

Condemnation action usually begins with an offer letter made by an acquisition agent, after which negotiations commence. If initial negotiations between the property owner and condemning authority do not result in an agreement, the property owner is served with a petition for eminent domain.

The petition is filed in the county where the property is situated. It sets forth with reasonable certainty the description of the property and states the objective for which the property is to be acquired. It names each and every owner with an interest in and to the property. Finally, it asks that the court or jury ascertain the amount of compensation to be paid for the taking of the property.

No written response to the petition is required. See State ex rel. McPherson Bros. Co. v. Superior Court, 148 Wash. 203, 268 P. 603 (1928). However, a notice of appearance must be entered to avoid default.

Practice Tip: Order a litigation guarantee to assure all parties with an interest in the property are named. Also, do not overlook any tenant or lienholder.

(2) Hearing on the order adjudicating public use

The superior court must make three major findings prior to entering an order adjudicating public use and necessity. The court must find that: (1) the proposed use is a public use; (2) the public interest requires it; and (3) the property to be appropriated is necessary for that use. See State ex rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 817, 966 P.2d 1252 (1998), review denied sub nom. State ex rel. Wash. State Convention & Trade Ctr. v. Allerdice, 143 Wn.2d 1003 (2001); State ex rel. Wash. State Convention & Trade Ctr. v. Allerdice, 101 Wn. App. 25, 1 P.3d 595 (2000), review denied, 143 Wn.2d 1003 (2001).

Although the parties may stipulate to the determination of public use and necessity, the question of whether the project is a public use is determined by the court "without regard to any legislative assertion that the use is public." Wash. Const. art. 1, § 16 (amend. 9). Even when there exists a legislative declaration of public use, the court may disregard such assertion if it believes it to be unfounded. See State ex rel. Andersen v. Superior Court, 119 Wash. 406, 205 P. 1051 (1922).

At the hearing on the order adjudicating public use, the condemning agency generally will file a certified copy of a resolution authorizing the acquisition and a map showing the property to be acquired. The testimony of the engineer indicating why this property is essential for the project usually is provided with the resolution.

The property owner's counsel should determine whether the condemning agency does in fact have legislative authority to acquire the property under consideration. There may have been no delegation of authority to the body attempting to exercise the power. See King County v. City of Seattle, 68 Wn.2d 688, 414 P.2d 1016 (1966), in which the court held that the condemnor did not have either express or implied power clearly attributable to delegation from the state, and, therefore, a challenge to the application for an order adjudicating public use was sustained.

Public use and necessity can only be defeated with a showing that the use for which the property is taken is not a public use or that the legislative body's determination that the property is necessary for that use is arbitrary and capricious or is tantamount to a constructive fraud.

In Smith v. Hollenbeck, 48 Wn.2d 461, 464, 294 P.2d 921 (1956), the court stated: "[A]ction is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Further, the court has held that fraud or constructive fraud would only occur if the public use is merely a pretext to effectuate a private use on the condemned property. See Evans, 136 Wn.2d at 823; Allerdice, 101 Wn. App. 25.

Comment: An excellent summation of this issue is found in City of Tacoma v. Welcker, 65 Wn.2d 677, 399 P.2d 330 (1965), in which the court defines the concepts of public necessity and arbitrary and capricious action, citing many Washington cases.

Caveat: Failure to follow legislative procedures also may be grounds for the court to deny a finding of public use and necessity. In State ex rel. Sternoff v. Superior Court, 52 Wn.2d 282325 P.2d 300 (1958), a case in which the owner was able to prove that there had been no limited access hearing, he ultimately was able to retain both access rights and about six acres of valuable property.

(3) Discovery

RCW 8.25.120 makes special provisions relating to discovery in eminent domain cases. It provides as follows:

After the commencement of a condemnation action, upon motion of either the condemnor or condemnee, the court may order, upon such terms and conditions as are fair and equitable the production and exchange of the written conclusions of all the appraisers of the parties as to just compensation owed to the condemnee, as prepared for the purpose of the condemnation action, and the comparable sales, if any, used by such appraisers. The court shall enter such order only after assurance that there will be mutual, reciprocal and contemporaneous disclosures of similar information between the parties.

Although RCW 8.25.120 restricts the disclosure of certain appraisal information to a "reciprocal" exchange of information, other discovery methods may be used, such as requests for production, depositions, inspection of property, etc.

Comment: You may be able to responsibly reduce a property owner's costs by skipping the public use and necessity hearing. Bear in mind, however, that the hearing process may provide an opportunity for you and your client to familiarize yourself with the project and observe government witnesses. Be mindful of the fact that public use and necessity may be determined by a court upon affidavit and without the presentation of live testimony or oral argument. The statute requires that the same procedures be used as in other civil motions, and therefore evidentiary hearings are discretionary with the trial court and are generally only held when there are relevant factual or credibility issues in dispute. See City of Blaine v. Feldstein, 129 Wn. App. 73, 117 P.3d 1169 (2005). Note that if you do intend to request a finding of public use and necessity upon affidavit on an uncontested motion calendar, it is best to seek prior approval from the court, as the decision to proceed without a hearing is discretionary.

Practice Tip: See if the condemning agency is amenable to staking out the acquisition area on the ground. This might be done as part of engineering for the project and may provide valuable visible information the parties and their respective expert witnesses can use in evaluating damages.

Practice Tip: Prior to conducting depositions, exchange appraisal information. Following exchange of appraisal information, obtain a copy of any studies or data relied upon by the appraiser. Secure a copy of any surveys on the property prepared by the opposing party. Also, prior to taking the deposition of an opposing appraiser, the property owner should have the take area and/or permanent easements and temporary construction easements marked on the ground by the project engineer. Suggest and attend an on-site meeting with opposing counsel, the project engineer, the property owner, the property owner's appraiser, and all other experts concerned with the condemnation appraisal process.

(4) Trial

The sole purpose of an eminent domain trial is to determine just compensation, which is the only issue before the court. Tangential issues, such as identity of ownership due to adverse possession claims, should be resolved after the compensation phase in an "appointment" hearing, unless they affect the property's value.

(a) Opening statements

As in other civil trials, opening statements allow the parties an opportunity to provide a preview of the evidence to be presented to the judge and jury. It is also an opportunity to introduce some of the concepts of just compensation and how properties are valued. Equally important, it is an opportunity to highlight the impacts, if any, the project will have on the remaining property, if only a portion of the property is acquired.

(b) Expert Witnesses

The types of expert witnesses used in a given case depend upon the property and the potential damages. In any condemnation case, the primary expert witness is the real estate appraiser who will render an opinion as to the value of the property taken and the amount of damages to the remainder property as a result of the project. Other experts also may be needed to accurately value the property and damages resulting from the project...